Full opinion text
Opinion and Order Bruce Howe Hendricks, United States District Judge This matter is before the Court on the defendant’s motion to dismiss counts I-VI and VIII of the plaintiffs’ consolidated amended class action complaint (“CAC”) for failure to state a claim upon which relief can be granted. (ECF No. 53.) For the reasons set forth in this order, the defendant’s motion is granted in part and denied in part. PROCEDURAL BACKGROUND In this litigation, the plaintiffs challenge the manner in which the defendant, TD Bank, N.A., and some smaller state banks that it has acquired (collectively “TD Bank” or “the Bank”), assessed overdraft fees, posted debit transactions, and assessed “sustained” overdraft fees. Eight putative class actions, King, et al. v. TD Bank, N.A., D.S.C. C.A. No. 6:13-cv-02264; Padilla, et al. v. TD Bank, N.A., E.D. Pa. C.A. No. 2:14-cv-01276; Hurel v. TD Bank, N.A., et al., D.N.J. C.A. No. 1:14-cv-07621; Koshgarian v. TD Bank, N.A., et al., S.D.N.Y. C.A. No.; Goodall v. Toronto-Dominion Bank, et al., M.D. Fla. C.A. No. 8:15-cv-00023; Klein, et al. v. TD Bank, N.A., D.N.J. C.A. No. 1:15-cv-00179; Ucciferri v. TD Bank, N.A., D.N.J. C.A. No. 1:15-cv-00424; and Austin v. TD Bank, N.A., D. Conn. C.A. No. 3:15-cv-00088, were filed against TD Bank in federal court. On April 2, 2015, the Judicial Panel on Multidistrict Litigation (“MDL”) centralized these actions and assigned them to this Court. On April 15, 2015, the MDL Panel transferred an additional putative class action, Robinson v. TD Bank, N.A., S.D. Fla. C.A. No. 15-cv-60469, to this Court for inclusion in this litigation, MDL No. 2613. On May 20, 2015, the Court appointed co-lead counsel, the plaintiffs’ executive committee, and liaison counsel. On May 22, 2015, the Court consolidated all nine actions for pretrial purposes and directed the plaintiffs to file an amended or consolidated complaint within • thirty days of the date of that order. The plaintiffs’ CAC was filed on June 19, 2015. (ECF No. 37.) TD Bank filed a motion to dismiss the plaintiffs’ CAC for failure to state a claim on August 3, 2015. (ECF No. 53.) The plaintiffs filed a response in opposition to the motion (ECF No. 59) on September 2, 2015, and TD Bank filed a reply on September 23, 2015 (ECF No. 60). A hearing was held on the motion to dismiss on October 14, 2015, and the Court took the matter under advisement. TD Bank' filed a notice of supplemental authority in support of the motion to dismiss on October 22, 2015. (ECF No. 63.) The plaintiffs filed a response to the notice of supplemental authority on October 23, 2015. (ECF No. 64.) On. November 30, 2015, the plaintiffs filed a notice of supplemental authority. (ECF No. 66.) TD Bank filed an objection to, the, plaintiffs’ notice of supplemental authority on December 4, 2015. (ECF No. 67.) FACTUAL BACKGROUND Unless otherwise indicated, the following facts are drawn from the CAC and construed in the light most favorable to the plaintiffs. I. TD Bank’s Overdraft Program The plaintiffs’ claims arise from TD Bank’s assessment and collection of allegedly improper and excessive overdraft fees. The claims can be grouped into five categories of alleged behavior by the Bank: (1) assessment of overdraft fees when there are sufficient actual funds in the account; (2) assessment of overdraft fees as a result-of reordering debit transactions from high to low; (3) assessment of overdraft fees on transactions intentionally authorized into overdraft without notice.to customers; (4) assessment of overdraft fees on ATM and one-time debit transactions in violation of Regulation E, 12 C.F.R. § 205.17, under the Electronic Funds Transfer Act (“EFTA”); and (5) assessment of “sustained” overdraft fees on checking and money market account customers in violation of the National Bank Act’s prohibition on the collection of usurious interest (12 U.S.C. §§ 85-86). TD Bank provides debit cards to its checking account customers. Customers can use their debit cards to access their checking account funds by making purchases or withdrawing money from ATM machines. The Bank is instantaneously notified of debit card transactions and has the option to accept or decline the transaction- at the point of sale. According to the plaintiffs, TD Bank can immediately determine whether customers have sufficient funds in their accounts to cover the transactions. The Bank’s contracts with its customers provide that the Bank can assess overdraft fees' on their accounts when it has advanced funds because there was insufficient money in the account to cover the transaction. If a customer does not have sufficient funds in his or her account to pay for a transaction, the transaction is considered an “overdraft.” Instead of declining such transactions or informing customers that they will result in overdraft fees, TD Bank will, in its discretion, honor transactions that result in overdraft. However, if TD Bank honors an overdraft, it charges the customer a $35 fee for each overdraft, up' to five charges per day. At the time of the transaction, TD Bank does'not alert its customers that it will cause an overdraft. The plaintiffs aver that TD Bank paid, rather than returned or declined, nearly all debit card charges resulting in overdraft, even though the accounts in question purportedly lacked' sufficient funds to cover the relevant transactions. The Bank-charged customers the same $35 fee for each overdraft regardless of the amount of the transaction. . TD Bank’s automated overdraft system is allegedly designed to maximize overdraft fee revenue without regard to customers’ particular financial circumstances. The plaintiffs assert that when marketing its overdraft protection program, TD Bank represents that it takes the personal circumstances of each customer into account before exercising its discretion in deciding whether to- authorize an overdraft transaction. This allegedly creates a false impression in the mind of the consumer that the Bank assesses personal information before making individualized decisions on a case-by-case, transaction-by-transaction basis. In reality, claim the plaintiffs, the Bank simply honors nearly every transaction that will create an overdraft, thus increasing the number of fees it can charge. Next, the plaintiffs allege that TD Bank assessed overdraft fees on customers’ accounts even when there was still enough money in the account to cover the transaction. The Bank purportedly did not notify plaintiffs that it was possible to incur overdraft fees on transactions even when there were sufficient funds in the checking account to cover the transaction at the time it was executed. At the time such transactions were executed, TD Bank also did not notify customers that their checking accounts were or would be overdrawn, or that they would be charged an overdraft fee as a result of the transaction. The plaintiffs assert that TD Bank deemed accounts to be overdrawn when sufficient funds still remained in the account by using a calculation called “available balance.” Instead of using the actual balance of money in the account to determine when it was overdrawn and- when a fee should be triggered, TD Bank used a reduced balance calculated by subtracting “pending” debit transactions, which may not settle or be paid for several days, and may not settle for the authorized amount or at all. This reduced balance is the “available balance.” TD Bank treated transactions that caused the “available balance” to fall below zero, or to remain below zero, as an “overdraft.” TD Bank then assessed the associated overdraft fees without regard to the actual balance, which was still positive. By so doing, claim the plaintiffs, TD ■ Bank increased the number of fees it charged to its customers because fees that would not otherwise have been assessed if the actúa] balance was considered were triggered by the use of a negative available balance for accounting purposes. The plaintiffs further allege that TD Bank manipulated and reordered transactions on customers’ deposit accounts from highest to lowest in order to increase the overdraft fees it assessed its customers. This practice is commonly called “high-to-low” posting; A transaction is “posted” when TD Bank either debits an expenditure from the customer’s account or credits a deposit to a customer’s account. (Ex. A, ECF No. 37-1 at 8-9.) TD Bank does not debit funds from a customer’s account at the moment a transaction is made. Instead, TD Bank purportedly batches together several days’ worth of transactions and orders them from the highest to the lowest dollar amount before posting them to the customer’s account. The plaintiffs claim that the manipulation of posting order from chronological to high-to-low caused them to incur more overdraft fees than they otherwise might, because the balance in the account was depleted more rapidly when the highest expenditures were applied first. Moreover, they assert that customers were unable to easily avoid these overdraft fees even if they closely tracked their income and spending because TD Bank’s monthly account statements and online account tools obfuscate the connection between a particular transaction and the overdraft fee that transaction has triggered. (See CAC, ECF No. 37 at ¶ 119.) TD Bank has already been sued regarding its high-to-low posting overdraft practices. Several cases filed against TD Bank were settled as part of a multidistrict litigation proceeding known as In re Checking Account Overdraft Litigation in the United States District Court for the Southern District of Florida (“MDL No. 2036). (See Order of Final Approval of Settlement, Authorizing Service Awards, and Granting Application for Attorneys’ Fees, Ex. C., ECF No. 37-3.) TD Bank settled the case for $62,000,000, an amount paid to customers whose accounts had been subject to overdraft fees as a result of the high-to-low posting practice from December 1, 2003 to August 15, 2010. (Id. at 8-9.) The plaintiffs allege that many of the overdraft fee practices complained of in the instant proceeding have continued unchanged despite the class action settlement in that prior case. TD Bank was required to comply with Regulation E, 12 C.F.R. § 205.17, relating to obtaining affirmative opt-ins before it could assess its customers overdraft fees on ATM and non-recurring debit card transactions. According to the plaintiffs, TD Bank assessed certain customers overdraft fees for these types of transactions without, obtaining the requisite affirmative opt-ins. TD Bank charged its customers an extended overdraft balance charge, or “sustained overdraft fee,” in the amount of $20 when a customer failed to bring an overdrawn account back into a positive balance within ten business days. This sustained overdraft fee is a secondary fee that is applied to overdrawn accounts after the initial overdraft fees have been charged. The plaintiffs assert that the sustained overdraft fee is premised' on a customer’s account remaining in á negative balance for a specified period of time. They claim that the sustained overdraft fee is therefore an interest'charge, ánd that the rate of interest vastly exceeds permissible limits as set forth in the National' Bank Act, 12 U.S.C. §§ 85-86. • Each of the named plaintiffs opened checking accounts with TD Bank, and are, or were, customers of TD Bank. Shawn Balensiefen, Michael Goheen, Keith Irwin, Jan Kasmir, James- King, Jr., Joanne McClain, and Michael McClain were also customers of Carolina First Bank or Mercantile Bank. TD Bank acquired Carolina First Bank and Mercantile Bank on September 30, 2010, and assumed the liabilities of those entities. -The holding company for Carolina First Bank and Mercantile Bank, the South Financial Group, Inc., merged into TD Bank’s parent holding company, TD Bank US Holding Company, on that same date. Carolina First Bank and Mercantile Bank had branches in Florida, North Carolina, and South Carolina until rebranding occurred in June 2011. The plaintiffs assert that TD Bank has confirmed that the contracts and practices of South Financial were substantively identical for Carolina First Bank and Mercantile Bank customers during the relevant time period. II. The Account Holder Agreements The Personal Deposit Account Agreement (“PDAA”) sets forth terms and conditions governing. TD Bank’s relationship with, account holders. The PDAA contains an extensive section that explains the mechanics of how items are processed and posted to customers’ accounts,. entitled, “PROCESSING ORDER FOR PAYMENT OF CHECKS AND OTHER ITEMS.”.(Ex. A, ECF No. 37-1 at 8-9.) The PDAA states, “Overdraft fees may be assessed on items presented for payment that bring your Account into a negative balance, as well as any subsequent transactions presented for payment while the Account has a negative balance.” (Id. at 9.) The PDAA defines an overdraft as an “advance of funds greater than the amount that has become available in accordance with the Bank’s Funds Availability Policy, made by us to you, at our sole discretion.” (Id. at 10.) The PDAA indicates that overdrafts may include “advances to cover a check, in-person withdrawal, ATM withdrawal, or a withdrawal by other electronic means from your Account,” and warns, “[w]e may demand immediate repayment of any overdraft and charge you an overdraft fee.” (Id.) The PDAA states that “overdraft fees are not charged on ‘pending’ authorizations, although they reduce your available balance.” (Id. at 9.) The PDAA further states, ‘You may overdraw your account by up to $5 per day without being charged a fee. If your negative available balance exceeds $5 at the end of the day, we will charge you for each transaction that overdraws your account .... ” (Id. at 10.) The plaintiffs allege that Carolina First Bank and- Mercantile Bank followed overdraft policies nearly identical to those of TD Bank, including the use of “available balance” instead of actual balance to assess overdraft fees when there was sufficient money in the customer’s account to cover the transaction in question. One version of the Carolina First Bank- customer agreement entitled, “Terms and Conditions of Your Account” (“Carolina First Account Agreement”), governed various aspects of the state • banks’ relationship with account holders. The Carolina First Account Agreement states, “This document, along with any other documents we give you pertaining to your account(s), is a contract that establishes rules which control your account(s) with us.” (Ex. D, ECF No. 37-4 at 2.) The Carolina First Account Agreement is not as specific as the PDAA regarding item posting and overdraft procedures'. However, the Carolina First Account Agreement includes the following language related to overdrafts and overdraft fees: The fact that we may honor withdrawal requests that overdraw the available account balance does not obligate us to do so later. You agree that' we may charge fees for overdrafts and use subsequent deposits, including direct deposits of social security or other government benefits, to cover such overdrafts and overdraft fees. (Id. (under “WITHDRAWALS”)) In a section entitled “CHECK PROCESSING,” the Carolina First Account Agreement states: . ' We may determine the amount of available funds in your account for the purpose of deciding whether to return an item for insufficient funds at any time between the time we receive the item and when we return the item or send a notice in- lieu of return. We need only make one determination, but if we choose to make a subsequent determination, the account balance at the subsequent time .will determine whether there are insufficient available funds. (Id. at 3.) STANDARD OF REVIEW A plaintiffs complaint should set forth “a short and plain statement ... showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955)). In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court “accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff .... ” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.2009). A court should grant a Rule 12(b)(6) motion if, “after accepting all well-pleaded allegations in the plaintiffs complaint as true and drawing all reasonable factual inferences from- those facts in the plaintiffs favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999). As previously noted, to survive a Rule 12(b)(6) motion to dismiss a complaint must state “a plausible claim for relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (emphasis added). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that .are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the. line between possibility and plausibility of entitlement to relief.’ ” Id. at. 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Stated differently, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’” Id. at 679, 129 S.Ct. 1937 (quoting Fed. R. Civ. P. 8(a)(2)). Still, Rule 12(b)(6) “does not countenance ... dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Colon Health Centers of Am., LLC v. Hazel, 733 F.3d 535, 545 (4th Cir.2013) (quoting Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). “A plausible but inconclusive inference from pleaded facts will survive a motion to dismiss____” Sepulveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st Cir.2010). DISCUSSION I. Federal Preemption The first question to be answered by the Court is whether the National Bank Act of 1864 (“NBA”), 12 U.S.C. § 1 et seq., and its attendant regulations preempt -some or all of the plaintiffs’ state law claims. The CAC is pled in a manner that imprecisely consolidates a plethora of factual allegations into each theory of liability. For example, count *11 states,. “Plaintiffs repeat and reallege each and every allegation contained above as if fully set forth herein” (referencing the prior 53 pages of the CAC), then goes on to advance broad notions of “preserving the spirit — not merely the letter — of the bargain” and abuse of bargaining power. (CAC, ECF No. 37 at 59-60.) Count VI similarly incorporates all foregoing allegations in the CAC and states, “Certain of Defendant’s policies and/or practices described in this Complaint constitute unfair, unconscionable or deceptive trade or business practices. Defendant engages in such conduct as a general business practice, uniformly' and as a matter of policy assessing and collecting overdraft fees where it is not legally permitted to do so.” (CAC, ECF No. 37 at 65.) Yet count VI is purportedly asserted on behalf of the named plaintiffs and the “EFTA Class” only. (Id.-, -see also Pis.’ Resp. in Opp. to Mot. to Dismiss, ECF No. 59 at 27 (“[M]uch of the basis [for count VI] is TD’s violation of EFTA, a claim which TD has not argued is- preempti-ble.”).) Meanwhile, ¡counts IV and V are asserted on behalf of the named plaintiffs and “All Classes.” (CAC, ECF No. 37 at 63-64.) From ;the facts as asserted, the Court has distilled three sources of putative liability at issue in counts II-VI to which the preemption analysis applies: 1. high-to-low posting order, 2. intentional honoring of debit transactions into overdraft without notice to customers, and 3. assessment of overdraft fees despite sufficient funds. Indeed, the plaintiffs have defined two of their five putative classes by way of these categories' (“TD High-to-Low Class”' and “TD Sufficient Funds Class”). (CAC, ECF No. 37 at 52-53.) The theory regarding intentional authorization of transactions into overdraft is not included in any of the putative class definitions, but is specifically incorporated into count I. (CAC, ECF No. 37 at 59.) There are other alleged sources of liability (EFTA and usury theories) raised within counts VII and VIII specifically. However, the Court will address the preemption issue with respect to the foregoing three categories as they constitute the gravamen of the plaintiffs’ claims in counts II-VI. To the extent the EFTA and-usury theories are incorporated into counts II-VI, preemption does not apply. The Court finds that counts II-VI of the CAC are preempted as they relate to high-to-low posting order and intentionally honoring debit transactions into overdraft, but not preempted as they relate to assessment of overdraft fees when there are sufficient funds in the account. Under the Supremacy Clause, Article VI, Clause II of the United States Constitution, state law that conflicts'with federal law is of no effect and thé applicable federal law controls. Federal law miay supersede state law in three different ways: (1) when Congress expressly preempts state law by so stating in express terms, (2) where a scheme of federal regulation is sufficiently comprehensive to invoke a reasonable inference that Congress left no room- within the field for supplementary state regulation, and (3) where federal and state law actually conflict. See California Federal Sav. and Loan Ass’n v. Guerra, 479 U.S. 272, 280-81, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987). The third category, so called “conflict” preemption, may arise either because “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or because the state law “stands as an obstacle to the accomplishment and execution of the full, purposes and objectives' of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). In the context of the national banking industry, the question of conflict preemption is more refined. “Federally chartered banks, are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or the general purposes of the NBA.” Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11, 127 S.Ct. 1559, 167 L.Ed.2d 389 (2007) (citing Davis v. Elmira Savings Bank, 161 U.S. 275, 290, 16 S.Ct. 502, 40 L.Ed. 700 (1896)). However, “when state prescriptions significantly impair the exercise of authority, enumerated or incidental under- the NBA, the [s]tate’s regulations must give way.” Id. at 12, 127 S.Ct. 1559 (citing Barnett Bank of Marion Cty., N.A. v. Nelson, 517 U.S. 25, 32-34, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996) (federal law permitting national banks to sell insurance in small towns preempted state statute prohibiting banks from selling most types of insurance); Franklin Nat. Bank of Franklin Square v. New York, 347 U.S. 373, 375-79, 74 S.Ct. 550, 98 L.Ed. 767 (1954) (local restrictions preempted because they burdened exercise of national banks’ incidental power to advertise)). Thus, in defining the preemptive scope of statutes and regulations that grant power to national banks, the United States Supreme Court takes the view that “Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress explicitly grante’d.” Barnett Bank, 517 U.S. at 33, 116 S.Ct. 1103 (emphasis added). The history of national bank legislation “is one of interprét-ing grants of both enumerated and incidental ‘powers’ to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law.” Id. at 32, 116 S.Ct. 1103. Nevertheless, ,“[s]tate laws on the [ ] subjects [of . contracts and torts] are not inconsistent with the deposit-taking powers of national banks to' the extent consistent with the decision of the Supreme Court in [Barnett Bank].” 12 C.F.R. § 7.4007(c). The resultant question operative wherever state law conflicts with federal law regarding a national bank’s authorized powers,* is whether that state law “significantly interferes” with the bank’s exercise of those-powers. See Barnett Bank, 517 U.S. at 33, 116 S.Ct. 1103. For the sake of clarity, the Court specifically considered whether the fact that the preemption question in the instant case includes state common' law causes of action, rather than state statutes or regulations only, should have any bearing on the preemption outcome. The Court finds no distinction between state common law and state statutory or regulatory law with respect to their proclivity to-impair a bank from carrying out the business of banking, or lack thereof. As such, the Court considers the applicable case law dealing with preemption in the context of state statutes (e.g. Gutierrez v. Wells Fargo Bank, N.A., 704 F.3d 712 (9th Cir.2012)) to be of the same persuasive and precedential value as if it dealt with common law claims specifically. Where federal preemption applies, it bars both a direct assertion of state law by a state legislature, see Barnett Bank, 517 U.S. at 31, 116 S.Ct. 1103, and the assertion of state law causes of action by private plaintiffs based on laws of general applicability, see Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 738 & n. 1, 747, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). See also Wilmington Shipping Co. v. New England Life Ins. Co., 496 F.3d 326, 341 (4th Cir. 2007) (reasoning that parties may not avoid the preemptive reach of federal law by recasting otherwise preempted claims as state law contract and tort claims). The operative question of “significant interference” is the same in both contexts. See Hawthorne v. Umpqua Bank, 2013 WL 5781608, at *11-13 (N.D.Cal. Oct. 25, 2013) (state statutory unfair trade practices, implied covenant of good faith, and unjust enrichment claims premised on bank’s high-to-low posting order preempted); Mann v. TD Bank, N.A., 2009 WL 3818128, at *4 (D.N.J. Nov. 12, 2009) (breach of contract, implied covenant of .good faith, unconscionability, and state statutory unfair trade practices claims premised on bank’s gift card fees preempted). A. Counts II-VI Challenge Actions by TD Bank That Constitute Federally Conferred Powers The NBA authorizes national banks to receive deposits and perform “all such incidental powers as shall be necessary to carry on the business of banking.” 12.U.S.C. § 24. The Office of the Comptroller of the Currency (“OCC”) possesses regulatory oversight -of national banks’ exercise of their federally authorized powers, and Congress has delegated to the OCC authority to determine the-scope of national banks’ incidental powers. See 12 U.S.C. § 93a; 12 C.F.R. § 7.4000. The OCC has promulgated regulations recognizing that “national bank[s] may receive deposits and engage in any activity incidental to receiving deposits ... subject to ... limitations prescribed by the [OCC] and any other applicable Federal law.” 12 C.F.R. § 7.4007(a). The power to receive deposits includes a national bank’s authority to “charge its customers non-interest charges and fees, including deposit account service charges.” 12 C.F.R. § 7.4002(a). OCC regulations further provide, “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.” 12 C.F.R. § 7.4002(b) (emphasis added). National banks’ powers to receive deposits and to establish non-interest charges and fees include the power to decide the order in which transactions will be posted, to honor overdrafts, and to assess overdraft fees. OCC Interp. Ltr. No. 1082, 2007 WL 5393636 at *3 (May 17, 2007); OCC Interp. Ltr. No. 997, 2002 WL 32872368, at *2 (Apr. 15, 2002); OCC In-terp. Ltr. No. 916, 2001 WL 1285359, at *2 (May 22, 2001). When considering the question of transaction posting order in the context of checks, the OCC stated “[á] bank’s authorization to establish fees pursuant to 12 C.F.R. § 7.4002(a) necessarily includes the authorization to decide how they are computed,” and “posting order is one component that affects the Bank’s NSF fee-setting comjputation.” OCC In-terp. Ltr. No. 916, 2001 WL 1285359, at *2 (May 22, 2001). When considering the question of honoring items for which there are insufficient funds in depositors’ accounts and recovering overdraft fees for doing the same, the OCC concluded that national banks are “authorized under 12 U.S.C. § 24(Seventh) and 12 C.F.R. § 7.4007(a), to honor overdrafts and recover overdraft amounts from depositors’ accounts,” and “authorized by Section 24(Seventh) and 12 C.F.R. § 7.4002 to charge and recover fees for processing overdrafts.” OCC Interp. Ltr. No. 1082, 2007 WL 5393636, at *4 (May 17, 2Ó07). The challenges raised by the plaintiffs in counts II-VI of the CAC directly implicate TD Bank’s practices with regard to the order of posting debit transactions, honoring transactions that will drive depositors’ accounts into overdraft, and charging fees in the event of such overdraft. By way of their claims sounding in the implied covenant of good faith and fair dealing, unconscionability, conversion, unjust enrichment, and.alleged violation of various state statutes prohibiting unfair and deceptive trade practices, the plaintiffs have mounted diverse attacks on the same corpus of activities by TD Bank. As such, counts II-VI all relate to TD Bank’s exercise of federally-conferred incidental powers. B. The Common Law and Statutory Claims in Counts II-VI Significantly Interfere With TD Bank’s Incidental Powers as They Relate to High-to Low Posting and Intentionally Honoring Transactions into Overdraft The question of whether state law, be it in the form of common law causes of action or statutory claims, significantly interferes with a national bank’s exercise of its incidental powers necessarily turns on the degree to which that state law constrains the bank’s ability to carry on the business of banking. Where the state and federal law are not in irreconcilable conflict, and the degree of interference imposed by state law is merely incidental, preemption does not apply. Where, however, the degree-of interference is severe, the state law, in whatever form, must yield. See Watters, 550 U.S. at 12, 127 S.Ct. 1559. The plaintiffs argue that TD Bank bears a heavy burden of proof in order to establish preemption and that there is a presumption against Congressional preemption of state law. (See Pls.’ Resp. in Opp. to Mot. to Dismiss, ECF No. 59 at 22-23 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (Medical Device Act preemption),) However, “[t]he doctrine of federal preemption, which regulates the interplay between federal and state laws when they conflict or appear to conflict, tilts in favor of the federa) government in the arena of national banking.” Decohen v. Capital One, N.A., 703 F.3d 216, 222 (4th Cir.2012). Moreover, Fourth Circuit Court of Appeals’ precedent is clear “that the presumption against preemption, which governs fields traditionally regulated by the states, does not apply to the NBA.” Id. at 222-23 (emphasis added) (citing Nat’l. City Bank of Ind. v. Turnbaugh, 463 F.3d 325, 330-31 (4th Cir.2006) (holding the presumption against preemption does not apply to state regulation of federally chartered banks)). The only federal appellate court to have addressed NBA preemption in the context of overdraft fees is Gutierrez v. Wells Fargo Bank, N.A., 704 F.3d 712 (9th Cir.2012). The question considered by the Ninth Circuit Court of Appeals’ was “the extent to which overdraft fees imposed by a national bank are subject to state regulation.” Id. at 715-16. In Gutierrez a group of consumers sued Wells Fargo Bank under California’s Unfair Competition Law (“UCL”) for engaging in unfair business practices by imposing overdraft fees based on high-to-lów posting order of deposit-account transactions, -and for engaging in fraudulent business practices by' misleading clients regarding the bank’s posting order procedures. Id. at 716. The ease went to trial, and the district court - found that Wells Fargo’s high-to-low posting policy violated the UCL because it was both unfair, in that the bánk’s motive was to maximize the number of overdrafts and associated fees, and fraudulent, in that the bank had affirmatively reinforced the expectation in its customers that transactions were posted in chronological sequence and obfuscated its true high-to-low posting practices. The district court issued a permanent injunction against high-to-low posting and ordered $203 million in restitution. Id. The Ninth Circuit held that federal law preempted' state regulation of debit-account transaction posting order as well as any obligation on the part of the bank to make affirmative disclosures to account holders regarding posting procedures, but that federal law did not preempt state law with respect to fraudulent or misleading misrepresentations about posting practices. Id. The Gutierrez court stated that the determination of whether the NBA and its attendant regulations preempt the applicable state law “turns on whether state law can dictate [the bank’s] choice of posting method,” and held “that it cannot.” Id. at 723 (emphasis added). The Ninth Circuit reasoned that “the deposit and withdrawal of funds ‘are services provided by banks since the days of their creation. Indeed, such activities define the business of banking.’ ” Id. (citing Bank of Am. v. City and Cnty. of San Francisco, 309 F.3d 551, 563 (9th Cir.2002). Moreover, both the business of banking and the power to receive deposits “necessarily include the power to post transactions — i.e., tally deposits and withdrawals — rto determine the balance in customer’s account.” Id. (citing 12 U.S.C, § 24 (Seventh)) (emphasis added). The Ninth Circuit noted, “the OCC has determined • that ‘[t]he 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. at 724 (quoting 12 C.F.R. § 7.4002(b)(2)) (emphasis in original). Furthermore, the court relied on the OCC’s determination that “‘a bank’s authorization to establish fees pursuant to 12 C.F.R. § 7.4002(a) necessarily includes the authorization to decide how they are computed.’ ” Id. (quoting OCC Interp. Ltr. No. 916, 2001 WL 1285359, at *2 (May 22, 2001) (emphasis added). Additionally, “the OCC has determined that a national bank ‘may establish a given order of posting as a pricing decision pursuant to section 24 (seventh) and section 7.4002.’ ” Id. (quoting OCC Interp. Ltr. No. 916). “In sum,” the court concluded, “federal law authorizes national banks to establish a posting order as part and parcel of setting fees, which is a pricing decision.” Id. • The Gutierrez court reversed the district court’s holding that the bank’s choice of posting order was not a pricing decision because, in the district court’s view,' the bank did not follow the four "factor decision making process for safe and sound banking principles required by the OCC in 12 C.F.R. § 7.4002(b). Id. On this point, the Ninth Circuit stated, “[w]hether Wells Fargo’s internal decision making processes regarding posting orders complied with the ‘safe and sound banking principles’ under § 7.4002(b)(2) is an inquiry that falls squarely within the OCC’s supervisory powers,” and “ ‘is within the exclusive purview of the OCC.’ ” Id. at 724-25 (quoting Martinez v. Wells Fargo Home Mortg., Inc., 598 F.3d 549, 556 (9th Cir. 2010)). Finally, the Gutierrez court held that, “a ‘good faith’ limitation applied through- [the UCL] is preempted when applied in a manner that prevents or significantly interferes with a national bank’s federally authorized power to choose a posting order.” Id. at 725 (citing Barnett Bank, 517 U.S. at 37, 116 S.Ct. 1103). “The federal court cannot mandate the order in which [a national bank] posts its transactions .... The district court premised both [the permanent injunction and the restitution award] on only a violation of the ‘unfair’ business practice prong of-the [UCL] tethr ered to the ‘good faith’ requirement-of [the California Commercial Code].” Id. ■ In the cáse sub judice, the Court holds that a “good faith” or “fairness” limitation on TD Bank’s power to choose a debit-account transaction posting order and elect to honor transactions into overdraft, whether applied through the implied covenant of good faith and fair dealing (count II), the doctrine of unconscionability (count III), a common law conversion claim (count IV), the doctrine of unjust enrichment (count V), or state consumer protection statutes (count VI) is preempted' .where such limitation significantly inters feres with the Bank’s federally authorized incidental powers. The 'Court further holds that the state law claims itemized above, specifically as pled in 'Counts II-VI of the CAC, constitute precisely such a limitation on transaction posting order and discretionary authorization of debit transactions, significantly interfere with TD Bank’s exercise of its incidental powers, and are therefore preempted. The Court emphasizes that this preemption analysis is necessarily an “as applied” inquiry into the soundness of the state law claims asserted. In other words, it is- of course true that claims by a consumer against a national bank sounding in state contract and tort law in the abstract are not preempted, so long as their impact on the bank’s exercise of its powers is only incidental. See 12 C.F.R. § 7.4007(c); see also (Watters, 550 U.S. at 11, 127 S.Ct. 1559) (holding that national banks are subject to such laws “to the extent [they] do not conflict with the letter or general purpose of the NBA” (emphasis added)). For example, breach of contract claims not premised on unfairness or bad faith theories but on genuine disputes about the terms of the contract and the parties’ compliance therewith, fall squarely within that category of state laws that are not inconsistent with the deposit-taking powers of national banks because they only incidentally affect the exercise of those deposit-taking powers. See id. For this reason, count I of the CAC, alleging breach of contractual terms is not subject to preemption. For the same reason, counts II-VI as they relate to claims that TD Bank assessed overdraft fees when there were sufficient funds in the account are not preempted, even though premised on unfairness and bad faith theories, because, as will be explained more fully below, the impact of those claims on federally authorized powers is incidental only. However, the degree of impact on TD Bank’s deposit-taking powers imposed by the claims in counts II-VI regarding posting order and honoring transactions into overdraft cannot be described as incidental. Indeed, the plaintiffs’ effort to differentiate their claims in counts II-VI based on the nature of the relief sought from the challenge to high-to-low posting practices at issue in Gutierrez is wholly unpersuasive. The plaintiffs argue that the Ninth Circuit was influenced by the distinctive nature of the relief sought, namely a permanent injunction, and quote Gutierrez when it notes that “as a practical matter, the remedy ordered by the district court boils down to a complete prohibition on the high-to-low sequencing method.” Gutierrez, 704 F.3d at 723 (emphasis added). This argument conveniently avoids the fact that Gutierrez vacated both the injunctive relief and the monetary relief awarded by the district court. Id. at 730 (“The restitution order, which is predicated on liability for Wells Fargo’s choice of posting method and thus also preempted, is vacated as well.”). Realistically, a finding, for example, that TD Bank’s high-to-low posting method violated the implied covenant of good faith and fair dealing would result in a de facto complete prohibition on that practice, regardless of the specific remedy requested in the CAC. Furthermore, the remedies requested by the plaintiffs — including inter alia a declaratory judgment that TD Bank’s overdraft fee policies and practices are unlawful, restitution of all overdraft fees at issue, disgorgement of ill-gotten gains, actual, punitive and exemplary damages (ECF No. 37 at 71) — amount to the symbolic and functional equivalent of an injunction on the challenged practices, as they would literally reverse the assessment of the overdrafts in their entirety and put TD Bank on notice that continuation of the practices was illegal. More to the point, Gutierrez stands for the proposition that where the plaintiffs’ claims touch upon functions central to the business of banking (e.g. honoring debit-account transactions, determining account balance, and pricing decisions) and seek to substitute state law as a measure of the propriety of the bank’s actions within those central functions, the interference posed by the state law is deemed significant and therefore preempted. See id. at 723-75. Per the OCC: The process by which a bank honors overdraft items is typically part of the Bank’s administration of a depositor’s account. Creating and recovering overdrafts have long been recognized as elements of the discretionary deposit account services that banks provide. Where a customer creates debits on his or her account for amounts in excess of the funds available in that account, a bank may elect to honor the overdraft and then recover the overdraft amount as part of its posting of items and clearing of the depositor’s account. These activities are part of or incidental to the business of receiving deposits. OCC Interp. Ltr. No. 1082, 2007 WL 5393636, at *2 (May 17, 2007) (internal citations omitted) (emphasis added). In the same way that the.challenge to the posting practices at issue in Gutierrez was an improper encroachment of state law on federal banking regulations because it sought to dictate a national bank’s choice of posting method, counts ÍI-VI seek to dictate TD Bank’s method of deciding when to honor debits that .will drive deposit accounts into overdraft and method of posting transactions for purposes of balance calculation. This-is why counts II-VI are preempted in these categories, because they amount to de facto state regulation of discretionary functions specifically reserved to the. sound judgment of a national bank. See Gutierrez, 704 F.3d at 723-r25. Though they are couched in slightly different terms, and request slightly different remedies, these categories of the plaintiffs’ claims offend federal preemption principles for. the same essential reasons that the “unfairness” prong of California’s UCL did. Gutierrez stands for the proposition that it is not the purview of private litigants to “dictate [a national bank’s] choice of posting method” or invalidate a national bank’s exercise of its discretionary powers with respect to the non-interest charges and fees it has established. See id. at 723-25. Moreover, the question of whether TD Bank complied with safe and sound banking principles when establishing its policies regarding honoring overdrafts and posting order is an inquiry “within the exclusive purview of the OCC.” Id. at 725. Gutierrez is squarely on point regarding the high-to-low posting challenge raised by the plaintiffs in this proceeding and it counsels inexorably toward preemption of that challenge. “Designation of a posting method falls within the type of overarching federal banking regulatory power that is ‘not normally limited by, but rather ordinarily preempts[s], contrary state law.” Id. at 723 (citing Watters, 550 U.S. at 12, 127 S.Ct. 1559). Though the question of intentionally honoring transactions into overdraft was not specifically raised in Gutierrez, the reasoning of the Ninth Circuit is clear: where state law claims operate to limit a national bank’s exercise of its properly appointed discretion, the state law poses- significant interference with the bank’s powers and is preempted. Id. at 724-25 (citing Baptista v. JPMorgan Chase Bank, N.A., 640 F.3d 1194, 1197-98 (11th Cir. 2011 (holding that a state statute which disallowed' banks from charging non-customers for cashing checks, and an unjust enrichment claim relying on the same facts, were both preempted because they significantly reduced the bank’s discretion in' deciding how to charge fees)); see also Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 283-84 (holding that garnishors’ conversion claim pursuant to state law was preempted because it significantly interfered with the bank’s discretion to exact its own processing fee prior to relinquishing the garnishee’s funds). As such, this Court could not mandate, on fairness' and good faith grounds', the manner in which TD Bank exercises its discretion to honor overdrafts any more than it could “mandate the' order in which [TD Bank] posts its transactions.” Id. Yet,-‘this is exactly what the plaintiffs ask the Court to do in counts II-VI with respect to their theory regarding the wrongfulness of intentionally authorizing transactions into overdraft. To the extént that the plaintiffs challenge TD Bank’s election to honor overdrafts specifically because they believe TD Bank should provide point-of-sale notice and the contemporaneous option to cancel the transaction, this portion of the challenge is also preempted. (See CAC, ECF No. 37 at ¶¶ i, 5, 134, 143-44, 197.) An imposition of the plaintiffs’ preferred method of notice via state law claims unquestionably poses a significant'interference with TD Bank’s discretionary exercise of its incidental powers because it amounts to an unqualified mandate on the way TD Bank can elect to honor overdrafts, namely only after receiving affirmative consumer opt-in for every debit card transaction that will potentially drive an account into the negative. In this way, the question of point-of-sale notice collapses back into the Bank’s discretionary methodology -for honoring overdrafts itself. OCC regulations provide that a “national bank may exercise its deposit-taking powers without regard to state law limitations concerning ... disclosure requirements.” ■ 12 C.F.R. § 7.4007(b)(3) (emphasis added). Thus, on this notice slice of the plaintiffs’ intentional honoring of overdrafts theory, it appears that their claim, is even expressly preempted by section 7.4007(b)(3). See Montgomery v. Bank of America Corp., 515 F.Supp.2d 1106, 1114 (C.D.Cal.2007) (holding plaintiffs’ claim that bank’s contracts were “unconscionable .because they do not accurately disclose when.the [overdraft] fees are assessed” were expressly preempted); see also Gutierrez, 704 F.3d at 726 (reversing the lower court’s imposition of disclosure requirements regarding high-to-low posting, and imposition of liability for the same, because “[t]he requirement to make particular disclosures falls squarely within, the purview of federal banking regulation and is expressly preempted”); Robinson v. Bank of Am., NA, 525 Fed.Appx. 580, 582 (9th Cir.2013) (finding preemption under 12 C.F.R. § 7.4007 because the plaintiff was “attempting to -use [state] law to impose a specific disclosure obligation on.[the bank] whenever it discloses any fee”). Moreover, OCC regulations provide national banks, not consumers, the authority to electively honor overdrafts. See OCC Interp. Ltr. No. 1082, 2007 WL 5393636, at *2 (May 17, 2007); 12 U.S.C. § 24(Seventh); 12 C.F. R. §§ 7.4002, 7.4007(a). This is to say nothing of the havoc that such a notice and right-to-cancel requirement could wreak upon the universe of debit card transactions, precisely because deposit account transactions are often processed in batches after some delay while they are pending presentation for payment, not instantaneously as the plaintiffs’ arguments seem to presuppose. (See CAC, EOF No, 37 at ¶¶ 126-28; Ex. A, EOF No. 37-1 at 8-9.) The Bank cannot be expected to exercise foresight about potential deposits and credits occurring later the same day, which could render moot the scenario of any particular debit card transaction driving the account into overdraft. One can certainly raise questions, as the plaintiffs have, about the objective equities of an information imbalance between the Bank and its customers at the moment the debit, card is being swiped at a coffee shop and the account already reflects a negative available balance, but to limit on fairness and . good faith grounds what the Bank has otherwise been specifically empowered to do is, in the Court’s opinion, a significant interference with its federally conferred power. If point-of-sale notice and right-to-caneel requirements are to be imposed on national banks, they must come by way of Congressional or OCC action limiting or qualifying previously conferred power, not by way of private litigants- claiming that the current, otherwise lawful practices are unfair. Plaintiffs’ argue that overdraft fee-related litigation has generated numerous decisions at the motion to dismiss stage confirming that' state law claims of the type they have raised heré are not preempted. (Pis.’ Resp. in Opp. to Mot. to Dismiss, ECF No. 59 at 24.) But the decisions they cite in support of this assertion either do not address Gutierrez at all, or do not adequately explain their rejection of its reasoning. See King, 26 F.Supp.3d at 517 (stating only that MDL 2036 is persuasive and failing to explain why Gutierrez does not apply); Hanjy v. Arvest Bank, 94 F.Supp.3d 1012, 1020-26 (E.D.Ark.2015) (assuming without deciding that federal preemption principles applied to a state- chartered bank via the Federal Deposit Insurance Act (“FDIA”), and finding persuasive the reliance by other district courts on MDL 2036); In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litig., 1 F.Supp.3d 34, 47-48 (E.D.N.Y.2014) (stating merely that the plaintiffs “do not seek a blanket prohibition on high-to-low posting” and reverting to reliance on MDL 2036); Hughes v. TD Bank, N.A., 856 F.Supp.2d 673, 680 (D.N.J.2012) (predating Gutierrez and relying solely on MDL 2036); In re Cheeking Account Overdraft Litig., 797 F.Supp.2d 1312, 1316-21 (S.D.Fla.2011) (predating Gutierrez and denying a motion to reconsider the prior ruling on preemption in MDL 2036); In re Checking Account Overdraft Litig., 694 F.Supp.2d 1302, 1313-14 (S.D.Fla.2010) (predating Gutierrez and relying on portions of the district court opinion that Gutierrez later reversed); White v. Wachovia Bank, N.A., 563 F.Supp.2d 1358, 1367 (N.D.Ga.2008) (predating Gutierrez and making the conclusory statement without further explanation that thé plaintiffs’ “exercise of their rights” under state contract and tort law only incidentally affected the national bank’s deposit-taking powers); Old National Bank v. Kelly, 31 N.E.3d 522, 528-31 (In.Ct.App.2015) (relying on MDL 2036 in making a distinction between an attack upon the right to charge overdraft fees writ large and an allegation of unlawful manipulation of an overdraft program to find only incidental impact); Higgins v. Pinnacle Fin. Partners, Inc., Case No. 11-C4858, slip op. at 598-99 (Tenn. 5th Cir. Ct. May 16, 2012) (predating Gutierrez, conflating the motion to dismiss standard with the applicability of preemption, and holding that preemption did not apply because ‘‘[pjlaintiff s state law claims ... do not involve state statutes and, therefore, do not impose any ‘state law limitation’ ”). In truth, the plaintiffs arguments center around the explication of preemption doctrine as it applies to overdraft fee policies offered by MDL 2036. In the In re Checking Account Overdraft MDL, the “common nucleus of specific facts pled assert[ed] a common practice by [defendant banks], to enter charges debiting Plaintiffs’ accounts from the ‘largest to the smallest’ thus maximizing the overdraft fee revenue for themselves.” In re Checking Account Overdraft Litig., 694 F.Supp.2d at 1307. The plaintiffs also asserted claims based on a number of other alleged agreements, policies, and practices “rely[ing] upon the legal theories of breach of contract and breach of a covenant of good faith and fair dealing, unconscionability, conversion, unjust enrichment, and violation of the consumer protection statutes of various states.” Id. When analyzing the preemption question specifically in the context of overdraft fees, the MDL court relied on the district court’s holding in Gutierrez, to distinguish between situations when a “‘bank’s fundamental right to employ an overdraft fee at all’” was challenged, in which case preemption would apply, and when a bank “‘has been manipulating— indeed downright altering — a customers’ transaction records so - as to maximize overdraft penalties ' imposed on customers,’ ” in which case preemption would not apply. See id, at 1312 (quoting Gutierrez v. Wells Fargo Bank, N.A., 2008 WL 4279550, at *7 (N.D.Cal. Sep. 11, 2008)). The MDL court also relied on White v. Wachovia Bank, N.A., 563 F.Supp.2d 1358 (N.D.Ga.2008) for the proposition that a lawsuit primarily alleging a national bank broke the law by routinely imposing overdraft fees for -transactions not resulting in an actual overdraft-was not of a “regulatory nature” that would subject it to federal preemption. Id. (quoting White, 563 F.Supp. at 1367). The MDL court then analyzed the overdraft issue in the context of OCC Interp. Ltr. No. 997, 2002 WL 32872368, at *2 (Apr. 15, 2002), and opined that the letter “does not authorize debit card postings in a high to low order to increase fees, it merely states that doing so does not violate the OCC’s requirement that banks set fees using sound banking judgment.” In re Checking Account Overdraft Litig., 694 F. Supp. 2d at 1313. The MDL court reasoned, “A bank could follow both the requirements of sound banking judgment outlined in [12 C.F.R. § 7.4007] and good faith; these principles are not in irreconcilable conflict.” Id, The court further stated that the contract and tort claims at issue “[were] state laws of general application that [did] not vitiate the purpose of the NBA, and banks could comply with both the NBA, OCC regulations and state laws if they refrained from engaging in the criticized posting procedures.” Id. Finally, the MDL court found that: The Plaintiffs alleged claims are not that banks lack the right to charge overdraft fees as part of their deposit-taking powers. Instead, Plaintiffs attack the allegedly unlawful manner in which the banks operate their overdraft programs to maximize fees at the expense of consumers. At this stage, these allegations do no more than incidentally affect the banks’ exercise of their deposit taking power and are therefore not preempted. Id. (emphasis in original). With due respect to the MDL court, this Court does not construe conflict preemption in the context of overdraft fee policy quite as narrowly, and finds the reasoning in Gutierrez more persuasive. First, the MDL court seems to conflate the “significant interference” standard, see Barnett Bank, 517 U.S. at 33, 116 S.Ct. 1103, with an “irreconcilable conflict” between state and federal law such that compliance with both regimes amounts to a “physical impossibility,” see Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S.Ct. 3294, 73 L.Ed.2d 1042 (1982); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). Undoubtedly, there are scenarios in which particular state laws do not “irreconcilably conflict” with a national bank’s federally authorized powers, yet significantly interfere with the exercise thereof. Where that is true, federal preemption applies. In other words, conflict preemption in the NBA context is not limited to those scenarios where state, law requires a bank to act in a way prohibited by federal law, or vice versa. The mere fact that a national bank can act consistently with both state and federal law in a particular area, does not preclude the possibility that the state law may “stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). This is why the standard set forth in Barnett Bank describes the category of state law that permissibly regulates national banks by way of two prongs, namely, when such state law does not “[1] prevent or [2] significantly interfere with the national bank’s exercise of its powers.” See 517 U.S. at 33, 116 S.Ct. 1103. Second, the MDL court’s observation that the plaintiffs in MDL 2036 were not claiming the national bank defendants lacked the right to charge them overdraft fees in general, appears to be a red herring. After implying that such a claim is the scenario where preemption would apply, the MDL court distinguished the claims actually raised by saying they challenged only the “unlawful manner” in which the banks operated their overdraft programs. However, this Court does not find that distinction to be of much help in deciding whether the state law claims raised here run afoul of the standard articulated in Barnett Bank. Of course, the preemption issue would be much easier to decide if the plaintiffs in the instant case simply averred “state law prevents TD Bank from charging us overdraft fees at all.” But the fact that they did not do so does not make the “significant interference” standard any less applicable or any less protective of a national bank’s exercise of its lawfully conferred discretion. The plaintiffs further argue that “ ‘sound banking judgment’ incorporates the concept of good faith, and an application of the contractual principle of good faith would not impinge the freedom of national banks to charge fees.” (Pis,’ Resp. in Opp. to Mot. to Dismiss, EOF No. 59 at 29.) In so doing, the plaintiffs implicitly challenge TD Bank’s overdraft fee policies on grounds that they exhibit a failure' to exercise “sound banking judgment.” It may very well be true that concepts of good faith can become relevant to the question of 'whether a bank has exercised sound banking judgment. Ultimately though, the inclusion of good faith considerations does not change the fact that the sound banking judgment inquiry “is within the exclusive purview of the OCC.” Gutierrez, 704 F.3d at 724-25; see Martinez v. Wells Fargo Home Mortg. Svcs., Inc., 598 F.3d 549, 556 n. 8 (9th Cir.2010). In the Court’s view, to superimpose good faith and fairness tests upon otherwise permissible actions by TD Bank is to subject the Bank to a degree of state- law regulation that neither the NBA nor the OCC regulations envision. Though the plaintiffs reference: it only cursorily in their response in opposition to the motion to dismiss, the In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litigation, 1 F.Supp.3d 34 (E.D.N.Y. 2014) case is probably the strongest persuasive a