For many in the banking and credit union industries, the Supreme Court's 199-98 term begins and ends today.
The justices will hear arguments at 10 a.m. in National Credit Union Administration v. First National Bank and Trust, the landmark federal appeals court decision that restricted the right of 3,586 occupation-based credit unions to expand.
The stakes are substantial for these nonprofit institutions, which could be dismantled if the NCUA loses. "This is of huge significance for federal and state credit unions," said Brenda S. Furlow, deputy general counsel for litigation at the Credit Union National Association.
"The argument will determine the place that credit unions have in the nation's economy for years to come," agreed Michael F. Crotty, who holds the same job at the American Bankers Association. "Either they will continue to fulfill their historic mission of providing service to people of small means or they will become commercial banks in everything but name and tax status."
The case began in December 1990, when the ABA and four North Carolina banks sued the credit union regulator for giving AT&T Family Federal Credit Union permission to serve employees at more than 150 companies.
The case weaved its way through the courts for six years before the U.S. Court of Appeals for the District of Columbia ruled in July 1996 that all members of an occupation-based credit union must share a single common bond.
Acting Solicitor General Seth P. Waxman will argue that banks lack the right to challenge the NCUA's rule, and that even if they could, the court should defer to the agency's interpretation of the law.
To the government, this case is no different from the Barnett Banks insurance dispute of 1996 or the Valic annuities fight of 1995: A federal agency made a decision and the courts should defer to it.
Michael S. Helfer, a partner at the Washington office of Wilmer, Cutler & Pickering, will argue for the banking industry that several recent Supreme Court cases give companies the right to sue regulators for failing to enforce a law that applies to competitors.
He also will argue that the court should not defer to the regulator, because Congress explicitly rejected giving credit unions the right to serve multiple companies.
Finally, Mr. Helfer plans to note that agency officials repeatedly testified in the 1980s that the NCUA lacked authority to expand membership practices without a change in the law.
Despite its high profile, the credit union dispute is just one of about a dozen cases the Supreme Court will consider that will affect the banking industry.
On Tuesday the justices will hear Bates v. U.S., which involves the standard of proof the government must meet to convict borrowers of misapplying loan proceeds. Hudson v. U.S., scheduled for Wednesday, questions whether civil money penalties imposed by the Treasury Department constitute a punishment that prevents the Justice Department from prosecuting the same crime.
Two bankruptcy disputes also are on tap. On Nov. 3 the justices will hear Fidelity Financial Services v. Fink, which involves the steps a creditor must take to protect its interest in collateral from seizure by bankruptcy trustees.
Next spring the court will hear arguments in Rivet v. Regions Bank of Louisiana, which involves whether bankruptcy disputes over property liens should be tried in state or federal court.
The court also has accepted several business cases that could affect banks. State Oil Co. v. Khan addresses the standard of proof for antitrust cases involving vertical pricing agreements, and Piscataway Township v. Taxman questions the use of affirmative action in layoff decisions.
The Lincoln Savings and Loan debacle re-surfaces Nov. 10 in Lexecon v. Milberg Weiss, which questions the authority of the courts to transfer related cases to a single judge for trial. The justices on Nov. 4 will decide in U.S. v. Bajakajian whether the government may seize currency being illegally shipped out of the country.
The justices also will decide in Phillips v. Washington Legal Foundation if interest earned on trust accounts for lawyers may be donated to charity. More than a thousand banks offer these so-called IOLTA accounts, which lawyers use to hold money for clients.
The Supreme Court is expected to decide soon whether it will hear several other cases of interest to bankers, including:
Young v. Federal Deposit Insurance Corp., which questions whether the agency may use the so-called D'Oench Duhme doctrine to void oral contracts made by banks that subsequently failed.
Astoria Federal Savings and Loan v. New York, which involves whether New York must rebate taxes to banks that hold Treasury bonds and other securities.
Brown v. FDIC, which questions whether citizens may sue the Resolution Trust Corp. for failing to let them bid on a mortgage secured by property they were in default on.
Williams v. Franklin First Federal Savings Bank, which questions whether a lender is responsible for back taxes and damages to a property that it foreclosed on and then later returned to the borrower.