Today, the Supreme Court granted certiorari in four cases of interest to the business community:

Federal Jurisdiction—Fannie Mae

Lightfoot v. Cendant Mortgage Corp., No. 14-1055

The Federal National Mortgage Association—better known as "Fannie Mae"—is a quasi-governmental enterprise that operates under a federal charter but that has private owners. Fannie Mae's charter authorizes the entity to sue and be sued "in any court of competent jurisdiction, State or Federal." 12 U.S.C. § 1723a(a). The Supreme Court has agreed to decide whether that provision confers original jurisdiction on the federal courts for any case in which Fannie Mae is a party.

Such sue-and-be-sued clauses arise in a variety of federal statutes, involving individuals and entities such as the Secretary of the Department of Housing and Urban Development and the Federal Home Loan Bank of Boston. The United States filed a certiorari-stage brief taking the position that Fannie Mae's charter does not provide district courts with original jurisdiction of suits brought by or against Fannie Mae.

Bankruptcy Code—Structured Dismissals

Czyzewski v. Jevic Holding Corp., No. 15-649

A Chapter 11 bankruptcy is implemented through a plan that assigns allowed claims to classes of different priority levels. Unsecured claimants without priority are not entitled to any payment on their claims until all priority claims have been satisfied.

Czyzewski involves a company that, shortly before declaring bankruptcy, was acquired in a leveraged buyout. The bankruptcy court appointed an Official Committee of Unsecured Creditors, which pursued a fraudulent-conveyance action on behalf of the estate. The parties to that adversarial action negotiated a settlement whereunder funds would be used to satisfy claims with a lower priority than the unpaid-wage claims of the debtor's former employees.

Over the objection of the former employees and the U.S. Trustee, the bankruptcy court approved the settlement, and the district court and court of appeals affirmed. At the Supreme Court, the United States has taken the position that the Bankruptcy Code does not permit the approval of structured dismissals that contravene the statutory priority scheme, absent the consent of the creditors.

Because the possibility of a settlement can be expected to arise whenever a debtor is administratively insolvent, this case may prove significant to the course of proceedings under Chapter 11.

Sherman Act—Conspiracy by Members of a Business Association

Visa v. Osborn, No. 15-961
Visa v. Stoumbos, No. 15-962

Prior to initial public offerings in 2008 and 2006, respectively, Visa and MasterCard were owned by groups of member banks. Plaintiffs filed suit under the Sherman Antitrust Act, alleging that Visa and MasterCard had conspired with their member banks to reduce competition for the fees on certain ATMs. The D.C. Circuit ruled that the plaintiffs had stated a claim that survived a motion to dismiss.

The Supreme Court has now agreed to resolve a circuit split concerning whether and how members of a business association can engage in acts in furtherance of an antitrust conspiracy. In particular, the plaintiffs allege that the member banks conspired with the bankcards by agreeing to follow the bankcard's rules. The defendants contend that membership in a business association does not alone constitute a conspiracy under the Sherman Act.

Fair Housing Act—Standing

Bank of America Corp. v. Miami, No. 15-1111
Wells Fargo & Co. v. Miami, No. 15-1112

The Fair Housing Act (FHA) permits any "aggrieved person" to sue for housing discrimination. The U.S. Court of Appeals for the Eleventh Circuit held that a person is "aggrieved" for purposes of the FHA whenever he has standing under Article III. The court acknowledged that, were the Supreme Court to consider the question today, it may well find, as a statutory matter, that a plaintiff must satisfy both Article III and a prudential standard that assesses whether the plaintiff's claim is within the zone of interests that the statute was designed to protect. But the Eleventh Circuit considered itself to be limited by a series of Supreme Court decisions from 1972 to 1982 that address the right to sue under the FHA.

The Supreme Court has now granted and consolidated two cases to consider whether an FHA plaintiff must fall within the zone of interests of the anti-discrimination statute.

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