The Limited, Inc. - Page 23




                                       - 23 -                                         
          WFNNB is a bank.  Congress did not provide an exception for                 
          deposits with “banks”; it provided an exception for “deposits               
          with persons carrying on the banking business”.  Congress did not           
          define the term “banking business”, and, although petitioner                
          presented expert testimony with respect to banks and banking,               
          none of petitioner’s experts claim that the term “banking                   
          business” is a term of art or has a well-defined meaning.                   
          Indeed, petitioner’s expert, Robert L. Clarke, Comptroller of the           
          Currency from December 1985 through February 1992, testified:               
          “During the time I served as Comptroller of the Currency, the               
          issues of what it means to be a ‘bank’ and exactly what                     
          constitutes the ‘banking business’ regularly confronted the                 
          Office of the Comptroller of the Currency ('OCC'), Congress and             
          the court system, including the Supreme Court.”  We conclude that           
          the term “deposits with persons carrying on the banking business”           
          is ambiguous.8  Cf. NationsBank, N.A. v. Variable Annuity Life              
          Ins. Co., 513 U.S. 251, 258, n.2 (1995) (determining that                   
          Comptroller of the Currency may determine what is an “incidental            
          powe[r] * * * necessary to carry on the business of banking” for            
          purposes of 12 U.S.C. sec. 24:  “We expressly hold the ‘business            
          of banking’ is not limited to the enumerated powers in � 24                 

          8    The parties dispute not only the meaning of the term                   
          “deposits with persons carrying on the banking business” but also           
          the meanings of the subordinate terms “deposits” and “banking               
          business”.  We conclude that the subordinate term “banking                  
          business” is ambiguous.  That is sufficient for us to conclude              
          that the superior term, “deposits with persons carrying on the              
          banking business”, is ambiguous.                                            



Page:  Previous  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  Next

Last modified: May 25, 2011