                Case: 13-10458       Date Filed: 05/30/2014       Page: 1 of 7


                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-10458
                               ________________________

                       D.C. Docket No. 6:12-cv-01383-ACC-TBS

DEREK PEREIRA,
CAMILA DE FREITAS,
individually and on behalf of all others
similarly situated,

                                                                      Plaintiffs - Appellants,

                                            versus

REGIONS BANK,
an Alabama Banking Corporation,

                                                                       Defendant - Appellee.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                       (May 30, 2014)

Before TJOFLAT, FAY, and ALARCÓN, ∗ Circuit Judges.


       ∗
         Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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PER CURIAM:

       Under Florida law, a financial institution “may not settle any check drawn

on it otherwise than at par.” Fla. Stat. § 655.85. 1 In Baptista v. JPMorgan Chase

Bank, N.A., 640 F.3d 1194 (11th Cir. 2011), we held that regulations promulgated

by the Office of Comptroller of the Currency (the “OCC”) pursuant to the National

Bank Act, 12 U.S.C. § 21 et seq., preempted Florida Statute § 655.85 with respect

to national banks. Id. at 1198. Here, we consider whether federal law preempts

§ 655.85 with respect to out-of-state state banks.2 We readily conclude that it does

and therefore affirm.




       1
           Florida Statute § 655.85 provides, in full,
       Whenever any check is forwarded or presented to an institution for payment,
       except when presented by the payee in person, the paying institution or remitting
       institution may pay or remit the same, at its option, either in money or in
       exchange drawn on its reserve agent or agents in the City of New York or in any
       reserve city within the Sixth Federal Reserve District; however, an institution may
       not settle any check drawn on it otherwise than at par. The provisions of this
       section do not apply with respect to the settlement of a check sent to such
       institution as a special collection item.
       2
           Article VI, clause 2 of the Constitution provides:
       This Constitution, and the laws of the United States which shall be made in
       pursuance thereof; and all treaties made, or which shall be made, under the
       authority of the United States, shall be the supreme law of the land; and the judges
       in every state shall be bound thereby, anything in the Constitution or laws of any
       State to the contrary notwithstanding.
Therefore, when a state statute conflicts with a federal law, the state statute must yield.
                                                   2
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                                          I.

       The facts in this case are straightforward. In July 2012, Derek Pereira and

Camila De Freitas each presented a check at a Regions Bank (“Regions”) branch.

The checks were drawn on Regions, for which Regions charged Pereira and De

Freitas a fee. Now, Pereira and De Freitas claim that they received “less than par

value” because they received less than the full amount of their checks.

       Pereira and De Freitas brought this lawsuit as a class-action on August 7,

2012. Their complaint raised four counts. Counts I and II alleged that Regions

settled a check presented by Pereira and De Freitas, respectively, at less than par,

in violation of Florida Statute § 655.85. Counts III and IV claimed that Regions

was unjustly enriched when it settled their check at less than par. The complaint

sought compensatory damages, or, in the alternative, an order disgorging the

money alleged to be wrongfully withheld from the plaintiffs.

       Regions moved to dismiss the complaint. With respect to Counts I and II,

Regions argued that § 655.85 does not apply to in-person check-cashing

transactions, is preempted by federal law, would violate the Dormant Commerce

Clause if applied against Regions, and does not provide a private right of action.

As to Counts III and IV, Regions claimed that Pereira and De Freitas failed to state

a claim for relief.


                                          3
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       The District Court dismissed the complaint, concluding that federal law

preempts § 655.85 and, because the unjust enrichment claims were premised on the

same facts, also preempted those claims.

       Pereira and De Freitas now appeal.

                                              II.

       12 U.S.C. § 1831a(j), which is titled “Activities of branches of out-of-State

banks,” provides, in pertinent part:

       The laws of a host State . . . shall apply to any branch in the host State
       of an out-of-State State bank to the same extent as such State laws
       apply to a branch in the host State of an out-of-State national bank.
       To the extent host State law is inapplicable to a branch of an out-of-
       State State bank in such host State pursuant to the preceding sentence,
       home State law shall apply to such branch.
12 U.S.C. § 1831a(j)(1). We conclude that this statute and our precedent, Baptista

v. JPMorgan Chase Bank, N.A., 640 F.3d 1194 (11th Cir. 2011), squarely

foreclose Pereira’s and De Freitas’s causes of action.

       Assuming for the sake of argument that Florida Statute § 655.85 would

prohibit Florida branches of out-of-state state banks from charging a fee to cash a

check presented in person,3 that law would apply “to the same extent” that it

applies to out-of-state national banks. See 12 U.S.C. § 1831a(j)(1). And, as


       3
         We acknowledge that Regions disputes this assumption. However, given our resolution
of the preemption question, we need not interpret how Florida law would apply to an out-of-state
state bank’s attempt to charge a fee for cashing a check in person.

                                               4
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explained previously, federal law preempts Florida Statute § 655.85 with respect to

national banks. See Baptista, 640 F.3d at 1198 (“[T]here is a clear conflict here:

the OCC specifically authorizes banks to charge fees to non-account-holders

presenting checks for payment. The state’s prohibition on charging fees to non-

account-holders . . . is in substantial conflict with federal authorization to charge

such fees.”). Therefore, even if § 655.85 would otherwise apply to Regions,

federal law preempts its application.4

       Although unnecessary to resolve the question at hand, we note that the

legislative history surrounding § 1831a(j)(1) supports our reading that Florida

Statute § 655.85 is preempted. When § 1831a(j)(1) first became law in 1994, it

read, “The laws of a host State . . . shall apply to any branch in the host State of an

out-of-State State bank to the same extent as such State laws apply to a branch of a

bank chartered by that State.” 12 U.S.C. § 1831a(j)(1) (1994) (emphasis added).

When Congress amended this subsection in 1997, the language was altered to read,

“The laws of a host State . . . shall apply to any branch in the host State of an out-

of-State State bank to the same extent as such State laws apply to a branch in the

host State of an out-of-State national bank.” 12 U.S.C. § 1831a(j)(1) (2012)


       4
         We find no merit in Pereira’s and De Freitas’s contention that because § 1831a(j)(1)
says “apply” and “application,” it somehow is not concerned with the enforceability of the host-
state law. Our decision in Baptista made no such distinction, and Pereira and De Freitas make no
attempt to explain how their reading comports with our prior precedent.

                                               5
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(emphasis added). The emphasized language clearly indicates that Congress

sought to alter how states regulate out-of-state state banks; from treating them the

same as in-state state banks to treating them as out-of-state national banks are

treated. Floor statements from Congress as it considered the amendment in 1997

support this reading.5

       The plain language of § 1831a(j)(1) along with its legislative history,

combined with binding circuit precedent, convince us that § 655.85 is preempted

as to out-of-state state banks. Therefore, Pereira and De Freitas have failed to state

a claim in Counts I and II of their complaint.

                                                III.

       Because federal law preempts Florida Statute § 655.85 with respect to

national banks, by operation of 12 U.S.C. § 1831a(j)(1), so too does it preempt

§ 655.85 with respect to Regions. And because Pereira and De Freitas have

premised their unjust enrichment claims on the same facts as they lay out in Counts

I and II, Counts III and IV are similarly preempted. 6




       5
          See, e.g., 143 Cong. Rec. 9063 (1997) (statement of Rep. Roukema) (“The essence of
this legislation is to provide parity between State-chartered banks and national banks. . . . [I]t
recognizes the importance of host State laws by requiring all out-of-State banks to comply with
host State laws . . . unless the State law has been preempted by national banks.”).
       6
         And even if they were not preempted, Baptista explains why their unjust enrichment
claims necessarily fail:

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       Accordingly, the District Court is AFFIRMED.

       SO ORDERED.




       “When a defendant has given adequate consideration to someone for the benefit
       conferred, a claim of unjust enrichment fails.” Am. Safety Ins. Serv., Inc. v.
       Griggs, 959 So.2d 322, 331–32 (Fla. Dist. Ct. App. 2007). Here, [the payee]
       requested to have the check cashed immediately upon presentment to [the bank],
       and in return, [the bank] requested a . . . fee. [The payee] agreed to the fee. If
       [the payee] had chosen to deposit the check in [his] own account and wait for
       processing, no fee would have been levied. The fee was only levied because [the
       bank] conferred an additional benefit on [the payee], that is, immediate payment
       of the check. Because [the payee] cannot show that [the bank] failed to give
       consideration . . . [his] claim for unjust enrichment fails as a matter of law.
Baptista, 640 F.3d at 1198 n.3.
                                               7
