The Clearing House (TCH) along with SIFMA and the FSR filed an amicus brief with the SCOTUS in support of petitioners in Bank of America v. Gelboim. The underlying litigation arose out of the process for setting USD LIBOR, and the petition raises the questions of whether: (i) antitrust claims (indeed, claims premised on categorical per se liability) can proceed even where the alleged harm does not flow from any restraint of trade or anticompetitive effect; and (ii) under Bell Atlantic Corp. v. Twombly, a plaintiff may plead an antitrust conspiracy based on alleged conduct that is equally indicative of parallel, non-conspiratorial activity. The Associations’ brief argues that (i) noncompetitive benchmarks, such as LIBOR, should not be treated as prices under antitrust laws, (ii) the Second Circuit expanded potential antitrust liability for standard setting programs by holding that mere participation in setting a benchmark was sufficient to infer participation in an antitrust conspiracy, and (iii) the combination of expanded price-fixing and conspiracy liability will chill efficiency-enhancing benchmarks and other standard-setting agreements.
You Might Also Be Interested In...
Amicus Briefs
BPI, Trades File Brief Supporting BofA Argument that National Law Preempts N.Y. Mortgage Escrow Rate Requirements
Amicus Briefs
BPI, Joint Trades File Amici Brief in Goldman Shareholder Class Action Case Before SCOTUS
Consumer Affairs
BPI Files Joint Amici Brief With Other Trades in California v. OCC Case on the OCC’s ‘Madden Fix’ Regulation
Amicus Briefs
BPI Submits Amicus Brief in Hymes v. Bank of America National Bank Act Preemption Case
More Posts by This Author
Bank Capital and Stress Testing
U.S. Bank Capital Levels: Aligning With or Exceeding Midpoint Estimates of Optimal
Central Bank Digital Currency
BPI’s Paige Pidano Paridon Testifies on CBDC Before House Subcommittee
Bank Activities and Structure
BPI Statement Before the U.S. House Financial Services Committee’s Subcommittee on Digital Assets, Financial Technology and Inclusion