UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

FEDERAL DEPOSIT INSURANCE

)
)
CORPORATION, )
)
Plaintiff, )
)
v. )
)
BANK OF AMERICA, N.A. ) CiVil ACtiOn NO. 17-36 (EGS)
) REDACTED
)

Defendant. )
)

 

MEMDRANDUM OPINION

I. Introduction

Every quarter, insured banking institutions make payments,
known as “assessments,” into the Deposit Insurance Fund
(“Fund”), which insures depositors’ accounts up to $250,000.
Pursuant to the Federal Deposit Insurance Act (“FDIA" or “Act”),
see 12 U.S.C. § 1817, the Federal Deposit Insurance Corporation
(“FDIC”) created a “risk-based” system to calculate each
institution’s assessment based on that institution’s self-
reported, quarterly data. The FDIC alleges that defendant Bank
of America, N.A. (“BANA”) improperly reported its quarterly
data, thereby underpaying for deposit insurance. According to
the FDIC, BANA owes $1.12 billion in deposit insurance

assessments, which it refuses to pay.

The FDIC’s amended complaint alleges that (l) BANA failed
to pay mandatory assessments in violation of the FDIA; and (2)
BANA was unjustly enriched when it received deposit insurance
without fully paying for it. BANA counterclaimed, challenging
the FDIC'S regulations, which purportedly set out the method by
which regulated institutions must calculate and report their
quarterly data. BANA argues that the regulations violate the
Administrative Procedure Act, 5 U.S.C. § 500 et seq., and are
contrary to the FDIA. Pending before the Court is BANA's motion
to dismiss the FDIC's amended complaint in part or strike in
part. See Def.’S Mot., ECF No. 13.1 After careful consideration
of the motion, the response, the reply thereto, and the
applicable law, BANA's motion to dismiss or strike the FDIC’s
amended complaint in part is DENIED.
II. Background

The FDIC is a “government corporation and instrumentality
of the United States.” Am. Compl., ECF No. 10 I 16. It examines
and supervises almost 3,800 commercial banks and savings
institutions for operational safety and soundness. Id. It also
administers the Fund, which provides deposit insurance to over

5,000 banks and savings institutions, insuring accounts of up to

 

1 When citing electronic filings throughout this opinion, the
Court cites to the ECF page number, not the page number of the
filed document.

$250,000 per depositor. Id. IL 2, 16. If an institution fails,
the FDI¢ ensures that the depositors are able to access their
insured accounts at that institution; if the institution’s
assets are insufficient to return all insured deposits, the FDIC
pays the balance from the Fund. Id. L 21.

As required by the FDIA, the FDIC finances the Fund with
assessments collected from FDIC-insured institutions. Id. I 24.
To determine the amount that each institution must pay, the FDIC
utilizes a “risk-based” assessment system. Id. The system
calculates each assessment rate based on that institution’s
“risk profile.” Id. The risk profile captures the probability
that the institution will fail and, in the event of failure, the
potential amount of loss that the Fund will bear. Id. To
determine each institution’s risk profile, the FDIC implemented
a “regulatory regime” that requires certain institutions to
self-report specific data via quarterly “Call Report[s].” Id. LI
29, 32. This data, which includes the amount.that the
institution has lent to Other entities, is intended to capture

the risk of failure.2 Id. LL 30-39. Because BANA is one of the

 

2Given the early stage of this litigation and the fact that the
arguments addressed in this Memorandum Opinion relate to the
parties' legal arguments regarding the sufficiency of the
complaint, the Court does not set forth the details of the
complex underlying regulatory scheme.

largest insured institutions, it is subject to the FDIC's
assessment system and must report its quarterly data. Id. L 25.

The FDIC alleges that, from the second quarter of 20113
through the fourth quarter of 2014, BANA improperly reported its
quarterly data, thereby understating its risk profile. Am.
Compl., ECF No. 10 I 43. As a result, the FDIC underbilled BANA
for deposit insurance. Had BANA properly reported its data, it
allegedly would have owed the FDIC an additional $1.12 billion
in assessment payments. Id. II 48, 60. According to the FDIC,
BANA knew how to properly report its data but “decided not to
[do so].” Id. IL 57-59. Instead, it “certified as true and
Correct,” pursuant to the FDIA, every Call Report at issue. Id.
L 68 (referring to 12 U.S.C. § 1817(a)(3)). The FDIC purportedly
did not “learn[] the full extent of [BANA's] reporting failure”
until 2016. Id. T 9. The FDIC thereafter invoiced BANA for the
$1.12 billion it allegedly owes. Id. LL ll, 65. BANA purportedly
refuses to pay. Id. T 12.

On January 9, 2017, the FDIC sued BANA for $542 million for
failing to pay its mandatory assessments from the second quarter

Of 2013 through the fourth quarter of 2014. See Compl, ECF No.

 

3 The FDIC concedes that BANA does not owe assessments for the
second, third, and fourth quarters of 2011. In its amended
Complaint, it seeks underpaid assessments from the first quarter
of 2012 through the fourth quarter of 2014. Am. Compl., ECF No.
10 T 43.

l. On April 7, 2017, the FDIC amended its complaint, adding a
claim for unjust enrichment. See Am. Compl., ECF No. 10 HI 72-
94. The amended complaint alleges that BANA owes the FDIC an
additional $583 million for underpayments predating the second
quarter of 2013. Id. The FDIC requests that the Court order BANA
to pay the full amount it owes, including interest, costs, and
disgorgement of profits unjustly earned. Id. T 22. On May 5,
2017, BANA filed a motion to dismiss or strike the FDIC’s
amended complaint in part for failure to state a claim for
relief pursuant to Federal Rule of Civil Procedure 12(b)(6). See
Def.’s Mot., ECF No. 13.
III. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal quotations and citations
omitted).

Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotations and citations omitted). A claim is facially
plausible when the facts pled in the complaint allow the court
to “draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The standard does not amount to
a “probability requirement,” but it does require more than a
“sheer possibility that a defendant has acted unlawfully.” Id.

“[W]hen ruling on a defendant's motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.” Atherton v.
D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(internal quotations and citations omitted). In addition, the
court must give the plaintiff the “benefit of all inferences
that can be derived from the facts alleged.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). Even so,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” are not sufficient to
state a claim. Iqbal, 556 U.S. at 678.
IV. Analysis

BANA moves to dismiss or strike in part the FDIC's amended
complaint for failure to State a claim. See Def.’s Mot., ECF No.
13. It makes three arguments: (l) the FDIC’s unjust enrichment
claim should be dismissed because the FDIA provides the FDIC

with an adequate legal remedy; (2) the FDIC’s unjust enrichment

claim should be dismissed because the FDIC did not allege unjust
enrichment as a matter of law; and (3) the FDIC's claims for
unpaid assessments predating the first quarter of 2013 should be
dismissed as time-barred. See id. at 6-7. The Court analyzes
each in turn.

A.The FDIC is Permitted to Plead Alternative Theories of
Liahility at This Stage of Litigation

BANA argues that the FDIC's claim for unjust enrichment
must be dismissed because unjust enrichment, an equitable
remedy, is not available when a plaintiff has an adequate legal
remedy. Def.’s Mot., ECF No. 13 at 12-17. BANA argues that Count
I-the FDIC’s FDIA claim for failure to pay mandatory assessments
pursuant to 12 U.S.C. § 1817(g)(1)-precludes the FDIC from
bringing Count II-its claim for unjust enrichment-because both
claims are “coterminous.” Id. Put differently, BANA argues that
the claims cannot coexist because they seek the “very same
relief” for the same alleged behavior. Id.

The FDIC responds with several arguments: (1) its unjust
enrichment claim should survive because the FDIA explicitly
authorizes the FDIC to pursue common-law claims alongside its
statutory claim, see Pl.'s Opp'n, ECF No. 21 at 24-25 (citing 12
U.S.C. § 1817(h)); (2) it may plead both claims because Federal
Rule of Civil Procedure 8(d) permits alternative theories of

liability, see id. at 25-27; (3) its claims may proceed because

the Third Restatement of Restitution permits equitable claims
notwithstanding an adequate legal remedy, see id. at 27-28; and
(4) BANA’s argument is irrelevant because the FDIC is not
seeking equitable remedies, see id. at 29-32. Because the Court
is persuaded that the FDIC may plead alternate theories of
liability, it need not evaluate each of the FDIC's arguments.

Unjust enrichment is generally an equitable cause of
action. See, e.g., Ga Dep’t of Cmty. Health v. U.S. Dep’t of
Health & Human Servs., 79 F. Supp. 3d 269, 280-82 (D.D.C. 2015),
amended on other grounds by 110 F. Supp. 3d 95 (D.D.C. 2015),
Ordinarily, equitable remedies are not available when a
plaintiff has an adequate legal remedy. Terrace v. Thompson, 263
U.S. 197, 214 (1923) (“[A] suit in equity does not lie where
there is a plain adequate and complete remedy at law . . . .”).
Such a proposition is “so well understood as not to require the
citation of authorities.” Id. That said, “[t]he mere existence
of a remedy at law is not sufficient to warrant denial of
equitable relief.” Ga. Dep't of Cmty. Health, 79 F. Supp. 3d at
281 (citing Council of & for the Blind of Delaware Cnty. Valley,
Inc. v. Regan, 709 F.2d 1521, 1550 n. 76 (D.C. Cir. 1983)).
Instead, “[t]he legal remedy, both in respect to the final
relief and the mode of obtaining it, must be ‘as efficient as
the remedy which equity would afford under the same

circumstances.'” Id. (quoting Regan, 709 F.2d at 1550, n. 76).

The Court must_therefore evaluate the plaintiff’s remedies under
the circumstances, a factual undertaking. See id.

Federal Rule of Civil Procedure 8(d)(2) authorizes a party
to “set out [two] or more statements of a claim or defense
alternatively or hypothetically, either in a single count
or in separate ones.” Therefore, “[i]t is not generally a ground
for dismissal of a complaint asserting equitable claims that the
plaintiff has an adequate remedy at law.” In re G-Fees Antitrust
Litig.} 584 F. Supp. 2d 26, 46 (D.D.C. 2008)(quoting 1 Moore’s
Fed. Prac. § 2.03[2] (Matthew Bender 3d ed.)(“Unjust enrichment
is a common law equitable claim, available only where there is
no adequate remedy at law. Rule 8, however, expressly permits
pleading in the alternative . . ., even where [the plaintiff]
appear[s] to have an adequate remedy at law.”). Guided by that
principle, courts in this Circuit have repeatedly denied motions
to dismiss equitable claims, even when adequate legal remedies
were available. See United States v. First Choice Armor &
Equip., 808 F. Supp. 2d 68, 77-78 (D.D.C. 2011) (declining to
dismiss the government's unjust enrichment claim against certain
defendants, despite the availability of a False Claims Act
statutory claim, because “Rule 8(d)(2) allows a plaintiff to
plead alternative theories of liability”); United States v.
Toyobo Co., 811 F. Supp. 2d 37, 52 (D.D.C. 2011) (“A plaintiff

in an [False Claims Act] action may plead-if not ultimately

recover upon-alternative common law theories.”); United States
ex rel. Purcell v. MWI Corp., 254 F. Supp. 2d 69, 79 (D.D.C.
2003)(“Accordingly, at the motion-to-dismiss stage, courts in
this district and elsewhere have permitted the government to
proceed with claims alleging [statutory] violations as well as
claims for unjust enrichment . . . .”). The Court finds this
reasoning persuasive, and declines to adopt the reasoning of
courts in other Circuits cited by BANA. Def.’s Reply Mot., ECF
No. 25 at 10 n.l, 12.

Furthermore, the one case BANA cites from this Circuit is
inapplicable at this stage. BANA points to Georgia Department of
Community Health v. U.S. Department of Health & Human Services,
in which Judge Kessler allowed the unjust enrichment claim to
proceed, but “only after” determining that the plaintiff lacked
an adequate legal remedy. Def.’s Reply Mot., ECF No. 25 at 10
(discussing 79 F. Supp. 3d at 281). True, Judge Kessler did
examine whether the plaintiff had an adequate legal remedy, but
was able to do so on summary judgment. Ga. Dep’t of Health, 79
F. Supp. 3d at 281. Judge Kessler’s determination that the
plaintiff’s legal remedy was not “as efficient as the remedy
which equity would afford under the same circumstances,” was
necessarily factual. Id. (quoting Regan, 709 F.Zd at 1550 n.
76). At this early stage, the Court is unable to evaluate the

adequacy of the FDIC's legal remedy “in this situation.” See id.

10

Finally, BANA argues that its case is distinguishable from
the persuasive authority in this Circuit because the FDIC’S
legal remedy is “coterminous” with its unjust enrichment claimj
meaning the unjust enrichment claim “turn[s] entirely on whether
[BANA] violated the statute [FDIA] that provided the legal cause
of action.” Def.’s Reply, ECF No. 25 at 12. This argument is
unavailing. In United States ex rel. Purcell v. MWI Corporation,
the Court declined to dismiss the government's unjust enrichment
claim even though the government may have had an adequate legal
remedy via the False Claims Act. 254 F. Supp. 2d at 79. The
government's unjust enrichment claim also turned-as BANA puts
it- “entirely on” whether the defendants had violated the
statute. See id. at 73-74; Def.’s Reply, ECF No. 25 at 12.
Specifically, the government alleged: (1) the defendants had
violated the False Claims Act by making false statements in
order to obtain government payment; and (2) the defendants were
unjustly enriched because they received those payments as a
result of the same allegedly false statements. 254 F. Supp. 2d
at 73-74. Notwithstanding the fact that the False Claims Act's
remedies may have been “more than adequate,” the Court allowed
the plaintiff to plead alternative theories of liability at the
motion-to-dismiss stage. Id. at 78-79. Therefore, the Court
concludes that the FDIC may plead-if not ultimately recover

upon-alternative common law theories.

11

B.The FDIC Adequately Alleged an Unjust Enrichment Claim

BANA also argues that the FDIC's unjust enrichment claim
must be dismissed because the FDIC did not plead the first
element of unjust enrichment: that the FDIC conferred a benefit
upon BANA, Def.'s Mot., ECF No. 13 at 17-18. Rather, the FDIC
alleged that BANA failed to pay its assessment fees, as was
already legally required. Id. at 18. The FDIC contends that it
sufficiently pled that BANA was unjustly enriched because it
received a valuable benefit-deposit insurance-for which it
underpaid. Pl.'s Opp'n, ECF No. 21 at 34-37.

To state a claim for unjust enrichment, a plaintiff must
allege that: (1) the plaintiff conferred a benefit on the
defendant; (2) the defendant retained that benefit; and (3)
under the circumstances, the defendant’s retention of the
benefit was unjust. News World Commc’ns, Inc. v. Thompsen, 878
A.Zd 1218, 1222 (D.C. 2005). As relevant here, the Court of
Appeals for the District of Columbia Circuit (“D.C. Circuit”)
has interpreted the first element liberally, finding that a
plaintiff “confers a benefit” upon a defendant if it “in any way
adds to the other’s security or advantage . . . [or] adds to the
property or another . . . [or] saves the other from expense of
loss.” Bregman v. Perles, 747 F.3d 873, 878 (D.C. Cir. 2014)

(quoting Restatement (First) of Restitution § 1 (1937)).

12

The FDIC plainly alleged that it provided BANA with a
benefit, for which it underpaid. Am. Compl., ECF No. 10 LI 21-
23. At the very least, it is plausible that deposit insurance is
a “benefit,” as contemplated by the D.C. Circuit. AS the FDIC
puts it: “[d]eposit insurance afford[s] [BANA] the benefit of
being able to offer customers deposit accounts that are insured
against loss in the event of failure.” Id. q 23. Accepting the
FDIC's allegations as true, deposit insurance “allows [BANA] to
attract new customers and keep existing ones . . . [and] helps
[BANA] prevent a ‘bank run,’ during which a panic about [BANA's]
solvency could lead to queues of people seeking to withdraw
their money.” Id. To that end, deposit insurance plausibly “adds
to [BANA's] security” and “saves [BANA] from expense of loss.”
Bregman, 747 F.3d at 878. Moreover, the D.C. Circuit has
recognized that “equitable principles are not confined by rigid
formulas” and that a defendant can be “unjustly enrich[ed]
from paying too little.” Mitchell v. Riegel Textile, Inc., 259
F.2d 954, 956 (D.C. Cir. 1958). The FDIC alleged that BANA
“unjustly enriched itself at the expense of the FDIC” by paying
too little for deposit insurance and “retaining [the] $1.12
billion that it owes the FDIC.” Def.’s Mot., ECF No. 13 at 17-18
(quoting Am. Compl., ECF NO. 10 I 92).

BANA relies on Rapaport v. U.S. Department of Treasury for

the proposition that a defendant is not unjustly enriched, as a

13

matter of law, when it merely fails to pay what it already owes.
Def.’s Mot., ECF No. 13 at 18 (discussing 59 F.3d 212, 217-20
(D.C. Cir. 1995)). Rapaport is inapplicable. In that case, the
government provided deposit insurance to a financial association
on the condition that Rapaport, the majority shareholder of the
association, provide a certain amount of capital. Id. at 213-
214. When Rapaport failed to provide that capital, the
association failed and the government sued him for unjust
enrichment. Id. at 214, 217. The D.C. Circuit found that the
government failed to establish the first element of unjust
enrichment because the association-not Rapaport-received the
benefit (deposit insurance). Id. at 217-18. At most, Rapaport
received an “indirect benefit.” Id. Unlike this case, however,
the FDIC pled that BANA directly received a benefit-deposit
insurance-and it underpaid for that benefit, Id. at 217-18; see
Am. Compl., ECF No. 10 LI 21-23, 70-71.

C.It is Premature to Strike the FDIC's Claims as Untimaly

1.Count I: FDIA Claim
BANA argues that the Court should dismiss or strike the

FDIC's FDIA claim for the allegedly underpaid assessments from

14

the first4 quarter of 2012 through the first quarter of 20135 as
time-barred under the FDIA's “straightforward three-year statute
of limitations.” Def.’s Mot., ECF No. 13 at 19-21 (citing 12
U.S.C. § 1817(g)(2)). The FDIC contends that the claims should
not be dismissed because they are not conclusively time-barred
on the face of the complaint. Pl.'s Opp'n, ECF No. 21 at 37-45.
Instead, according to the FDIC, there are “contested questions
of fact” as to whether BANA’s actions fall within the FDIA's
exception, which tolls the statute of limitations when a
defendant made a false or fraudulent statement with intent to
evade any assessment. Id. at 38; 12 U.S.C. § 1817(g)(2)(C).6 BANA

argues that this exception is not applicable because the FDIC

 

4 Throughout its motion, BANA argues that the Court should
dismiss the FDIC’s claims starting at different quarters.
Compare Def.’s Mot., ECF No. 13 at 25 (arguing the Court should
dismiss the FDIC's claims for the “first quarter of 2012 through
the first quarter of 2013”) with id. at 19 (arguing the Court
should dismiss the FDlC’s claims for “the second quarter of 2012
through the first quarter of 2013”). The Court will assume that
BANA intends to strike the FDIC's claims starting the first
quarter of 2012.

Regardless, the starting
date does not change the Court’s analysis.
5 BANA concedes that the alleged underpayments for the second
quarter of 2013 through the fourth quarter of 2014 are subject
to a tolling agreement and are therefore not time-barred. Def.’s
Mot., ECF No. 13 at 20 n. 2.
6 The FDIC also argues that it can change an invoice's “due date”
by submitting revised invoices. Pl.'s Opp'n, ECF No. 21 at 45-
50. Because the Court finds that the FDIC’s claims are not
conclusively time-barred on the face of the complaint, it need
not evaluate this theory.

 

15

did not allege that BANA made a false or fraudulent statement
with intent to evade its assessments in its complaint. Def.’s
Mot., ECF No. 13 at 20-21.

Claims brought pursuant to the FDIA are subject to a three-
year statute of limitations: “any action . . . to recover from
an insured depository institution the underpaid amount of any
assessment Shall be brought within [three] years after the date
the assessment was due.” 12 U.S.C. § 1817(g)(2)(B). Payments are
“due” about ninety days after the end of each quarter. See 12
C.F.R. § 327.3(b)(2)(listing the assessment due dates for each
quarter). Pursuant the FDIA, there are two exceptions to the
statute of limitations, one of which is relevant here: “If an
insured depository institution has made a false of fraudulent
statement with intent to evade any or all of its assessment,”
the FDIC “shall have until [three] years after the date of
discovery of the false or fraudulent statement” to bring an
action. 12 U.S.C. § 1817(g)(2)(C).

“[B]ecause statute of limitations issues often depend on
contested questions of fact, dismissal is appropriate only if
the complaint on its face is conclusively time-barred.” Bregman
v. Perles, 747 F.3d 873, 875-76 (D.c. cir. 2014) (quoting de
Csepel v. Republic of Hungary, 714 F.3d 591, 603 (D.C. Cir.
2013)). A Court should therefore “hesitate to dismiss a

complaint on statute of limitations grounds” unless the

16

defendant has met its “heavy burden” to show that the complaint
is time-barred and there is no dispute as to “when the
limitations period began.” Feld Ent., Inc. v. Am. Soc’y for the
Prevention of Cruelty to Animals, 873 F. Supp. 2d 288, 308
(D.D.C. 2012) (quoting DePippo v. Chertoff, 453 F. Supp. 2d 30,
33 (D.D.C. 2006); Turner v. Afro-American Newspaper Co., 572 F.
Supp. 2d 71, 72 (D.D.C. 2008)).

Rather than establish that the complaint is conclusively
time-barred, BANA argues that the FDIA’s exception does not
apply because the FDIC failed to allege that BANA made a false
Or fraudulent statement with intent to evade assessments. Def.’s
Mot., ECF No. 13 at 20-21. The Court disagrees. A plaintiff does
not need to plead facts in its complaint to respond to a
potential affirmative defense. Beach TV Props. v. Solomon, 254
F. Supp. 3d 118, 133 (D.D.C. 2017). That a complaint is time-
barred is an affirmative defense that defendant must prove. See
Firestone v. Firestone, 76 F.3d 1205, 1210 (D.C. Cir.
1996)(noting that the fact that the plaintiff had pled
fraudulent concealment does not “mean that a plaintiff must
plead [an affirmative defense] in the complaint”). Therefore,
the FDIC had no obligation to allege “with particularity” that
BANA made false statements with the intent to evade assessment
payments because the FDIC is not obligated to anticipate BANA's

affirmative defenses. Def.’s Mot., ECF No. 13 at 21 (citing Fed.

17

R. Civ. P. 9(b)); Firestone, 76 F.3d at 1210; see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980) (finding there was “no basis
for imposing on the plaintiff an obligation to anticipate [a
qualified immunity defense] by stating in his complaint that the
defendant acted in bad faith” because the defendant bears the
burden to plead the affirmative defense). Applying this well-
settled precedent, the Court concludes that barring the FDIC's
claims at this stage is premature.

Furthermore, whether BANA made a false statement with
intent to evade its assessments is a “contested question[] of
fact,” precluding dismissal at the pleadings stage. Brcgman, 747
F.3d at 875-76. The Court finds that the FDIC has alleged facts
sufficient to allow the reasonable inference that BANA acted
with intent to evade assessments. Specifically, the FDIC alleges
that BANA should have known how to properly report its data
because the same compliance group was responsible for reporting
both BANA's and its parent corporation's quarterly data. Am.
Compl., ECF No. 10 TI 57-60. According to the FDIC, the parent
company reported its data to a different regulating entity

correctly, but BANA “decided not to” report its data to the FDIC

the same way. Id. at €'[ 58 (omphasis added) . _

that BANA “certified as true and correct” its reporting,

“despite the fact that [it] did not [do so].” Id. at l 68. All
three allegations, when taken as true, reasonably lead to the
inference that BANA deliberately underreported its risk data in
order to evade full assessment payments.

Likewise, assuming BANA did make a false statement with
intent to evade, BANA has not established that there is no
factual dispute as to “when the limitations period began.” Feld
Ent., Inc., 873 F. Supp. 2d at 308. To illustrate, the parties
dispute the date that the FDIC discovered any alleged false
statement. The FDIC argues that it did not discover BANA's
underpayments until 2016, while BANA argues that the FDIC was
aware of its reporting methodology as early as 2012. Compare
Def.’s Mot., ECF No. 13 at 21-22 n.3, with Am. Compl., ECF No.
10 l 65.

2.Count II: Unjust Enrichment Claim

BANA argues that the Court should also dismiss the FDIC’s
unjust enrichment claim for the same time period-the first
quarter of 2012 through the first quarter of 2013-because it is.
also time-barred under a three-year limitations period pursuant
to District of Columbia (“D.C.”) law, Def.’s Mot, ECF No. 13 at
22-24; Def.’s Reply, ECF No. 25 at 30-31. Alternatively, BANA
argues that the FDIA's three-year statute of limitations also
applies to the unjust enrichment claim because Section

1817(g)(2) “governs all ‘actions relating to assessments.'”

19

Def.’s Mot., ECF No. 13 at 22 (quoting with emphasis 12 U.S.C. §
1817(g)(2)). In response, the FDIC argues that (1) its unjust
enrichment claim is timely under the FDIA because the previously
discussed exception applies; and (2) its claim is timely under
D.C. law because the statute of limitations does not begin to
run until a defendant wrongfully refuses to pay, and BANA did
not refuse to pay its assessments until March 2017. Pl.’S Opp'n,
ECF No. 21 at 51. Finally, the FDIC argues that federal law,
which provides for a six-year statute of limitations, applies to
its unjust enrichment claim. Id. at 50-51 (citing 28 U.S.C. §
2415(a)).

The Court need not decide, at this stage of the proceedings,
which statute of limitations applies because BANA has not
established that the FDIC’s claims would be conclusively time-
barred under any of these limitations periods.

If the Court were to accept BANA's argument that it should
apply the FDIA’s three-year statute of limitations, the
previously discussed factual dispute arises. See supra Sec.
IV(C)(i). Therefore, the Court cannot dismiss the relevant
alleged underpayments as time-barred because it is plausible
that BANA made a false statement with the intent to evade
assessment payments, tolling the statute of limitations. See 12

U.s.c. § 1217(g)(2)(c).

20

Likewise, were the Court to accept BANA's argument that the
three-year statute of limitations pursuant to D.C. law governs,
another factual dispute arises. Def.’s Reply, ECF No. 28 at 30-
31. Under D.C. law, the three-year statute of limitations for
unjust enrichment claims begins to run “only when the enrichment
actually becomes unlawful, i.e., where there has been a wrongful
act giving rise to a duty of restitution.” Bregman, 747 F.3d at
876 (quoting News World Commc'ns v. Thompsen, 878 A.2d 1218,
1225 (D.C. 2005)(“[T]he statute of limitations begins to run
when the plaintiff's last service has been rendered and
compensation has been wrongfully withheld.”)). The FDIC argues
that BANA only wrongfully withheld payment once the FDIC
demanded it, which did not occur until after the FDIC discovered
the alleged underpayments in 2016 or 2017. Am. Compl., ECF No.
10 II 61-71. BANA argues that the FDIC knew that it had
allegedly withheld payments as early as 2012. See Def.’s Mot.,
ECF No. 13 at 21-22 n.3. Thus, BANA necessarily argues that the
Court should make a factual determination without the benefit of

discovery. The Court cannot do so at this stage.

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V. Conclusion
Accordinglyi_for the reasons set.forth in this Memorandum

Opinion, BANA's motion to dismiss or strike the FDIC’s amended
complaint in part is DENIED.

SO ORDERED.

Signed: Emmat G. Sullivan

United States District Judge
March 27, 2018

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