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.
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