On March 9, PNC Financial Services Group, Inc. moved to dismiss a class action complaint filed by Damian McCoy in the Western District of Pennsylvania.  McCoy sued PNC after his conditional employment offer was revoked when a 2011 arrest was discovered during his criminal background check.  Allegedly, the report indicated that the felony and misdemeanor charges against McCoy had been withdrawn.  McCoy claims that the revocation of his employment offer violates Pennsylvania’s Criminal History Record Information Act (“CHRIA”).  The state law prohibits employers from considering criminal history record information that does not rise to the level of conviction.

PNC moved to dismiss the case, arguing that federal banking law, specifically the Federal Deposit Insurance Act (“FDIA”), preempts the state statute.  PNC argued that federal law imposes different and conflicting requirements on federally-insured banks like PNC and that “invoking CHRIA to hold PNC liable for considering criminal record information that does not amount to a conviction would frustrate the FDIA’s objective – to ensure that a federally-insured bank does not employ an individual who has entered into a pretrial diversion program for prosecutions involving dishonesty or a breach of trust or money laundering.”  PNC also argued it was impossible for a federally-insured bank to comply with both CHRIA and the FDIA.  As a result of the conflict between the state and federal laws, PNC argued that federal preemption under the Supremacy Clause of the Constitution mandates that the state law is invalidated under the principle of “conflict preemption.”

The case is McCoy v. PNC Financial Services Group, Inc., Case No. 2:18-cv-00299-CRE (W.D. Pa.).  Troutman Sanders LLP will continue to monitor developments in this case with respect to the preemption arguments advanced by PNC.