Tenth Circuit Grants Rehearing En Banc In Colorado Opt-Out Litigation

Yesterday, the Tenth Circuit entered an Order which granted the Petition for Rehearing En Banc filed by the plaintiff bank trade associations in the Colorado opt-out litigation, National Ass’n of Industrial Bankers v. Weiser. As we have previously reported, on November 10, 2025, the Tenth Circuit issued a 2-1 decision which addressed Colorado’s 2023 opt-out from Section 27 of the Federal Deposit Insurance Act (FDIA), pursuant to the opt-out right conferred by Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA). In that important decision of first impression, the majority concluded that a loan is “made in” an opt-out state if either the lender or the borrower is located there. As a result, Colorado’s opt-out from Section 27 would strip out-of-state state banks of their usual ability under Section 27 to “export” their home-state interest rates to Colorado borrowers, and instead they would have to comply with Colorado usury ceilings.

A Petition for Rehearing En Banc was filed by the plaintiffs, which are several bank trade associations, and it was supported by a number of amici, including the FDIC; OCC; American Bankers Association; Bank Policy Institute and 52 state bankers associations (all represented by Ballard Spahr); and 20 state Attorneys General. Colorado filed an opposition to the rehearing petition.

A majority of the non-recused active judges on the Tenth Circuit voted to grant rehearing en banc. The effect of this order is to vacate the panel decision and to continue to leave in place the District Court’s preliminary injunction against enforcement of the Colorado opt-out statute. The Tenth Circuit’s order specifically directed the parties to address the following issues in their forthcoming briefs:

1. Does the phrase “loans made in such State” in Section 525 of the Depository Institutions Deregulation and Monetary Control Act of 1980 (DIDMCA) refer to “an executed loan” and encompass “loans in which either the lender or the borrower is located in the opt-out state”? Nat’l Ass’n of Indus. Bankers v. Weiser, 159 F.4th 694, 714 (10th Cir. 2025).
2. How, if at all, should the reference in Section 521 of DIDMCA to “the State … where the bank is located” inform the meaning of “loans made in such State” in Section 525?
3. How, if at all, is DIDMCA’s enactment history instructive to interpreting the phrase “loans made in such State”?
4. How, if at all, is the regulatory guidance instructive to interpreting the phrase “loans made in such State”?
5. Is the phrase “loans made in such State” ambiguous?
6. Does a presumption against preemption apply in this case?

The plaintiff trade groups’ brief is due in 30 days; Colorado’s brief is due 30 days later; and the trade groups’ reply brief is due 14 days thereafter.

The Court’s Order concludes by stating that “Amicus participation is encouraged.”

A grant of a petition for rehearing en banc is exceptionally difficult to obtain, particularly in the Tenth Circuit.

As we reported previously, the Oregon legislature recently passed legislation (House Bill 4116) that opts-out of DIDMCA. The bill is awaiting the Governor’s signature. The Tenth Circuit’s grant of rehearing en banc today certainly changes the legal landscape considerably for both the proposed Oregon legislation and any other potential state opt-out.

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