In arguments Wednesday in two banking cases, the Supreme Court seemed likely to uphold the industry's lower-court victories.
In the first case, the justices questioned the government's right to force the elimination of regulatory goodwill from thrifts' books. In the second, they suggested states should not be able to limit late charges and other fees assessed by out-of-state banks.
The goodwill case arose in the late 1980s when the Federal Savings and Loan Insurance Corp. was desperate to unload failing thrifts without depleting its insurance fund. It used goodwill to encourage healthy thrifts to acquire their ailing peers. Thrifts that jumped at the deal were allowed to count goodwill - the difference between the acquired thrift's assets and liabilities - as capital on their books for up to 40 years.
Congress, considering goodwill an accounting gimmick, eliminated the practice in the 1989 thrift bailout law. The loss of goodwill caused scores of thrifts to fail and led to nearly 100 breach of contract suits against the government. Regulators have said the government could be liable for $15 billion in damages if it loses the case.
During Wednesday's arguments in U.S. v. Winstar, Deputy Solicitor General Paul Bender said the contracts did not prohibit the government from changing its capital rules. Rather, he said, they let the thrifts carry goodwill on their books only as long as the law permitted.
That argument seemed not to sit well with several justices, who said they doubt that thrifts would have acquired sick institutions if they thought the government would change the capital rules and send them into insolvency.
"I just don't believe that would have happened," Justice Anthony Kennedy said.
Mr. Bender, however, said thrifts would have demanded explicit provisions in the contracts if they truly were worried about regulators' changing how they treat goodwill.
Congress can eliminate goodwill, but the government then becomes liable for breach of contract damages, said Charles Cooper, who represented Winstar in the case. "The government can't break this contract without any cost," he said.
Stephen J. Trafton, chairman of Glendale Federal Bank, declared victory after the arguments were presented. He said the justices raised many points that the lower courts had cited in deciding in the bank's favor. "The court, based on equal justice for all, will find in our favor," he predicted.
The credit card case involves Barbara Smiley of California, who sued Citibank South Dakota for charging her a $15 late fee. Her lawyer, Michael D. Donovan, argued that the National Bank Act lets states ban out-of-state institutions from leveling flat late charges that are not connected to the outstanding balance - $10 late charges are out, but 2% fines on overdue balances are permitted.
The justices poked holes in his argument. "Any flat rate can be converted into an interest rate," Justice Antonin Scalia said. "It is simply a question of mathematics."
Citibank's lawyer, Richard B. Kendall, echoed that sentiment during his argument. "Why should it matter that late charges are stated in different ways?" he said. "The function of this charge has not changed."
Assistant Solicitor General Irving L. Gornstein told the justices that the Office of the Comptroller of the Currency already decided this issue in Citibank's favor, ruling that late fees are permitted. He urged the court to defer to the comptroller's interpretation.
Decisions in the two cases are expected in early summer.