                                                                                [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                FILED
                             _________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             MAY 11, 2011
                                    No. 10-13105
                                                              JOHN LEY
                             _________________________
                                                               CLERK

                      D. C. Docket No. 6:10-cv-00139-ACC-DAB

VIDA BAPTISTA,
for herself, and on behalf of others similarly situated,

                                                           Plaintiff-Appellant,

                                            versus

JPMORGAN CHASE BANK, N.A.,
a.k.a. Washington Mutual Bank,

                                                           Defendant-Appellee.

                             _________________________

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

                                      (May 11, 2011)

Before DUBINA, Chief Judge, HILL, Circuit Judge, and GOLDBERG,* Judge.



       *
        Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting
by designation.
DUBINA, Chief Judge:

                                               I.

      Vida Baptista appeals the district court’s dismissal of her two-count class

action complaint against JP Morgan Chase Bank (“Chase”) for failure to state a

claim upon which relief can be granted.

      On or about October 1, 2009, one of Chase’s account holders wrote Baptista

a check for $262.48. Baptista was not an account holder at Chase. Baptista

brought the check in person to Chase in order to cash it. Chase charged a $6.00 fee

to provide cash immediately.

      In response, Baptista filed this class action on January 28, 2010, against

Chase seeking damages on two counts. First, she alleged that Chase’s charging of

a check-cashing service fee violated Fla. Stat. § 655.85. Second, she brought a

claim for unjust enrichment.

      Chase filed its Motion to Dismiss on March 1, 2010, moving to dismiss on

three primary grounds. First, Chase alleged that Fla. Stat. § 655.85 did not apply to

Baptista because that statute only regulates fees charged between banks.1 Second,

Chase alleged that both of Baptista’s claims are preempted by the National Bank

Act, 12 U.S.C. § 21 et seq. (“NBA”). Finally, Chase alleged that Baptista’s unjust

      1
          Commonly known as “exchange fees.”

                                               2
enrichment claim failed as a matter of law because she did not, and could not,

allege essential elements of the cause of action.

      On June 4, 2010, the district court granted Chase’s motion, dismissing both

of Baptista’s claims as preempted by the NBA, and Baptista appealed. Baptista

alleges that reversal of the district court is proper because: (1) a clear reading of

Fla. Stat. § 655.85 shows that it is applicable to a fee charged on a personal check

presented by the payee in person; (2) Fla. Stat. § 655.85 is not preempted by the

NBA; and (3) Baptista’s unjust enrichment claim under Florida law is not

preempted by the NBA. After reading the parties’ briefs and having the benefit of

oral argument, we affirm the judgment of dismissal.

                                          II.

      This court reviews a district court’s grant of a motion to dismiss for failure

to state a claim upon which relief can be granted de novo. Hill v. White, 321 F.3d

1334, 1335 (11th Cir. 2003).

                                          III.

      The Florida statute at issue specifically prohibits a bank from “settl[ing] any

check drawn on it otherwise than at par.” Fla. Stat. § 655.85. The district court

concluded that § 655.85 was preempted by the NBA, specifically citing two

provisions. First, it cited 12 U.S.C. § 24(Seventh), which allows banks to “exercise

                                           3
. . . all such incidental powers as shall be necessary to carry on the business of

banking; by discounting and negotiating promissory notes, drafts, bills of

exchange, and other evidences of debt.” Second, it cited a regulation promulgated

by the Office of Comptroller of the Currency (“OCC”), the agency empowered by

the NBA to supervise and regulate federally chartered banks in accordance with

the act, which states that a national bank may “charge its customers non-interest

charges and fees, including deposit account service charges.” 12 C.F.R. §

7.4002(a). The OCC interprets “customer” to include “any person who presents a

check for payment.” Wells Fargo Bank of Tex. N.A. v. James, 321 F.3d 488, 490 &

n.2 (5th Cir. 2003) (citing three interpretive letters sent by the OCC).

      The Supreme Court has identified three types of preemption: express

preemption, field preemption, and conflict preemption. Wis. Pub. Intervenor v.

Mortier, 501 U.S. 597, 604–05, 111 S. Ct. 2476, 2481–82 (1991). Baptista and

Chase both make much ado about which type of preemption is applicable to the

NBA, ignoring the fact that the Dodd–Frank Wall Street Reform and Consumer

Protection Act of 2010 (“Dodd–Frank Act”) amended the NBA’s preemption

section to address this very issue. Section 5136(b)(1)(B) of the Dodd–Frank Act

amended the NBA to state the following:




                                           4
      State consumer financial laws are preempted, only if . . . in accordance
      with the legal standard for preemption in the decision of the Supreme
      Court of the United States in Barnett Bank of Marion County, N. A. v.
      Nelson, Florida Insurance Commissioner, et al., 517 U.S. 25 (1996), the
      State consumer financial law prevents or significantly interferes with the
      exercise by the national bank of its powers . . . .

12 U.S.C. § 25b(1). In Barnett Bank of Marion County, N. A. v. Nelson, the

Supreme Court addressed a Florida statute that prohibited national banks from

offering insurance coverage in small towns. In determining whether there was an

“irreconcilable conflict” between the state statute and the NBA, the Court found

the controlling question to be whether the state statute “forbid[s], or . . . impair[s]

significantly, the exercise of a power that Congress explicitly granted.” 517 U.S.

25, 33, 116 S. Ct. 1103, 1109 (1996). Thus it is clear that under the Dodd-Frank

Act, the proper preemption test asks whether there is a significant conflict between

the state and federal statutes—that is, the test for conflict preemption.

      Few cases have discussed the effect of the NBA and its regulations on so-

called “par value” statutes. In fact, only one of our sister circuits has addressed the

question head on. In Wells Fargo Bank of Texas N.A. v. James, the Fifth Circuit

addressed a par value statute almost identical to the one at issue here. 321 F.3d at

491. This statute prevented all banks operating in Texas from charging fees to

non-account-holding payees cashing checks at those banks. Specifically, the



                                           5
statute stated, “a payor bank shall pay a check drawn on it against an account with

a sufficient balance at par, without regard to whether the payee holds an account at

the bank.” Id. at 490 (citing Tex. Bus. & Com. Code Ann. § 4.112(a)). A group of

federally-chartered national banks challenged the law in a declaratory judgment

action in which the district court found it preempted by the NBA. The state

appealed.

      The Fifth Circuit determined that because Congress did not express a

specific intent to displace state banking laws, conflict preemption applied. Id. at

491. Applying the standard announced in Barnett Bank, it found the par value

statute was in “irreconcilable conflict” with the NBA because the NBA “expressly

authorize[d] an activity which the state scheme disallows.” Id. & n.3 (citing

Barnett Bank, 517 U.S. 25, 116 S. Ct. 1103). In order to reach this result, the Fifth

Circuit had to take three essential steps. First, it determined that the OCC had the

authority to promulgate rules such as, and including, 12 C.F.R. § 7.4002(a).

Second, it determined that the OCC’s interpretation of the word “customer” to

include any person presenting a check for payment warranted deference under

Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905 (1997)—the standard applicable to

an agency’s interpretation of its own regulations. Finally, the Fifth Circuit found

that a bar on a bank’s ability to charge fees to persons presenting checks for

                                          6
payment would clearly and irreconcilably conflict with the OCC’s allowance of

the charging of such fees. Id. at 495.

       We adopt the reasoning of the Fifth Circuit and hold that Fla. Stat. § 655.85

is preempted by the OCC’s regulations promulgated pursuant to the NBA.

Congress clearly intended that the OCC be empowered to regulate banking and

banking-related activities. It is not unreasonable to define “customer” as any

person presenting a check for payment. And finally, there 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, which reduces the bank’s fee options by 50%, is in substantial

conflict with federal authorization to charge such fees.2 Moreover, we conclude



       2
         At oral argument Baptista argued that Williamson v. Mazda Motor Corp. of Am., 562 U.S.
__, 131 S. Ct. 1131 (2011), governs this case. We disagree. That case addressed whether a federal
regulation requiring shoulder belts for all exterior seats but allowing the manufacturer the choice of
installing either lap or shoulder belts for all interior seats would preempt a tort claim arising out of
a manufacturer’s use of a lap belt. The Court held that because “providing manufacturers with this
seatbelt choice [was] not a significant objective of the federal regulation,” the tort suit was not
barred. Id. at __, 131 S. Ct. at 1133. The objective of that regulation was to regulate the safety of
motor vehicles.
         Here the significant objective of 12 C.F.R. § 7.4002 is to allow national banks to charge fees
and to allow banks latitude to decide how to charge them. It states that “the establishment of
non-interest charges and fees, their amounts, and the method of calculating them are business
decisions to be made by each bank, in its discretion, according to sound banking judgment and safe
and sound banking principles.” Id. Because allowing the banks the option of how to charge fees was
a significant objective of the NBA and regulations promulgated thereunder, Williamson is inapposite
to this case.


                                                   7
that because Baptista’s unjust enrichment claim relies on identical facts as her

claim under Fla. Stat. § 655.85, it too is preempted.3

       For the reasons discussed above, we affirm the judgment of dismissal.

       AFFIRMED.




       3
          We would also conclude that Baptista’s unjust enrichment claim fails as a matter of law
because Baptista cannot prove each element of the claim. See Della Ratta v. Della Ratta, 927 So.
2d 1055, 1059 (Fla. Dist. Ct. App. 2006) (“To state a claim for unjust enrichment, a plaintiff must
plead the following elements: 1) the plaintiff has conferred a benefit on the defendant; 2) the
defendant has knowledge of the benefit; 3) the defendant has accepted or retained the benefit
conferred; and 4) the circumstances are such that it would be inequitable for the defendant to retain
the benefit without paying fair value for it.”).
         “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, Baptista requested to have the check cashed immediately upon
presentment to Chase, and in return, Chase requested a $6.00 fee. Baptista agreed to the fee. If
Baptista had chosen to deposit the check in her own account and wait for processing, no fee would
have been levied. The fee was only levied because Chase conferred an additional benefit on Baptista,
that is, immediate payment of the check. Because Baptista cannot show that Chase failed to give
consideration for her $6.00, her claim for unjust enrichment fails as a matter of law.


                                                 8
