FDIC Files Amicus Brief Supporting Preliminary Injunction Against Oregon’s DIDMCA Opt-Out Law

The Federal Deposit Insurance Corporation (“FDIC”) filed an amicus brief supporting the motion for a preliminary injunction filed by the National Association of Industrial Bankers (“NAIB”), the Online Lenders Alliance (“OLA”), and the American Financial Services Association (“AFSA”) in their challenge to Oregon’s recently enacted opt-out law. The FDIC explains that it has a substantial institutional interest in the case because it administers and enforces the Federal Deposit Insurance Act, including Sections 521 and 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (“DIDMCA”), the statutory provisions at the center of the litigation.

According to the FDIC, Oregon’s interpretation of its opt-out statute conflicts with DIDMCA’s text, structure, context, and purpose, is inconsistent with Congress’s intent, departs from contemporaneous federal regulatory guidance, and threatens the continued vitality of the nation’s dual banking system.

The brief emphasizes that Congress enacted Section 521 of DIDMCA to place state-chartered, FDIC-insured banks on an equal footing with national banks by permitting them to export the interest rates permitted by the laws of the state where the bank is located. Section 525, in turn, created only a narrow exception permitting a state to opt out with respect to “loans made in such State.” According to the FDIC, for more than four decades the banking industry and federal regulators have understood that the relevant inquiry under Section 525 focuses on where the bank makes the loan—not where the borrower resides.

The FDIC argues that Oregon’s statute fundamentally alters that understanding by treating a loan as “made” in Oregon based on the borrower’s residence or domicile. According to the agency, that borrower-focused approach effectively gives Oregon extraterritorial authority over loans originated by state banks chartered and located in other states and would substantially undermine the parity Congress sought to establish between state-chartered and national banks.

Perhaps most significantly, the FDIC relies heavily on its own historical interpretations of DIDMCA. The agency points to interpretive letters it issued in 1983 and 1988, as well as an amicus brief it filed in the First Circuit in 1992, all of which concluded that a state’s decision to opt out under Section 525 does not authorize it to apply its usury laws to loans made by state banks located outside the opt-out state merely because the borrower resides in the opt-out state. The FDIC also cites guidance from the former Federal Home Loan Bank Board and the Office of the Comptroller of the Currency that reached similar conclusions.

The brief is also notable for addressing the FDIC’s own shifting litigation position in the Colorado DIDMCA opt-out litigation. The agency acknowledges that it previously filed amicus briefs expressing a different interpretation of Section 525, but explains that it subsequently withdrew those briefs because they did not reflect the most natural reading of the statute and departed from the FDIC’s contemporaneous interpretations issued in the years much closer to DIDMCA’s enactment. The FDIC further argues that those earlier contemporaneous interpretations deserve greater persuasive weight under the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo.

The FDIC further argues that its longstanding General Counsel Opinion No. 11 confirms that where a loan is “made” depends upon where the bank performs its core lending functions, including loan approval, extension of credit, and disbursement of loan proceeds, not on the borrower’s residence. According to the agency, Oregon’s interpretation would create uncertainty, impose substantial operational burdens on interstate lending, and allow one state’s policy choices to interfere with the regulatory decisions made by other states that have elected not to opt out of DIDMCA.

The FDIC’s participation substantially strengthens the plaintiffs’ request for preliminary injunctive relief. Courts frequently accord considerable weight to the views of the federal agency charged with administering the statute at issue, particularly where, as here, the agency grounds its position in the statutory text, legislative history, and decades of administrative interpretations. The filing also underscores the national importance of the issues presented, which overlap with those currently pending before the en banc U.S. Court of Appeals for the Tenth Circuit in the Colorado DIDMCA opt-out litigation in which the FDIC recently submitted a similar amicus brief.

We will continue to monitor the Oregon litigation and report on additional amicus filings, Oregon’s opposition to the preliminary injunction motion (due August 11), any injunction hearing that gets scheduled by the Court, and the district court’s ruling on the plaintiffs’ request for preliminary injunctive relief.

Briefing in the Colorado en banc proceedings before the Tenth Circuit is complete and oral argument before the en banc court has been scheduled for August 18, 2026.

Ballard Spahr represents the plaintiff trade associations in the Oregon case and the amici consortium of other trade associations in the Colorado case.

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