While business cases perhaps do not typify the popular culture war du jour, they are no less significant. As one commentator noted in a 2008 analysis of the Court's recent opinions,

Business cases at the Supreme Court typically receive less attention than cases concerning issues like affirmative action, abortion or the death penalty. The disputes tend to be harder to follow: the legal arguments are more technical, the underlying stories less emotional. But these cases—which include shareholder suits, antitrust challenges to corporate mergers, patent disputes and efforts to reduce punitive-damage awards and prevent product-liability suits—are no less important. They involve billions of dollars, have huge consequences for the economy and can have a greater effect on people's daily lives than the often symbolic battles of the culture wars.

--Jeffrey Rose, Supreme Court Inc., N.Y. Times Mag. (Mar. 16, 2008).

A few recent and select culture-war cases aside, the Roberts Court has been widely heralded as business-friendly. See, e.g., Tony Mauro, Supreme Court Continues Pro-Business Stance, Legal Times (Feb. 21, 2008); Greg Stohr, Alito Champions Business Causes in First Full High-Court Term, Bloomberg (June 26, 2007) (referring to the 2006-07 Supreme Court term as "what may have been the most pro-business U.S. Supreme Court term in decades"); Robert Barnes & Carrie Johnson, Pro-Business Decision Hews to Pattern of Roberts Court, Wash. Post (June 22, 2007) (describing a case as another "victory for business in what has been a resoundingly successful year before the nation's highest court"). Observers have noted, for example, the U.S. Chamber of Commerce's impressive success at the Court in recent years through direct litigation and amicus filings. See, e.g., David L. Franklin, What Kind of Business-Friendly Court? Explaining the Chamber of Commerce's Success at the Roberts Court, 49 Santa Clara L. Rev. 1019 (2009) (arguing that the Court's recent decisions are less about "pro-business" or "pro-defendant" jurisprudence, and more about "a broadly shared skepticism among the justices about litigation as a mode of regulation).

With a few important exceptions—most notably preemption—the Court's most recent term (which wrapped up in June) confirmed this view with a series of pro-business decisions in the areas of antitrust, pleading standards, arbitration, and discrimination.

Restricting Private Antitrust Claims
The business community has witnessed a dramatic increase in antitrust suits filed in the United States in recent years. See, e.g, David Emanuelson, Parker Norman & Joseph Ostoyich, More of the Same: Growth in Private Antitrust Litigation and Cutbacks by the US Supreme Court, Global Competition Review: The Antitrust Review of the Americas 2009 (noting that "the number of federal court antitrust cases filed each year not only continues to grow, but is poised to reach levels not seen since the 1970s"). As a judicial counterbalance—intentional or not—the high court has issued a number of significant opinions that, together, indicate a trend toward restricting antitrust suits brought by private individuals. See Leegin Creative Leather Products v. PSKS Inc., 551 U.S. 877 (2007) (reversing an almost century-old rule that treated vertical resale price maintenance as per se illegal, and holding that vertical agreements are subject to the "rule of reason"); Credit Suisse Securities (USA) L.L.C. v. Billing, 551 U.S. 264 (2007) (holding that immunity can be implied when application of the antitrust laws might create a conflict with a competing federal regulatory regime); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (holding that in order to survive a Rule 12(b)(6) motion to dismiss a Sherman Act § 1 horizontal conspiracy claim, the plaintiff must plead facts that show it has a "plausible" claim; allegations that the defendants engaged in parallel conduct, coupled with "mere labels and conclusions" that the conduct resulted from "a conspiracy," is insufficient) (see also supra); Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co. Inc., 549 U.S. 312 (2007) (holding that in order to prove predatory bidding—the practice of bidding up input costs to drive rivals out of business—the plaintiff must satisfy the Brooke Group standard, which requires a plaintiff prove that the alleged predatory bidding led to below-cost pricing of the predator's outputs) (citing Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993) (holding that in a single-product predatory pricing case, a plaintiff must prove that (1) its rival's low prices were below an appropriate measure of its rival's costs and (2) its rival "had a reasonable prospect, or, under § 2 of the Sherman Act, a dangerous probability, of recouping its investment in below-cost prices")).

This term was no exception. In Pacific Bell Telephone Co. v. Linkline Communications, Inc., 129 S. Ct. 1109 (Feb. 25, 2009), the Court dealt a blow to plaintiffs asserting antitrust claims under a "price squeeze" theory. In Linkline, Internet service providers (ISPs) sued Pacific Bell, claiming that the company was charging them excessively high wholesale prices for digital subscriber line (DSL) access in comparison to the unreasonably low price it charged Pacific Bell's retail customers. The ISPs alleged that the scheme constituted "price squeezing" in violation of § 2 of the Sherman Act. A price squeeze occurs when a company holding a monopoly on the production of certain goods sets its wholesale prices higher than its retail prices, effectively preventing the wholesale customers from competing with it at the retail level. The district court denied Pacific Bell's motion to dismiss the case for failure to state a claim under Rule 12(b)(6) but granted its motion for an interlocutory appeal. Lower courts had previously found antitrust violations exist where wholesale prices are "too high" in relation to retail prices to allow firms purchasing from the integrated producer at wholesale to earn a "fair profit" through retail sales. Based on these authorities, the Ninth Circuit determined that the ISPs had stated a legitimate price squeezing claim.

Reversing in an opinion by Chief Justice Roberts, the Supreme Court held that vertically integrated producers are not subject to antitrust liability for so-called price squeezes unless they (1) have an "antitrust duty to deal" with their competitors at the wholesale level and (2) engaged in "predatory pricing" at the retail level of competition. The Court held that a "price squeezing" claim cannot be brought under § 2 of the Sherman Act when the defendant is under no duty to sell inputs to the plaintiff in the first place. Relying on its decision in Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, the Court held Pacific Bell only owed the ordinary antitrust duty not to engage in predatory pricing. See Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) (holding that a firm with no antitrust duty to deal with its competitors has no obligation to provide those competitors with a "sufficient" level of service). The Court then remanded, noting that the ISPs had already been allowed to file an amended complaint alleging an ordinary predatory pricing claim but that this claim "may not survive a motion to dismiss" because "if [Pacific Bell] can bankrupt plaintiffs by refusing to deal altogether, plaintiffs must demonstrate why the law prevents Pacific Bell from putting them out of business by pricing them out of the market."

As a practical matter, the Supreme Court's new standard in Linkline effectively forecloses price-squeeze antitrust claims except in the most extreme circumstances. But in the context of the larger trend of restricting private litigants' ability to bring antitrust claims, it exhibits the increasing difficulty antitrust claimants face at the courthouse. What remains to be seen is whether this judicial trend will have the effect of reducing the number of antitrust claims actually filed.

Favoring Arbitration (Mostly)
Mediation and arbitration have become increasingly popular vehicles for resolving disputes and avoiding costly litigation, a common objective for businesses. The issue of substantive and procedural enforceability of arbitration clauses has been winding through federal courts in recent years, which have witnessed increasing judicial acceptance—and enforcement—of arbitration as an alternative to litigation. These cases have generally announced a strong federal policy favoring arbitration. In this most recent term, the Court decided three significant arbitration cases of note to the business community—one of which calls into question this trend.

The most recent of these arbitration cases, Vaden v. Discover Bank, 129 S. Ct. 1262 (Mar. 9, 2009), was a case of strange bedfellows and, at least in the view of the dissenting chief justice, may restrict courts' ability to enforce arbitration agreements. Justice Ginsburg drafted the majority opinion, in which Justices Scalia, Souter, Kennedy, and Thomas joined. In Vaden,the Court more clearly defined the limits of federal jurisdiction under § 4 of the Federal Arbitration Act (FAA). Vaden was originally filed by Discover in Maryland state court to recover past-due charges from one of its credit cardholders. The cardholder counterclaimed alleging that Discover's finance charges, interest, and late fees violated state law. Although Discover's complaint and Vaden's pleading both invoked only state law, Discover urged that Vaden's state law counterclaims were preempted by federal law. Discover separately filed a petition in the U.S. District Court for the District of Maryland to compel arbitration of Vaden's counterclaims under § 4 of the Federal Arbitration Act based on an arbitration clause included in its cardholder agreement with Vaden. Although the FAA does not itself provide a basis for federal jurisdiction, Discover urged that its preemption defense to the cardholder's counterclaim was sufficient to invoke the district court's jurisdiction.

In a two-part holding, the Court first unanimously held in Vaden that a federal court may "look through" an FAA petition to compel arbitration to determine whether it is predicated on an action that "arises under" federal law. The second part of the Court's opinion, however, was decided 5-4, with Chief Justice Roberts filing an opinion in which Justices Stevens, Breyer, and Alito joined. The majority opined that federal-question jurisdiction depends on the contents of a well-pleaded complaint, and may not be predicated on actual or anticipated counterclaims, even when compulsory. Thus, a state law claim that is completely preempted by federal law may form the basis of federal court jurisdiction because it is recast as a federal question, but a state law counterclaim asserted by a defendant will not, even if the doctrine of complete preemption applies to the counterclaim. In dissent, Chief Justice Roberts complained that the majority's analysis "sharply restricts the ability of federal courts to enforce agreements to arbitrate."

In the second of the three arbitration opinions, the Court reaffirmed the strong federal policy favoring arbitration along a more predictable 5-4 split. In 14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (Apr. 1, 2009),the Court held that a collective bargaining agreement (CBA) that clearly and unmistakably requires union members to arbitrate claims is enforceable as a matter of federal law. Respondents were members of a union that had engaged in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (the RAB), a multiemployer bargaining association for the New York City real estate industry. The resulting CBA required union members to submit all employment discrimination claims to arbitration. Petitioner 14 Penn Plaza LLC was a member of the RAB that owns and operates the New York City office building where respondents worked. After 14 Penn Plaza, with the union's consent, engaged Spartan Security to provide licensed security guards to the lobby and entrances of the building, respondents were reassigned to jobs as porters and cleaners.

Respondents filed suit in federal district court alleging that their reassignment constituted age discrimination violating the Age Discrimination in Employment Act of 1967 (ADEA). Petitioners filed a motion to compel arbitration pursuant to §§ 3 and 4 of the FAA. The district court denied the motion, and the court of appeals affirmed, relying on Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), for the proposition that CBAs requiring arbitration of ADEA claims, which reflect rights created by Congress, are prohibited.

Reversing in a decision by Justice Thomas, the Court held that the parties collectively bargained in good faith and agreed that employment-related discrimination claims, including those brought under the ADEA, would be resolved in arbitration. The Court reasoned that this freely negotiated term easily qualified as a "conditio[n] of employment" subject to mandatory bargaining under the NLRA and held that the CBA's arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA's broad sweep, which it does not. The Court held that the Gardner-Denver line of cases did not control where the CBA's arbitration provision expressly covers both statutory and contractual discrimination claims. Unconvinced by the majority's efforts to distinguish Gardner-Denver,Justice Stevens and Justice Souter (joined by Justices Stevens, Ginsburg, and Breyer) dissented in separate opinions and argued that the prior cases required the conclusion that "a CBA cannot waive employees' rights to a judicial forum to enforce antidiscrimination statutes."

The last of the three arbitration cases further solidifies the Court's favor for arbitration provisions. In Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896 (May 4, 2009), the Court held in a 6-3 opinion by Justice Scalia that a nonparty to a written arbitration agreement may seek to stay the proceedings under § 3 of the FAA if state law allows that nonparty to enforce the agreement. In Carlisle,plaintiffs sought tax advice from Arthur Andersen regarding the sale of their company. Arthur Andersen in turn introduced plaintiffs to Bricolage Capital, who referred them to a law firm for legal advice. These advisers recommended a particular tax shelter, which the IRS subsequently determined was illegal. Although the IRS offered amnesty to taxpayers who use such arrangements, the plaintiffs alleged that their advisers failed to inform them of that option and ultimately entered into a settlement program paying the IRS all taxes, penalties, and interest owed.

Plaintiffs filed suit in federal district court against Bricolage and Arthur Andersen, alleging a variety of tort and malpractice claims. Defendants moved to stay the action under § 3 of the FAA, demanding plaintiffs arbitrate their claims under their investment agreements with Bricolage. The district court denied the motions and defendants filed an interlocutory appeal, which the Sixth Circuit dismissed for lack of jurisdiction.

Reversing, the Court first held that § 16 of the FAA permits an appeal from an order denying a motion for stay pending arbitration regardless of whether the litigant is in fact eligible for a stay, and that because the defendants asked for a stay pursuant to § 3, the appellate court had jurisdiction to review. The Court then rejected the Sixth Circuit's determination that nonparties to a written arbitration agreement are categorically ineligible for relief under the FAA. Rather, § 3 provides that stays are available if the claims are "referable to arbitration under an agreement in writing." The Court concluded that if "a written arbitration provision is made enforceable against (or for the benefit of) a third party under state contract law, the statute's terms are fulfilled."

Pleading Standards
While standards governing a civil litigant's pleadings may be less than stimulating reading for most, cases altering those standards often have the broadest impact on tort lawsuits affecting businesses. The Court's most notable decision on pleading standards this term was Ashcroft v. Iqbal, 129 S. Ct. 1937 (May 18, 2009), a 5-4 opinion written by Justice Kennedy elaborating on the oft-analyzed Twombly interpretation of Federal Rule of Civil Procedure 8(a)(2)'s requirement that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In Iqbal, the Court resolved any doubt about the scope of Twombly (an antitrust case) and held that the newly articulated standardapplies to all federal civil cases and all elements of the plaintiff's claims, including intent.

Under Twombly, while a plaintiff is not required to make "detailed factual allegations," he must do more than offer "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." The Court further held that in order to satisfy Rule 8(a)(2)'s requirement to "state a claim to relief that is plausible on its face," a claim must be accompanied by facts that "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." This "facial plausibility" cannot be supported by "mere conclusory statements," and a reviewing court is required to "draw on its experience and common sense" in its determination of plausibility.

As applied in Iqbal, the existence of "more likely explanations" for the defendants' conduct (i.e., valid policy reasons) left the Supreme Court to conclude that the discriminatory allegations did "not plausibly establish this [discriminatory] purpose." The Court also addressed the plaintiff's complaint that he had insufficient opportunity to conduct discovery prior to dismissal, and held that Rule 8's liberal notice pleading standard "does not however unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Therefore, "the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process."

Iqbal and Twombly together have the potential to dramatically impair civil plaintiffs' ability to survive a motion to dismiss in all substantive areas. Legislators have taken note—Senator Arlen Specter (D-Pa.) filed legislation on July 22, 2009, designed to return the civil pleading standard to its pre-Twombly status. In support of his legislation, Senator Specter complained on the floor of the Senate that "[t]he effect of the Court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries." Specter expressed the belief that private litigants' access to the courts is crucial where "the litigating resources of our executive-branch and administrative agencies [are] stretched thin, [and] the enforcement of federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants." Absent the passage of such legislation, however, these newly articulated pleading standards will remain an obstacle to asserting civil claims in federal court.

Reverse Discrimination
In probably the most significant discrimination case issued by the high court in decades, Ricci v. DeStefano, 129 S. Ct. 2658 (June 29, 2009), a sharply divided Court held that reverse discrimination is illegal under Title VII. The case arises in the context of testing employees for promotions. The city of New Haven, Connecticut, based future promotions of firefighters primarily on a written test that was administered by a consultant. A total of 59 out of 118 applicants passed, with only the top scorers eligible for promotion—including 17 whites, two Hispanics, and no African Americans. In an attempt to avoid a disparate impact claim, New Haven froze the promotions process to assess whether there was a test that appropriately evaluated candidates for promotions without the adverse impact on minorities. The white firefighters sued, alleging reverse discrimination (disparate treatment) and violations of the equal protection clause, and demanded the test scores be reinstated, with the promotions to follow. The city relied on the threat of the disparate impact claim as a defense to the disparate treatment claim. The district court granted summary judgment in the city's favor, and the Second Circuit affirmed. (Notably, Supreme Court appointee Sonya Sotomayor was on the panel of judges affirming the district court.)

Reversing, the Court avoided the equal protection issue and focused on the reverse discrimination claim. The Court held that (1) the decision to not honor the test results because the higher-scoring candidates were white violated Title VII and (2) the city's stated defense of a "good faith" belief that it would face disparate impact liability against the minority candidates did not excuse what otherwise would be prohibited disparate treatment discrimination. The Court required the defendant to show a "strong basis in evidence" to believe it would be subject to disparate impact liability "if it fails to take the race-conscious, discriminatory action," and held that the city's race-based rejection of the test results could not satisfy that standard. The Court held that applying "the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances." The Court did, however, suggest that it will allow for affirmative action plans and noted that the employer's "voluntary compliance efforts" are essential to the success of Title VII.

Justice Ginsberg, joined by Justices Souter, Breyer, and Stevens, issued a strongly worded dissent, arguing that the Court should have considered the historically pervasive race discrimination in fire departments and Title VII's approval of employer-driven remedial measures. She concluded with her belief that "[t]he Court's order and opinion, I anticipate, will not have staying power." In the meantime, the new standards announced in Ricci will make it more difficult for employers to disregard exam results once they are administered, even if they have a disproportionately negative impact on members of a given racial group. It also may provide some succor for employers who elect not to take action to reverse negative impact on racial minorities and avoid a discrimination suit, where that action would negatively impact other racial (and nonminority) groups.

In another discrimination case concerning disparate treatment, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (June 18, 2009), the Supreme Court held, in a 5-4 decision by Justice Thomas, that a plaintiff bringing an ADEA disparate treatment claim "must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action" and that "[t]he burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." This holding essentially means that so-called mixed-motives claims (claims in which the evidence indicates that the employer was motivated by both unlawful and lawful reasons when taking an adverse employment action) are not permitted under the ADEA because a lawful reason for the employment decision would preclude a "but-for" causation finding as to the unlawful reason. The Court's decision creates a distinction between disparate treatment claims brought under Title VII (a federal statute that prohibits discrimination based on, among other things, race, religion, and gender) in which mixed-motives claims are permitted and the ADEA, in which they are not.

In other discrimination cases of note this term, the Court held that (1) the "opposition clause" of Title VII's antiretaliation provision is broad enough to protect an employee who speaks out about discrimination when answering questions during an employer's internal investigation, even though the employee did not initiate the complaint (Crawford v. Metropolitan Government of Nashville and Davidson County, 129 S. Ct. 846 (Jan. 26, 2009)) and (2) an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) when it pays pension benefits calculated in part under an accrual rule—applied prior to the PDA's enactment—that gives less retirement credit for pregnancy than for medical leave generally (AT&T Corp. v. Hulteen, 129 S. Ct. 1962 (May 18, 2009)).

Due Process and Contributions
A modern cost of doing business is lobbying. Major industries often secure the services of government affair specialists who lobby state and federal legislatures on behalf of business interests. These lobbying efforts often spill over into judicial campaigns, where financial contributions are focused on candidates who are perceived as receptive to a particular position or judicial philosophy espoused by an industry or trade group. Such contributions may, however, do more harm to a litigant's interests, as illustrated by perhaps the most anticipated case of this term, Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252 (June 8, 2009).

In Caperton the Court held that due process required disqualification of a judge where one party to the litigation had given substantial campaign contributions to the judge while the party's case was pending. In Caperton, a coal company and its affiliates (Massey) were held liable for a variety of torts and were ordered to pay petitioners (Caperton) $50 million in damages. Massey's CEO supported Judge Benjamin in his bid to be elected to the West Virginia Supreme Court, contributing $3 million—an amount that exceeded the total amount spent by all other supporters. Benjamin won by fewer than 50,000 votes. Citing these contributions, Caperton moved to disqualify Justice Benjamin under the Due Process Clause and the West Virginia Code of Judicial Conduct. The West Virginia court then reversed the $50 million verdict. During the rehearing process, Justice Benjamin refused twice more to recuse himself, and the court once again reversed the jury verdict. Four months later, Justice Benjamin filed a concurring opinion, defending the court's opinion and his recusal decision.

In a 5-4 opinion authored by Justice Kennedy, the Court held that the Due Process Clause required the judge's recusal, emphasizing that a "fair trial in a fair tribunal is a basic requirement of due process." The Court noted that normally judicial recusal does not rise to a constitutional level but that "there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent." The Court's inquiry focused on "the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election." Applying that standard to the facts of this case, the Court held that Justice Benjamin should have recused himself.

Backing Away from Preemption
This term the Court revisited a subject that seemed to dominate the 2006-07 term: preemption. The doctrine is important to the business community because the unsettled issue of whether federal or state law will govern certain kinds of claims—such as products liability and consumer claims—creates substantial uncertainty and potential risks for businesses. The Court's pro-business reputation has not, however, been vindicated by its recent preemption decisions.

The Court issued several significant preemption opinions this term. Disappointing pro-business observers, in Altria Group, Inc. v. Good, 129 S. Ct. 538 (Dec. 15, 2008), the Court concluded that a state law prohibiting deceptive tobacco advertising is not preempted by federal law regulating cigarette advertising. The Court held that, while smokers' lawsuits are preempted by the Federal Cigarette Labeling and Advertising Act (Labeling Act) if they claim that the tobacco companies did not warn them in their marketing about how unhealthy cigarette smoking is, claims based on a broader legal obligation detached from claims about smoking and health—for example, a claim that the cigarette company's marketing was an attempt to deceive by misrepresenting or leaving out key facts about their products (fraud)—may proceed. Justice Thomas, joined by Chief Justice Roberts and Justices Scalia and Alito, dissented, arguing that the Court should adopt a clear test that expressly preempts any state law claim that imposes an obligation because of the effect of smoking upon health.

Then, in the much-anticipated Wyeth v. Levine, 129 S. Ct. 1187 (March 4, 2009), the Court held that federal approval of labels giving warnings about effects of drugs does not bar lawsuits under state law claiming inadequate warnings of a health risk. In an opinion by Justice Stevens, the Court first rejected the drug manufacturer's argument that by unilaterally changing its labeling of its drug to describe possible injuries that could occur from the negligent injection of the drug, it would have violated federal labeling regulations, and asserted that the manufacturer bears ultimate responsibility for the content of its labels at all times. The Court then rejected the drug manufacturer's argument that requiring it to comply with the state-law duty to provide a stronger warning would interfere with Congress's purpose of entrusting the FDA with drug labeling decisions. Rather, the Court reasoned that Congress did not intend to preempt state-law failure-to-warn actions when it created the FDA.

Finally, in Cuomo v. Clearing House Ass'n, L.L.C., 129 S. Ct. 2710 (June 29, 2009), the Court held that claims under state fair lending laws are not preempted by the National Banking Act and that a state attorney general may bring a judicial enforcement action to enforce state law against a national bank. In an opinion by Justice Scalia, the Court held that the Office of the Comptroller of the Currency's (OCC) regulation purporting to preempt state law enforcement is not a reasonable interpretation of the NBA, which provides that "[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts . . . or . . . directed by Congress." The Court argued that the term "visitorial powers" is limited "to a sovereign's supervisory powers over corporations," or "administrative oversight." The Court emphasized the distinction between supervisory powers, where the OCC has a monopoly and the NBA preempts state action, and law enforcement (such as bringing suit to enforce state law against a national bank), where federal agencies and the states have jurisdiction over national banks.