Federal Deposit Insurance Corporation v. Bank of America, N.A. ( 2018 )


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  • UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLUMBIA
    FEDERAL DEPOSIT INSURANCE
    )
    )
    CORPORATION, )
    )
    Plaintiff, )
    )
    v. )
    )
    BANK OF AMERICA, N.A. ) CiVil ACtiOn NO. 17-36 (EGS)
    ) REDACTED
    )
    Defendant. )
    )
    MEMDRANDUM OPINION
    I. Introduction
    Every quarter, insured banking institutions make payments,
    known as “assessments,” into the Deposit Insurance Fund
    (“Fund”), which insures depositors’ accounts up to $250,000.
    Pursuant to the Federal Deposit Insurance Act (“FDIA" or “Act”),
    see 12 U.S.C. § 1817, the Federal Deposit Insurance Corporation
    (“FDIC”) created a “risk-based” system to calculate each
    institution’s assessment based on that institution’s self-
    reported, quarterly data. The FDIC alleges that defendant Bank
    of America, N.A. (“BANA”) improperly reported its quarterly
    data, thereby underpaying for deposit insurance. According to
    the FDIC, BANA owes $1.12 billion in deposit insurance
    assessments, which it refuses to pay.
    The FDIC’s amended complaint alleges that (l) BANA failed
    to pay mandatory assessments in violation of the FDIA; and (2)
    BANA was unjustly enriched when it received deposit insurance
    without fully paying for it. BANA counterclaimed, challenging
    the FDIC'S regulations, which purportedly set out the method by
    which regulated institutions must calculate and report their
    quarterly data. BANA argues that the regulations violate the
    Administrative Procedure Act, 5 U.S.C. § 500 et seq., and are
    contrary to the FDIA. Pending before the Court is BANA's motion
    to dismiss the FDIC's amended complaint in part or strike in
    part. See Def.’S Mot., ECF No. 13.1 After careful consideration
    of the motion, the response, the reply thereto, and the
    applicable law, BANA's motion to dismiss or strike the FDIC’s
    amended complaint in part is DENIED.
    II. Background
    The FDIC is a “government corporation and instrumentality
    of the United States.” Am. Compl., ECF No. 10 I 16. It examines
    and supervises almost 3,800 commercial banks and savings
    institutions for operational safety and soundness. 
    Id. It also
    administers the Fund, which provides deposit insurance to over
    5,000 banks and savings institutions, insuring accounts of up to
    1 When citing electronic filings throughout this opinion, the
    Court cites to the ECF page number, not the page number of the
    filed document.
    $250,000 per depositor. 
    Id. IL 2,
    16. If an institution fails,
    the FDI¢ ensures that the depositors are able to access their
    insured accounts at that institution; if the institution’s
    assets are insufficient to return all insured deposits, the FDIC
    pays the balance from the Fund. 
    Id. L 21.
    As required by the FDIA, the FDIC finances the Fund with
    assessments collected from FDIC-insured institutions. 
    Id. I 24.
    To determine the amount that each institution must pay, the FDIC
    utilizes a “risk-based” assessment system. 
    Id. The system
    calculates each assessment rate based on that institution’s
    “risk profile.” 
    Id. The risk
    profile captures the probability
    that the institution will fail and, in the event of failure, the
    potential amount of loss that the Fund will bear. 
    Id. To determine
    each institution’s risk profile, the FDIC implemented
    a “regulatory regime” that requires certain institutions to
    self-report specific data via quarterly “Call Report[s].” 
    Id. LI 29,
    32. This data, which includes the amount.that the
    institution has lent to Other entities, is intended to capture
    the risk of failure.2 
    Id. LL 30-39.
    Because BANA is one of the
    2Given the early stage of this litigation and the fact that the
    arguments addressed in this Memorandum Opinion relate to the
    parties' legal arguments regarding the sufficiency of the
    complaint, the Court does not set forth the details of the
    complex underlying regulatory scheme.
    largest insured institutions, it is subject to the FDIC's
    assessment system and must report its quarterly data. 
    Id. L 25.
    The FDIC alleges that, from the second quarter of 20113
    through the fourth quarter of 2014, BANA improperly reported its
    quarterly data, thereby understating its risk profile. Am.
    Compl., ECF No. 10 I 43. As a result, the FDIC underbilled BANA
    for deposit insurance. Had BANA properly reported its data, it
    allegedly would have owed the FDIC an additional $1.12 billion
    in assessment payments. 
    Id. II 48,
    60. According to the FDIC,
    BANA knew how to properly report its data but “decided not to
    [do so].” 
    Id. IL 57-59.
    Instead, it “certified as true and
    Correct,” pursuant to the FDIA, every Call Report at issue. 
    Id. L 68
    (referring to 12 U.S.C. § 1817(a)(3)). The FDIC purportedly
    did not “learn[] the full extent of [BANA's] reporting failure”
    until 2016. 
    Id. T 9.
    The FDIC thereafter invoiced BANA for the
    $1.12 billion it allegedly owes. 
    Id. LL ll,
    65. BANA purportedly
    refuses to pay. 
    Id. T 12.
    On January 9, 2017, the FDIC sued BANA for $542 million for
    failing to pay its mandatory assessments from the second quarter
    Of 2013 through the fourth quarter of 2014. See Compl, ECF No.
    3 The FDIC concedes that BANA does not owe assessments for the
    second, third, and fourth quarters of 2011. In its amended
    Complaint, it seeks underpaid assessments from the first quarter
    of 2012 through the fourth quarter of 2014. Am. Compl., ECF No.
    10 T 43.
    l. On April 7, 2017, the FDIC amended its complaint, adding a
    claim for unjust enrichment. See Am. Compl., ECF No. 10 HI 72-
    94. The amended complaint alleges that BANA owes the FDIC an
    additional $583 million for underpayments predating the second
    quarter of 2013. 
    Id. The FDIC
    requests that the Court order BANA
    to pay the full amount it owes, including interest, costs, and
    disgorgement of profits unjustly earned. 
    Id. T 22.
    On May 5,
    2017, BANA filed a motion to dismiss or strike the FDIC’s
    amended complaint in part for failure to state a claim for
    relief pursuant to Federal Rule of Civil Procedure 12(b)(6). See
    Def.’s Mot., ECF No. 13.
    III. Standard of Review
    A motion to dismiss pursuant to Federal Rule of Civil
    Procedure 12(b)(6) tests the legal sufficiency of a complaint.
    Browning v. Clinton, 
    292 F.3d 235
    , 242 (D.C. Cir. 2002). A
    complaint must contain “a short and plain statement of the claim
    showing that the pleader is entitled to relief, in order to give
    the defendant fair notice of what the . . . claim is and the
    grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007) (internal quotations and citations
    omitted).
    Despite this liberal pleading standard, 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.” Ashcroft v. Iqbal, 
    556 U.S. 662
    , 678 (2009)
    (internal quotations and citations omitted). A claim is facially
    plausible when the facts pled in the complaint allow the court
    to “draw the reasonable inference that the defendant is liable
    for the misconduct alleged.” 
    Id. The standard
    does not amount to
    a “probability requirement,” but it does require more than a
    “sheer possibility that a defendant has acted unlawfully.” 
    Id. “[W]hen ruling
    on a defendant's motion to dismiss [pursuant
    to Rule 12(b)(6)], a judge must accept as true all of the
    factual allegations contained in the complaint.” Atherton v.
    D.C. Office of the Mayor, 
    567 F.3d 672
    , 681 (D.C. Cir. 2009)
    (internal quotations and citations omitted). In addition, the
    court must give the plaintiff the “benefit of all inferences
    that can be derived from the facts alleged.” Kowal v. MCI
    Commc’ns Corp., 
    16 F.3d 1271
    , 1276 (D.C. Cir. 1994). Even so,
    “[t]hreadbare recitals of the elements of a cause of action,
    supported by mere conclusory statements” are not sufficient to
    state a claim. 
    Iqbal, 556 U.S. at 678
    .
    IV. Analysis
    BANA moves to dismiss or strike in part the FDIC's amended
    complaint for failure to State a claim. See Def.’s Mot., ECF No.
    13. It makes three arguments: (l) the FDIC’s unjust enrichment
    claim should be dismissed because the FDIA provides the FDIC
    with an adequate legal remedy; (2) the FDIC’s unjust enrichment
    claim should be dismissed because the FDIC did not allege unjust
    enrichment as a matter of law; and (3) the FDIC's claims for
    unpaid assessments predating the first quarter of 2013 should be
    dismissed as time-barred. See 
    id. at 6-7.
    The Court analyzes
    each in turn.
    A.The FDIC is Permitted to Plead Alternative Theories of
    Liahility at This Stage of Litigation
    BANA argues that the FDIC's claim for unjust enrichment
    must be dismissed because unjust enrichment, an equitable
    remedy, is not available when a plaintiff has an adequate legal
    remedy. Def.’s Mot., ECF No. 13 at 12-17. BANA argues that Count
    I-the FDIC’s FDIA claim for failure to pay mandatory assessments
    pursuant to 12 U.S.C. § 1817(g)(1)-precludes the FDIC from
    bringing Count II-its claim for unjust enrichment-because both
    claims are “coterminous.” 
    Id. Put differently,
    BANA argues that
    the claims cannot coexist because they seek the “very same
    relief” for the same alleged behavior. 
    Id. The FDIC
    responds with several arguments: (1) its unjust
    enrichment claim should survive because the FDIA explicitly
    authorizes the FDIC to pursue common-law claims alongside its
    statutory claim, see Pl.'s Opp'n, ECF No. 21 at 24-25 (citing 12
    U.S.C. § 1817(h)); (2) it may plead both claims because Federal
    Rule of Civil Procedure 8(d) permits alternative theories of
    liability, see 
    id. at 25-27;
    (3) its claims may proceed because
    the Third Restatement of Restitution permits equitable claims
    notwithstanding an adequate legal remedy, see 
    id. at 27-28;
    and
    (4) BANA’s argument is irrelevant because the FDIC is not
    seeking equitable remedies, see 
    id. at 29-32.
    Because the Court
    is persuaded that the FDIC may plead alternate theories of
    liability, it need not evaluate each of the FDIC's arguments.
    Unjust enrichment is generally an equitable cause of
    action. See, e.g., Ga Dep’t of Cmty. Health v. U.S. Dep’t of
    Health & Human Servs., 
    79 F. Supp. 3d 269
    , 280-82 (D.D.C. 2015),
    amended on other grounds by 
    110 F. Supp. 3d 95
    (D.D.C. 2015),
    Ordinarily, equitable remedies are not available when a
    plaintiff has an adequate legal remedy. Terrace v. Thompson, 
    263 U.S. 197
    , 214 (1923) (“[A] suit in equity does not lie where
    there is a plain adequate and complete remedy at law . . . .”).
    Such a proposition is “so well understood as not to require the
    citation of authorities.” 
    Id. That said,
    “[t]he mere existence
    of a remedy at law is not sufficient to warrant denial of
    equitable relief.” Ga. Dep't of Cmty. 
    Health, 79 F. Supp. 3d at 281
    (citing Council of & for the Blind of Delaware Cnty. Valley,
    Inc. v. Regan, 
    709 F.2d 1521
    , 1550 n. 76 (D.C. Cir. 1983)).
    Instead, “[t]he legal remedy, both in respect to the final
    relief and the mode of obtaining it, must be ‘as efficient as
    the remedy which equity would afford under the same
    circumstances.'” 
    Id. (quoting Regan,
    709 F.2d at 1550, n. 76).
    The Court must_therefore evaluate the plaintiff’s remedies under
    the circumstances, a factual undertaking. See 
    id. Federal Rule
    of Civil Procedure 8(d)(2) authorizes a party
    to “set out [two] or more statements of a claim or defense
    alternatively or hypothetically, either in a single count
    or in separate ones.” Therefore, “[i]t is not generally a ground
    for dismissal of a complaint asserting equitable claims that the
    plaintiff has an adequate remedy at law.” In re G-Fees Antitrust
    Litig.} 
    584 F. Supp. 2d 26
    , 46 (D.D.C. 2008)(quoting 1 Moore’s
    Fed. Prac. § 2.03[2] (Matthew Bender 3d ed.)(“Unjust enrichment
    is a common law equitable claim, available only where there is
    no adequate remedy at law. Rule 8, however, expressly permits
    pleading in the alternative . . ., even where [the plaintiff]
    appear[s] to have an adequate remedy at law.”). Guided by that
    principle, courts in this Circuit have repeatedly denied motions
    to dismiss equitable claims, even when adequate legal remedies
    were available. See United States v. First Choice Armor &
    Equip., 
    808 F. Supp. 2d 68
    , 77-78 (D.D.C. 2011) (declining to
    dismiss the government's unjust enrichment claim against certain
    defendants, despite the availability of a False Claims Act
    statutory claim, because “Rule 8(d)(2) allows a plaintiff to
    plead alternative theories of liability”); United States v.
    Toyobo Co., 
    811 F. Supp. 2d 37
    , 52 (D.D.C. 2011) (“A plaintiff
    in an [False Claims Act] action may plead-if not ultimately
    recover upon-alternative common law theories.”); United States
    ex rel. Purcell v. MWI Corp., 
    254 F. Supp. 2d 69
    , 79 (D.D.C.
    2003)(“Accordingly, at the motion-to-dismiss stage, courts in
    this district and elsewhere have permitted the government to
    proceed with claims alleging [statutory] violations as well as
    claims for unjust enrichment . . . .”). The Court finds this
    reasoning persuasive, and declines to adopt the reasoning of
    courts in other Circuits cited by BANA. Def.’s Reply Mot., ECF
    No. 25 at 10 n.l, 12.
    Furthermore, the one case BANA cites from this Circuit is
    inapplicable at this stage. BANA points to Georgia Department of
    Community Health v. U.S. Department of Health & Human Services,
    in which Judge Kessler allowed the unjust enrichment claim to
    proceed, but “only after” determining that the plaintiff lacked
    an adequate legal remedy. Def.’s Reply Mot., ECF No. 25 at 10
    
    (discussing 79 F. Supp. 3d at 281
    ). True, Judge Kessler did
    examine whether the plaintiff had an adequate legal remedy, but
    was able to do so on summary judgment. Ga. Dep’t of 
    Health, 79 F. Supp. 3d at 281
    . Judge Kessler’s determination that the
    plaintiff’s legal remedy was not “as efficient as the remedy
    which equity would afford under the same circumstances,” was
    necessarily factual. 
    Id. (quoting Regan,
    709 F.Zd at 1550 n.
    76). At this early stage, the Court is unable to evaluate the
    adequacy of the FDIC's legal remedy “in this situation.” See 
    id. 10 Finally,
    BANA argues that its case is distinguishable from
    the persuasive authority in this Circuit because the FDIC’S
    legal remedy is “coterminous” with its unjust enrichment claimj
    meaning the unjust enrichment claim “turn[s] entirely on whether
    [BANA] violated the statute [FDIA] that provided the legal cause
    of action.” Def.’s Reply, ECF No. 25 at 12. This argument is
    unavailing. In United States ex rel. Purcell v. MWI Corporation,
    the Court declined to dismiss the government's unjust enrichment
    claim even though the government may have had an adequate legal
    remedy via the False Claims 
    Act. 254 F. Supp. 2d at 79
    . The
    government's unjust enrichment claim also turned-as BANA puts
    it- “entirely on” whether the defendants had violated the
    statute. See 
    id. at 73-74;
    Def.’s Reply, ECF No. 25 at 12.
    Specifically, the government alleged: (1) the defendants had
    violated the False Claims Act by making false statements in
    order to obtain government payment; and (2) the defendants were
    unjustly enriched because they received those payments as a
    result of the same allegedly false 
    statements. 254 F. Supp. 2d at 73-74
    . Notwithstanding the fact that the False Claims Act's
    remedies may have been “more than adequate,” the Court allowed
    the plaintiff to plead alternative theories of liability at the
    motion-to-dismiss stage. 
    Id. at 78-79.
    Therefore, the Court
    concludes that the FDIC may plead-if not ultimately recover
    upon-alternative common law theories.
    11
    B.The FDIC Adequately Alleged an Unjust Enrichment Claim
    BANA also argues that the FDIC's unjust enrichment claim
    must be dismissed because the FDIC did not plead the first
    element of unjust enrichment: that the FDIC conferred a benefit
    upon BANA, Def.'s Mot., ECF No. 13 at 17-18. Rather, the FDIC
    alleged that BANA failed to pay its assessment fees, as was
    already legally required. 
    Id. at 18.
    The FDIC contends that it
    sufficiently pled that BANA was unjustly enriched because it
    received a valuable benefit-deposit insurance-for which it
    underpaid. Pl.'s Opp'n, ECF No. 21 at 34-37.
    To state a claim for unjust enrichment, a plaintiff must
    allege that: (1) the plaintiff conferred a benefit on the
    defendant; (2) the defendant retained that benefit; and (3)
    under the circumstances, the defendant’s retention of the
    benefit was unjust. News World Commc’ns, Inc. v. Thompsen, 878
    A.Zd 1218, 1222 (D.C. 2005). As relevant here, the Court of
    Appeals for the District of Columbia Circuit (“D.C. Circuit”)
    has interpreted the first element liberally, finding that a
    plaintiff “confers a benefit” upon a defendant if it “in any way
    adds to the other’s security or advantage . . . [or] adds to the
    property or another . . . [or] saves the other from expense of
    loss.” Bregman v. Perles, 
    747 F.3d 873
    , 878 (D.C. Cir. 2014)
    (quoting Restatement (First) of Restitution § 1 (1937)).
    12
    The FDIC plainly alleged that it provided BANA with a
    benefit, for which it underpaid. Am. Compl., ECF No. 10 LI 21-
    23. At the very least, it is plausible that deposit insurance is
    a “benefit,” as contemplated by the D.C. Circuit. AS the FDIC
    puts it: “[d]eposit insurance afford[s] [BANA] the benefit of
    being able to offer customers deposit accounts that are insured
    against loss in the event of failure.” 
    Id. q 23.
    Accepting the
    FDIC's allegations as true, deposit insurance “allows [BANA] to
    attract new customers and keep existing ones . . . [and] helps
    [BANA] prevent a ‘bank run,’ during which a panic about [BANA's]
    solvency could lead to queues of people seeking to withdraw
    their money.” 
    Id. To that
    end, deposit insurance plausibly “adds
    to [BANA's] security” and “saves [BANA] from expense of loss.”
    
    Bregman, 747 F.3d at 878
    . Moreover, the D.C. Circuit has
    recognized that “equitable principles are not confined by rigid
    formulas” and that a defendant can be “unjustly enrich[ed]
    from paying too little.” Mitchell v. Riegel Textile, Inc., 
    259 F.2d 954
    , 956 (D.C. Cir. 1958). The FDIC alleged that BANA
    “unjustly enriched itself at the expense of the FDIC” by paying
    too little for deposit insurance and “retaining [the] $1.12
    billion that it owes the FDIC.” Def.’s Mot., ECF No. 13 at 17-18
    (quoting Am. Compl., ECF NO. 10 I 92).
    BANA relies on Rapaport v. U.S. Department of Treasury for
    the proposition that a defendant is not unjustly enriched, as a
    13
    matter of law, when it merely fails to pay what it already owes.
    Def.’s Mot., ECF No. 13 at 18 (discussing 
    59 F.3d 212
    , 217-20
    (D.C. Cir. 1995)). Rapaport is inapplicable. In that case, the
    government provided deposit insurance to a financial association
    on the condition that Rapaport, the majority shareholder of the
    association, provide a certain amount of capital. 
    Id. at 213-
    214. When Rapaport failed to provide that capital, the
    association failed and the government sued him for unjust
    enrichment. 
    Id. at 214,
    217. The D.C. Circuit found that the
    government failed to establish the first element of unjust
    enrichment because the association-not Rapaport-received the
    benefit (deposit insurance). 
    Id. at 217-18.
    At most, Rapaport
    received an “indirect benefit.” 
    Id. Unlike this
    case, however,
    the FDIC pled that BANA directly received a benefit-deposit
    insurance-and it underpaid for that benefit, 
    Id. at 217-18;
    see
    Am. Compl., ECF No. 10 LI 21-23, 70-71.
    C.It is Premature to Strike the FDIC's Claims as Untimaly
    1.Count I: FDIA Claim
    BANA argues that the Court should dismiss or strike the
    FDIC's FDIA claim for the allegedly underpaid assessments from
    14
    the first4 quarter of 2012 through the first quarter of 20135 as
    time-barred under the FDIA's “straightforward three-year statute
    of limitations.” Def.’s Mot., ECF No. 13 at 19-21 (citing 12
    U.S.C. § 1817(g)(2)). The FDIC contends that the claims should
    not be dismissed because they are not conclusively time-barred
    on the face of the complaint. Pl.'s Opp'n, ECF No. 21 at 37-45.
    Instead, according to the FDIC, there are “contested questions
    of fact” as to whether BANA’s actions fall within the FDIA's
    exception, which tolls the statute of limitations when a
    defendant made a false or fraudulent statement with intent to
    evade any assessment. 
    Id. at 38;
    12 U.S.C. § 1817(g)(2)(C).6 BANA
    argues that this exception is not applicable because the FDIC
    4 Throughout its motion, BANA argues that the Court should
    dismiss the FDIC’s claims starting at different quarters.
    Compare Def.’s Mot., ECF No. 13 at 25 (arguing the Court should
    dismiss the FDIC's claims for the “first quarter of 2012 through
    the first quarter of 2013”) with 
    id. at 19
    (arguing the Court
    should dismiss the FDlC’s claims for “the second quarter of 2012
    through the first quarter of 2013”). The Court will assume that
    BANA intends to strike the FDIC's claims starting the first
    quarter of 2012.
    Regardless, the starting
    date does not change the Court’s analysis.
    5 BANA concedes that the alleged underpayments for the second
    quarter of 2013 through the fourth quarter of 2014 are subject
    to a tolling agreement and are therefore not time-barred. Def.’s
    Mot., ECF No. 13 at 20 n. 2.
    6 The FDIC also argues that it can change an invoice's “due date”
    by submitting revised invoices. Pl.'s Opp'n, ECF No. 21 at 45-
    50. Because the Court finds that the FDIC’s claims are not
    conclusively time-barred on the face of the complaint, it need
    not evaluate this theory.
    15
    did not allege that BANA made a false or fraudulent statement
    with intent to evade its assessments in its complaint. Def.’s
    Mot., ECF No. 13 at 20-21.
    Claims brought pursuant to the FDIA are subject to a three-
    year statute of limitations: “any action . . . to recover from
    an insured depository institution the underpaid amount of any
    assessment Shall be brought within [three] years after the date
    the assessment was due.” 12 U.S.C. § 1817(g)(2)(B). Payments are
    “due” about ninety days after the end of each quarter. See 12
    C.F.R. § 327.3(b)(2)(listing the assessment due dates for each
    quarter). Pursuant the FDIA, there are two exceptions to the
    statute of limitations, one of which is relevant here: “If an
    insured depository institution has made a false of fraudulent
    statement with intent to evade any or all of its assessment,”
    the FDIC “shall have until [three] years after the date of
    discovery of the false or fraudulent statement” to bring an
    action. 12 U.S.C. § 1817(g)(2)(C).
    “[B]ecause statute of limitations issues often depend on
    contested questions of fact, dismissal is appropriate only if
    the complaint on its face is conclusively time-barred.” Bregman
    v. Perles, 
    747 F.3d 873
    , 875-76 (D.c. cir. 2014) (quoting de
    Csepel v. Republic of Hungary, 
    714 F.3d 591
    , 603 (D.C. Cir.
    2013)). A Court should therefore “hesitate to dismiss a
    complaint on statute of limitations grounds” unless the
    16
    defendant has met its “heavy burden” to show that the complaint
    is time-barred and there is no dispute as to “when the
    limitations period began.” Feld Ent., Inc. v. Am. Soc’y for the
    Prevention of Cruelty to Animals, 
    873 F. Supp. 2d 288
    , 308
    (D.D.C. 2012) (quoting DePippo v. Chertoff, 
    453 F. Supp. 2d 30
    ,
    33 (D.D.C. 2006); Turner v. Afro-American Newspaper Co., 572 F.
    Supp. 2d 71, 72 (D.D.C. 2008)).
    Rather than establish that the complaint is conclusively
    time-barred, BANA argues that the FDIA’s exception does not
    apply because the FDIC failed to allege that BANA made a false
    Or fraudulent statement with intent to evade assessments. Def.’s
    Mot., ECF No. 13 at 20-21. The Court disagrees. A plaintiff does
    not need to plead facts in its complaint to respond to a
    potential affirmative defense. Beach TV Props. v. Solomon, 
    254 F. Supp. 3d 118
    , 133 (D.D.C. 2017). That a complaint is time-
    barred is an affirmative defense that defendant must prove. See
    Firestone v. Firestone, 
    76 F.3d 1205
    , 1210 (D.C. Cir.
    1996)(noting that the fact that the plaintiff had pled
    fraudulent concealment does not “mean that a plaintiff must
    plead [an affirmative defense] in the complaint”). Therefore,
    the FDIC had no obligation to allege “with particularity” that
    BANA made false statements with the intent to evade assessment
    payments because the FDIC is not obligated to anticipate BANA's
    affirmative defenses. Def.’s Mot., ECF No. 13 at 21 (citing Fed.
    
    17 Rawle Civ
    . P. 9(b)); 
    Firestone, 76 F.3d at 1210
    ; see also Gomez v.
    Toledo, 
    446 U.S. 635
    , 640 (1980) (finding there was “no basis
    for imposing on the plaintiff an obligation to anticipate [a
    qualified immunity defense] by stating in his complaint that the
    defendant acted in bad faith” because the defendant bears the
    burden to plead the affirmative defense). Applying this well-
    settled precedent, the Court concludes that barring the FDIC's
    claims at this stage is premature.
    Furthermore, whether BANA made a false statement with
    intent to evade its assessments is a “contested question[] of
    fact,” precluding dismissal at the pleadings stage. 
    Brcgman, 747 F.3d at 875-76
    . The Court finds that the FDIC has alleged facts
    sufficient to allow the reasonable inference that BANA acted
    with intent to evade assessments. Specifically, the FDIC alleges
    that BANA should have known how to properly report its data
    because the same compliance group was responsible for reporting
    both BANA's and its parent corporation's quarterly data. Am.
    Compl., ECF No. 10 TI 57-60. According to the FDIC, the parent
    company reported its data to a different regulating entity
    correctly, but BANA “decided not to” report its data to the FDIC
    the same way. 
    Id. at €'[
    58 (omphasis added) . _
    that BANA “certified as true and correct” its reporting,
    “despite the fact that [it] did not [do so].” 
    Id. at l
    68. All
    three allegations, when taken as true, reasonably lead to the
    inference that BANA deliberately underreported its risk data in
    order to evade full assessment payments.
    Likewise, assuming BANA did make a false statement with
    intent to evade, BANA has not established that there is no
    factual dispute as to “when the limitations period began.” Feld
    Ent., 
    Inc., 873 F. Supp. 2d at 308
    . To illustrate, the parties
    dispute the date that the FDIC discovered any alleged false
    statement. The FDIC argues that it did not discover BANA's
    underpayments until 2016, while BANA argues that the FDIC was
    aware of its reporting methodology as early as 2012. Compare
    Def.’s Mot., ECF No. 13 at 21-22 n.3, with Am. Compl., ECF No.
    10 l 65.
    2.Count II: Unjust Enrichment Claim
    BANA argues that the Court should also dismiss the FDIC’s
    unjust enrichment claim for the same time period-the first
    quarter of 2012 through the first quarter of 2013-because it is.
    also time-barred under a three-year limitations period pursuant
    to District of Columbia (“D.C.”) law, Def.’s Mot, ECF No. 13 at
    22-24; Def.’s Reply, ECF No. 25 at 30-31. Alternatively, BANA
    argues that the FDIA's three-year statute of limitations also
    applies to the unjust enrichment claim because Section
    1817(g)(2) “governs all ‘actions relating to assessments.'”
    19
    Def.’s Mot., ECF No. 13 at 22 (quoting with emphasis 12 U.S.C. §
    1817(g)(2)). In response, the FDIC argues that (1) its unjust
    enrichment claim is timely under the FDIA because the previously
    discussed exception applies; and (2) its claim is timely under
    D.C. law because the statute of limitations does not begin to
    run until a defendant wrongfully refuses to pay, and BANA did
    not refuse to pay its assessments until March 2017. Pl.’S Opp'n,
    ECF No. 21 at 51. Finally, the FDIC argues that federal law,
    which provides for a six-year statute of limitations, applies to
    its unjust enrichment claim. 
    Id. at 50-51
    (citing 28 U.S.C. §
    2415(a)).
    The Court need not decide, at this stage of the proceedings,
    which statute of limitations applies because BANA has not
    established that the FDIC’s claims would be conclusively time-
    barred under any of these limitations periods.
    If the Court were to accept BANA's argument that it should
    apply the FDIA’s three-year statute of limitations, the
    previously discussed factual dispute arises. 
    See supra
    Sec.
    IV(C)(i). Therefore, the Court cannot dismiss the relevant
    alleged underpayments as time-barred because it is plausible
    that BANA made a false statement with the intent to evade
    assessment payments, tolling the statute of limitations. See 12
    U.s.c. § 1217(g)(2)(c).
    20
    Likewise, were the Court to accept BANA's argument that the
    three-year statute of limitations pursuant to D.C. law governs,
    another factual dispute arises. Def.’s Reply, ECF No. 28 at 30-
    31. Under D.C. law, the three-year statute of limitations for
    unjust enrichment claims begins to run “only when the enrichment
    actually becomes unlawful, i.e., where there has been a wrongful
    act giving rise to a duty of restitution.” 
    Bregman, 747 F.3d at 876
    (quoting News World Commc'ns v. Thompsen, 
    878 A.2d 1218
    ,
    1225 (D.C. 2005)(“[T]he statute of limitations begins to run
    when the plaintiff's last service has been rendered and
    compensation has been wrongfully withheld.”)). The FDIC argues
    that BANA only wrongfully withheld payment once the FDIC
    demanded it, which did not occur until after the FDIC discovered
    the alleged underpayments in 2016 or 2017. Am. Compl., ECF No.
    10 II 61-71. BANA argues that the FDIC knew that it had
    allegedly withheld payments as early as 2012. See Def.’s Mot.,
    ECF No. 13 at 21-22 n.3. Thus, BANA necessarily argues that the
    Court should make a factual determination without the benefit of
    discovery. The Court cannot do so at this stage.
    21
    V. Conclusion
    Accordinglyi_for the reasons set.forth in this Memorandum
    Opinion, BANA's motion to dismiss or strike the FDIC’s amended
    complaint in part is DENIED.
    SO ORDERED.
    Signed: Emmat G. Sullivan
    United States District Judge
    March 27, 2018
    22