The Federal Deposit Insurance Corp. accused Capital One of paying $99.4 million less than necessary to replenish the Deposit Insurance Fund following the 2023 failures of Silicon Valley Bank and Signature Bank, according to court documents filed Monday.

The FDIC’s lawsuit countered legal action taken in September against the regulator by the bank, which alleged the FDIC imposed an “outsized and improperly calculated” special assessment fee on Capital One. The FDIC inflated its assessment against Capital One by $149.2 million, the bank said in September.

At issue is a $56 billion position between two Capital One subsidiaries which, according to Monday’s lawsuit, Capital One excluded in its reporting of uninsured deposits. Capital One said the agency “erroneously” included the position as uninsured deposits, inflating what the bank owed.

The FDIC used funds from the DIF to protect uninsured depositors when banks fail. When SVB and Signature Bank were seized by the FDIC in March 2023, most of their deposits – 88% and 67%, respectively – were above the FDIC’s $250,000 threshold and “uninsured.” 

To recoup DIF funds later that year, the FDIC implemented a special assessment on the nation’s largest banks, including Capital One.

The FDIC argued Monday that Capital One benefits from deposit insurance, and that the funds were “deposits held at the bank for which the subsidiary already received the benefit of FDIC deposit insurance.”

"There are no time machines when it comes to special assessments,” the FDIC said.

Capital One and the FDIC did not immediately respond to requests for comment.