By Justin Lacour
The application of antitrust laws to industries subject to
federal regulation has long been a difficult issue for
courts. A court must determine whether a regulatory
statute—either expressly or by implication—repeals the antitrust
laws. Although there have been differing approaches to
finding implied immunity, courts have held that there must be a
“clear repugnancy” or conflict between the regulatory system and
antitrust laws. The regulatory scheme must permit an activity
that the antitrust laws forbid.
In Credit Suisse Securities (USA) LLC v. Billing
(“Billing”), the Supreme Court considered the issue of whether
there was a clear repugnancy between antitrust and securities
laws. Although both the regulatory scheme and antitrust laws
prohibited the activity in question, the Court still found a
conflict between securities and antitrust laws. In
determining that antitrust laws were “irreconcilable” with the
securities laws the Court looked chiefly at the potential
difficulties for judges and juries in resolving such issues, as
opposed to the SEC, as well as applying a cost-benefit analysis for
antitrust enforcement.
This Note argues that a “clear repugnancy” does not exist when
both the SEC and antitrust laws prohibit the activity in
question. In reaching its finding of implied immunity,
Billing departed from the principles of traditional
immunity analysis to create a new, outcome-determinative test for
repugnancy. This approach—that a repugnancy exists when there
is the potential for conflicting outcomes from lower courts—is an
unprecedented broadening of the implied immunity doctrine.
For a conflict to exist, the two laws must produce “differing
results.” Billing is more properly understood as an
extension of the Court’s policy animus against private securities
actions rather than a continuance of earlier antitrust immunity
analysis. The altering of immunity analysis to further that
goal represents an unprecedented block on a party’s ability to get
to court that will be felt far beyond the world of underwriters and
IPOs.