## Facts

- Blackfeet National Bank, a national bank, licensed and marketed a product called the “Retirement CD” through an agreement with American Deposit Corporation.
- Customers made an initial deposit, selected a maturity date, and chose a fixed-rate period of one to five years; thereafter the rate fluctuated with cost of funds, with a stated floor.
- Customers could make limited additional deposits before maturity.
- At maturity, customers could withdraw up to two-thirds of the balance, and the remainder would be paid in equal periodic payments for the rest of the customer’s life.
- The product guaranteed that periodic payments would continue for life even if the account balance reached zero; if the customer died before full repayment of principal (as determined at maturity), remaining principal would be paid to the estate.
- Blackfeet advertised the Retirement CD nationally, including to Florida residents.
- Florida’s Treasurer/Insurance Commissioner commenced administrative proceedings, asserting Blackfeet was engaging in the business of insurance in Florida without complying with the Florida Insurance Code.
- Blackfeet notified the Office of the Comptroller of the Currency (OCC), which issued a “no-objection” letter characterizing the product as a permissible banking product under the National Bank Act.
- Blackfeet and ADC sued for declaratory relief, claiming the National Bank Act authorized the product and preempted Florida’s insurance regulation.

## Issues

1. Whether Florida’s application of its Insurance Code to the Retirement CD was preempted by the National Bank Act and the OCC’s interpretation of that Act.
2. Whether the McCarran–Ferguson Act permitted Florida’s insurance regulation to “reverse preempt” federal banking authority as applied to the Retirement CD.

## Decision

- The Eleventh Circuit affirmed summary judgment for the Florida Insurance Commissioner.
- The court held that McCarran–Ferguson preserved Florida’s authority to apply its Insurance Code to the Retirement CD, even assuming the OCC reasonably viewed the product as authorized under the National Bank Act.
- As a result, Florida could regulate the offering and marketing of the Retirement CD in Florida as insurance.

## Legal Principles

- Under the McCarran–Ferguson Act, a federal statute not specifically relating to the business of insurance cannot be construed to “invalidate, impair, or supersede” state laws enacted for the purpose of regulating the business of insurance.
- The National Bank Act is a general banking statute and does not specifically relate to the business of insurance for McCarran–Ferguson purposes.
- A state may treat a product as insurance where it contains life-contingent, actuarial-risk features, such as a contractual promise to make periodic payments for the customer’s lifetime even after the account balance is exhausted.
- Even where the OCC’s interpretation of national bank powers may merit deference in ordinary preemption analysis, McCarran–Ferguson can preserve conflicting state insurance regulation when its statutory conditions are met.

## Conclusion

The Eleventh Circuit held that Florida’s insurance laws could be applied to regulate the Retirement CD because McCarran–Ferguson reverse preemption prevented the National Bank Act and the OCC’s contrary view from displacing state regulation of insurance-related products.


Blackfeet Nat’l Bank v. Nelson, 171 F.3d 1237 (11th Cir. 1999)