State regulators' suit against the Office of the Comptroller of the Currency is a high-stakes gamble, one that could establish an important limit on the agency or backfire against local supervisors and solidify its power.

The Conference of State Bank Supervisors has been hinting for months that it might challenge the OCC's Fintech charter, arguing repeatedly that the agency lacked the statutory authority to act. But courts have generally deferred to an agency's interpretation of relevant law, making the outcome of the lawsuit filed Wednesday far from certain.

"The OCC has not finalized their process and they have not chartered anybody," said Scott Pearson, a partner at Ballard Spahr who advises both Fintechs and banks. "I just don't see how this is ripe at this point."

The preemptive move could make it harder for the CSBS to convince a judge that it has standing in the case. If the OCC has not taken any concrete actions yet, it is harder to argue that state regulators have been harmed.

"The question is whether the Conference of State Bank Supervisors really has a dog in the fight," Pearson said. "There hasn’t been any injury at this point."

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