CPI Cartel Column edited by Rosa Abrantes-Metz (NYU Stern School of Business)
A License to Collude by Sandeep Vaheesan* (Special Counsel, American Antitrust Institute)
Click here for a PDF version of this article.
* Special Counsel at the American Antitrust Institute. Thanks to Bert Foer and Randy Stutz for their valuable comments on this article.
INTRODUCTION
For better or for worse, Judge Naomi Reice Buchwald of the Southern District of New York was bound to receive unprecedented publicity in 2013. She was assigned the consolidated class actions brought by a diverse group of investors against many of the world’s leading banks over their alleged collusion to suppress the London Interbank Offer Rate (“LIBOR”). The plaintiffs include municipalities and individuals who bought financial instruments with payments indexed to the U.S. dollar LIBOR. In late March, Judge Buchwald dismissed two of the plaintiffs’ most serious claims, including allegations of antitrust violations.1 For now, her decision absolves many of the world’s leading financial institutions from billions of dollars or more in damages.
Judge Buchwald described the alleged conduct in the case as “straightforward.”2 In dismissing the plaintiffs’ antitrust claims, however, her opinion is anything but that. The court purportedly decided the defendants’ motion-to-dismiss on antitrust injury grounds.3 This doctrine is a standing inquiry that examines whether a suit brought by a firm against a competitor is consistent with the consumer orientation of the antitrust laws. In other words, the antitrust injury requirement exists to screen competitor suits that seek to use the antitrust laws for anticompetitive ends. It is ordinarily not relevant to consumer antitrust claims, like that of the plaintiffs, alleging collusive behavior by sellers. The court, however, treated the plaintiffs as though they were aggrieved competitors rather than injured consumers and dismissed their complaint on antitrust injury grounds. Although the Supreme Court has stressed that the standing inquiry is a limited one and separate from an analysis of the merits, the court went beyond the narrow inquiry involved in antitrust injury analysis and examined the merits of the plaintiffs’ claims. Specifically, the opinion examines the antitrust treatment of competitor collaborations, the distinction between express collusion and parallel conduct, and whether collusion must eliminate all competition to invite antitrust liability. By placing all these important and distinct issues under the heading of antitrust injury, Judge Buchwald’s opinion offers a meandering and fundamentally flawed antitrust analysis.
In its inapposite and improperly expansive antitrust injury analysis, the court presented multiple misstatements of the law – two of which will be examined in this article. The court held that a “cooperative endeavor”4 like LIBOR permits collusion even among parties that otherwise compete against each other. This contradicts a large body of precedent that holds that a cartel in the guise of a benign “joint venture” is still per se illegal. The court further suggested that the alleged collusion between the defendants is permissible because it did not eliminate all competition but rather shifted the focal point of competition. The Supreme Court has held that any interference with the competitive process through horizontal collusion is sufficient to warrant per se condemnation.
The court’s decision relieves the defendants of billions of dollars in potential antitrust liability for their alleged collusive suppression of LIBOR. The decision further threatens to have significant negative spillovers on antitrust law in general. If the court’s statements of the law on competitor collaboration and collusion are upheld on appeal, its decision could encourage the proliferation of cartels and other collusive arrangements, at the expense of American consumers.
ANTITRUST INJURY IS A STANDING INQUIRY RESERVED PRINCIPALLY FOR COMPETITOR SUITS AND DISTINCT FROM THE MERITS OF A CLAIM
Judge Buchwald granted the defendants’ motion-to-dismiss on the ground that the plaintiffs did not suffer an “antitrust injury.”5 The court accurately described antitrust injury as “injury ‘attributable to an anticompetitive aspect of the practice under scrutiny.’”6 It held that the plaintiffs’ failed to establish antitrust injury on multiple grounds. It found that LIBOR “is a cooperative endeavor”7 rather than one in which the participant banks compete. Furthermore, the court stated that the plaintiffs’ injury would have occurred even in the absence of collusion if “each defendant decided independently to misrepresent its borrowing costs to the [BBA].”8 It also noted that the “plaintiffs have not alleged that defendants’ suppression of LIBOR gave them an advantage over their competitors.”9
In articulating the meaning of antitrust injury, the Supreme Court stated in Atlantic Richfield Co. v. USA Petroleum Co. (hereafter ARCO) that “[t]he antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.”10 And while high prices are a common effect of antitrust violations and “assuredly one type of injury”11 for which private plaintiffs can seek relief, the Court has stated that they are “not the only form of injury remediable under [the antitrust laws].”12
The Supreme Court created the antitrust injury doctrine to prevent firms from bringing suits against more efficient rivals, stating that “[t]he antitrust laws were intended for ‘the protection of competition, not competitors.’”13 The antitrust injury doctrine “prevents losses that stem from competition from supporting suits by private plaintiffs for either damages or equitable relief.”14 In Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., the plaintiffs filed suit against the defendant for its acquisition of failing bowling alleys. The plaintiffs alleged that they lost profits because the acquired bowling alleys would have gone out of business but for the defendant’s conduct.15 The Supreme Court rejected the plaintiffs’ antitrust suit because they sought damages for “profits they would have realized had competition been reduced.”16 The plaintiffs suffered injury – in the form of lost profits – but consumers benefited from the continued competition in the marketplace. The Court in Cargill, Inc. v. Monfort of Colorado, Inc. rejected a similar merger challenge brought by a competitor seeking injunctive relief.17 The Court held that “the antitrust laws do not require the courts to protect small businesses from the loss of profits due to continued competition, but only against the loss of profits from practices forbidden by the antitrust laws.”18 It observed that granting firms the right to bring antitrust suits under these circumstances would “render illegal any decision by a firm to cut prices in order to increase market share.”19 The Court stated that, “the antitrust laws require no such perverse result.”20 At a functional level, the antitrust injury doctrine has “forced the courts to recognize that the claims of competitors – once thought to be the model antitrust plaintiffs – are frequently inconsistent with the most basic objectives of the antitrust law.”21
While businesses may bring antitrust suits against rivals for anticompetitive purposes and must show likely harm to consumers to survive a defendant’s motion-to-dismiss,22 consumers, as the protected class of the antitrust laws,23 ordinarily do not face this burden. “In general, the person who has purchased directly from those who have fixed prices at an artificially high level in violation of the antitrust laws is deemed to have suffered the antitrust injury within the meaning of § 4 of the Clayton Act.”24 In principle, consumer-plaintiffs could bring a case alleging antitrust injury from aggressive competition; but this seems unlikely as a practical matter. Consumers have no incentive to bring antitrust suits against businesses for engaging in procompetitive conduct. Procompetitive conduct, while it can hurt competitors, benefits consumers through lower prices, higher quality products, or both. Antitrust scholars, who have endorsed the antitrust injury requirement in screening what they perceive to be unmeritorious competitor suits, have recognized that the “antitrust injury requirement is no bar to actions brought by customers or suppliers seeking to recover for overcharges.”25
The court in dismissing the plaintiffs’ claims on antitrust injury grounds applied an inapposite doctrine. The plaintiffs had a buyer-seller relationship with the defendants: they purchased financial products tied to the LIBOR rate.26 Due to the collusive behavior of the defendants, the plaintiffs allege that they received reduced interest payments on financial products they purchased.27 Although the allegations involve financial products providing an income stream over time, the plaintiffs’ claims are functionally similar to an overcharge claim – they would have received a better deal as consumers but for the defendants’ alleged collusion. They are not like the plaintiffs in Brunswick, Cargill, and ARCO who claimed that they had or would earn lower profits due to continued or increased competition from the defendants. The court thus invoked distinguishable precedent when it cited the landmark cases on antitrust injury to dismiss the plaintiffs’ suit.
The court, in fact, unintentionally and implicitly acknowledged that the antitrust injury doctrine was not an appropriate basis for dismissing the plaintiffs’ claims. In its antitrust injury analysis, it failed to distinguish between a consumer suit alleging collusion and a competitor suit alleging exclusion. In granting the defendants’ motion-to-dismiss on antitrust injury grounds, the court cited, in part, that the “plaintiffs have not alleged that defendants’ suppression of LIBOR gave them an advantage over their competitors.”28Obtaining an unfair advantage over competitors is a hallmark of exclusionary conduct by businesses. The plaintiffs, however, did not allege that the defendants excluded rivals; rather, they alleged that the defendants colluded to lower the payments made to purchasers of financial products linked to LIBOR.29
Antitrust injury is a limited inquiry into whether a plaintiff has standing to bring an antitrust claim. It does not involve an assessment of the merits of a plaintiff’s claim.30 Courts ask a narrower question: whether the plaintiff pleads “injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful.”31 The Supreme Court in ARCO underscored the distinction between standing and liability when it denied the plaintiff standing to sue even though it had alleged a per se violation of the Sherman Act.32
The district court, however, eschewed the restricted focus of antitrust injury and analyzed issues that are at the heart of the plaintiffs’ claims. The court examined the propriety of competitor collaborations, the distinction between explicit collusion and parallel conduct, and whether collusion must eliminate competition entirely to invite antitrust liability.33 These are often critical issues in a Section 1 claim but they are distinct and separate from antitrust injury.
A “COOPERATIVE ENDEAVOR”34 DOES NOT EXCUSE HORIZONTAL PRICE FIXING
The court, in its improper examination of the merits, provided a grossly erroneous statement of the law on collaborations between horizontal competitors. It describes LIBOR as a “cooperative endeavor wherein otherwise-competing banks agreed to submit estimates of their borrowing costs to the BBA each day to facilitate the BBA’s calculation of an interest rate index.”35 As a factual matter, this cannot be disputed. U.S. dollar LIBOR is set on a daily basis using estimated – not actual – short-term borrowing costs for each of the sixteen financial institutions on the panel. Specifically, the rate is computed by taking a simple average of the middle two quartiles of submissions when ranked from highest to lowest.36 This long-standing cooperation is treated as a critical fact in resolving the plaintiffs’ antitrust claims that the defendants colluded to submit artificially low estimates. The opinion states “that collusion must have been anticompetitive, involving a failure of defendants to compete where they otherwise would have. Yet here, undoubtedly as distinguished from most antitrust scenarios, the alleged collusion occurred in an arena in which defendants never did and never were intended to compete.”37 The judge viewed the collaboration inherent in LIBOR as relieving the banks of the obligation, at least in part, to compete against one another.
Judge Buchwald’s emphasis on the collaborative nature of LIBOR contradicts one of the fundamental principles and purposes of the antitrust laws. Competitors are not permitted to enter into cooperative ventures with each other and assert that this collaboration frees them from the obligation to compete. After all, cartels are nothing if not “cooperative endeavor[s].”38 Members of a cartel agree to refrain from competition and raise prices to increase their collective profits. The Supreme Court has held these types of collaborative activities to be per se illegal since the early days of the Sherman Act,39 and participants have not been able to assert as a defense that they “never did and never were intended to compete.”40 In the 2004 decision Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, the Supreme Court described collusion as “the supreme evil of antitrust.”41
Contrary to the de facto legality accorded to the defendants’ conduct by the district court, horizontal collusion of this nature is generally treated as per se illegal. If an agreement is shown to have existed through direct or circumstantial evidence, companies are not given the opportunity to introduce business justifications. The companies involved in this type of “cooperative endeavor”42 face private damages actions, and the implicated firms and individuals are frequently also subject to criminal prosecution by the Department of Justice that can result in sizeable fines and prison sentences.43
Not all competitor collaborations are, of course, cartels and subject to per se illegality and criminal penalties. Some competitor collaborations can give rise to procompetitive efficiencies. For example, horizontal rivals may pool assets to combine complementary capabilities or achieve economies of scale.
To avoid per se illegality and criminal enforcement, cartels cannot simply describe themselves as “joint ventures” and receive more lenient antitrust treatment. The Supreme Court has rejected the notion that “agreements between legally separate persons and companies to suppress competition among themselves and others can be justified by labeling the project a ‘joint venture.’”44 Descriptions such as joint ventures are not sufficient to escape illegality – the Supreme Court has noted that “[p]erhaps every agreement and combination to restrain trade could be so labeled.”45 And a history of anticompetitive collaboration is also no defense. In fact, the Supreme Court has stated that “[a]bsence of actual competition may simply be a manifestation of the anticompetitive agreement itself.”46
Under Supreme Court precedent, joint ventures that “hold the promise of increasing a firm’s efficiency and enabling it to compete more effectively”47 can avoid per se treatment. The Department of Justice and Federal Trade Commission have stated in their Competitor Collaboration Guidelines that “[t]he mere coordination of decisions on price, output, customers, territories, and the like is not integration, and cost savings without integration are not a basis for avoiding per se condemnation.”48 Competitors must “engage in an efficiency-enhancing integration [that] typically combine[s], by contract or otherwise, significant capital, technology, or other complementary assets to achieve procompetitive benefits that the participants could not achieve separately.”49 Even for these types of collaborations, the Supreme Court has held that their pricing decisions are subject to rule of reason analysis,50 and not the de facto legality that Judge Buchwald conferred.
LIBOR itself appears to be nothing more than a “coordination of decisions on price.”51 The banks did not integrate economic assets. The banks remained independent and competed against each other in many markets, including the market for financial instruments whose payments are tied to LIBOR. They participated in a process to establish one of the most closely followed short-term interest rates in the world. This type of collaboration is not an integration that permits the parties involved to collude. Although the court drew an analogy between the defendants’ conduct and a noted Supreme Court decision on cooperation between competitors,52 the joint-setting of prices is quite different from the collaborative setting of safety standards in Allied Tube & Conduit Corp. v. Indian Head, Inc.53 The competitor collaboration in Allied Tube brought together firms that had complementary technological and manufacturing capabilities and had significant procompetitive potential.54 And even there, the Court held that the collaboration would be subject to rule of reason treatment to ensure that participants did not abuse a forum of beneficial collaboration for anticompetitive ends.55 The price-setting involved in LIBOR, in contrast, has no comparable potential to improve the competitive process and benefit consumers.
REDUCING OR ELIMINATING ANY FORM OF HORIZONTAL COMPETITION THROUGH COLLUSION IS A PER SE VIOLATION OF THE SHERMAN ACT
In its ostensible antitrust injury analysis, the court also implied that collusion is permissible so long as it does not eliminate all competition. Judge Buchwald recognized that the alleged manipulation of LIBOR affected the rates on trillions of dollars of financial instruments. She, however, ruled that this alone did not give rise to an antitrust violation. The court stated that though, “a change in LIBOR may have altered the baseline from which market actors competed to set the price of LIBOR-based instruments, competition proceeded unabated and plaintiffs have alleged no sense in which it was displaced.”56 The opinion stressed the continued role of competitive forces and stated that “the fact remains that competition in the interbank lending market and in the market for LIBOR-based financial instruments proceeded unimpaired.”57 It also distinguished the plaintiffs’ allegations from cases that involved price fixing with list prices or indexes. The Court stated that the defendants’ manipulation of LIBOR did not fix a “range within which . . . sales would be made”58 or establish a “uniform charge.”59
In addition to drawing spurious distinctions between the plaintiffs’ allegations and their proffered precedents, the court disregarded an extensive body of case law on horizontal collusion. In a landmark decision on collusive practices, the Supreme Court did not draw distinctions between horizontal arrangements that fixed prices versus those that “raised, lowered, or stabilized prices.”60 It held that “[u]nder the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity . . . is illegal per se.”61 Price fixing does not have to result in prices that are “uniform and inflexible”62 because the term “has no such limited meaning.”63 The Court reiterated the importance of price-setting through free market forces in a decision on information sharing between competitors. It stated, “[p]rice is too critical, too sensitive to allow it to be used even in an informal manner to restrain competition.”64 The Court has even held that agreements on maximum prices between horizontal competitors, which may appear neutral or even beneficial to consumers, are per se illegal.65
The courts have categorically condemned naked collusive efforts to tamper with any aspect of horizontal competition, whether it pertains to price or non-price terms. The Supreme Court deemed an agreement between beer wholesalers not to offer interest-free credit to retailers a per se violation.66 The Court treated this agreement as analogous to not offering customers price discounts.67 The lower courts have similarly treated horizontal agreements to restrain or limit one dimension of competition as per se illegal. The Second Circuit, which covers the Southern District of New York, has condemned a market allocation scheme between competitors using base point pricing – whereby all prices are tied to a single locational price – as per se illegal.68 Other appellate courts have held that the creation of standards to limit price competition,69 and the use of list prices as a starting point for all negotiations with customers,70 are also per se illegal.
The defendants did not eliminate all competition in the market for LIBOR-based financial instruments. They, however, did change the “baseline from which market actors competed.”71 This is indistinguishable from the “raising, depressing, fixing, pegging, or stabilizing”72 of prices that the Supreme Court has condemned as per se illegal. The fact that all competition between the participant banks was not eliminated is of no moment under the antitrust laws. The collusive effort to suppress LIBOR is enough to trigger the per se rule.
THE COURT’S RELAXED TREATMENT OF HORIZONTAL COLLUSION WOULD HAVE PERNICIOUS EFFECTS ON CONSUMERS IN ALL MARKETS
If Judge Buchwald’s statement of the law stands on appeal, it would allow the defendant-banks to escape billions of dollars in potential liability for allegedly anticompetitive behavior and have highly damaging effects on consumers throughout the U.S. economy. The court’s appears to state that competitors are permitted to collude provided it is under the cover of a collaborative venture. It further suggests that collusion may be permissible as long as it preserves some degree of competition between the participants.
The court, in absolving the defendants of antitrust liability because LIBOR is a “cooperative endeavor,”73 may encourage other businesses to establish collaborative ventures as a cover for collusion. Under the court’s reasoning, participants in these ventures could assert that they are “in an arena in which [they] . . . never were intended to compete”74 and therefore cannot be held liable for collusion under the Sherman Act. If this statement of the law stands, companies that are intent on colluding will have a strong incentive to establish ventures like LIBOR to coordinate cartel activity. The court’s decision prizes form over substance and permits collusion provided it has the “correct” structure.
The court’s statement that collusion is permitted if it merely alters the baseline of competition also creates greater scope for legalized cartel behavior. The nature of most collusion is that competition is reduced but not entirely eliminated. For example, in a price-fixing agreement, companies may try to undercut the collusive price or offer more favorable non-price terms to capture sales and increase profits in the short run. Well-established precedent holds that the failure to eliminate all competition is no defense. Under Judge Buchwald’s decision, however, the failure to eliminate all competition would be a defense to collusion. Unless parties went beyond “alter[ing] the baseline” competition, they would arguably not be liable under Judge Buchwald’s standard.
As a practical matter, the court’s statements of the law, if uncorrected, may mean de facto legality for most forms of cartel conduct. Few collusive arrangements extinguish all forms of competition between the participations. In the vast majority of cases, collusion reduces rather than eliminates competition between horizontal rivals. Even if cartelists aspired to go further and suspend all dimensions of competition successfully, it is unlikely they could. Cartel agreements, such as price fixing or market division, have been treated as against public policy and unenforceable as contracts in court since even before the enactment of the Sherman Act in 1890.75
CONCLUSION
For now, Judge Buchwald has delivered a major victory for some of the leading banks in the world. She dismissed the claims of multiple classes of plaintiffs that alleged that these banks had colluded to suppress LIBOR – one of the most closely watched short-term interest rates. Judge Buchwald’s decision offers a fundamentally flawed reading and application of the antitrust laws. Judge Buchwald ostensibly decided the defendants’ motion-to-dismiss on antitrust injury grounds. The antitrust injury doctrine, which is intended to winnow anticompetitive lawsuits by competitors, was incorrectly used to dismiss a suit brought by a group of aggrieved consumers. Moreover, the court’s antitrust injury analysis was unduly expansive in analyzing the merits of the allegations. Rather than confining itself to the standing inquiry that comprises the antitrust injury doctrine, the court examined merits’ issues such as the permissibility of horizontal collaboration and whether collusion must eliminate all competition to violate the antitrust laws. By placing all these important and distinct concepts under the category of antitrust injury, Judge Buchwald’s opinion offers a confused and misguided analysis of the plaintiffs’ antitrust claims.
The court in its incorrectly broad antitrust injury analysis offered two particularly problematic statements of law. It valued form over function and held that a collaborative venture like LIBOR permits collusion even among parties that otherwise compete against each other. This contradicts a large body of precedent that holds that collusion cloaked in a “joint venture” is still per se illegal. The court further insinuates that the alleged collusion between the defendants is permissible on the basis that it did not eliminate all competition but instead shifted the focal point of competition. The Supreme Court has rejected the distinction between eliminating and reducing competition and held that the “raising, depressing, fixing, pegging, or stabilizing”76 of prices through collusive methods is per se illegal.
The adverse effects of Judge Buchwald’s statements of the law, if left uncorrected on appeal, may be significant. The court created an effective safe harbor for collusion in the form of a “cooperative endeavor”77 and suggested that collusion must eliminate all competition to violate the antitrust laws. In doing so, it exonerates many of the world’s largest financial institutions from billions of dollars in potential antitrust liability for their alleged collusive suppression of the U.S. dollar LIBOR. It, furthermore, threatens to promote the creation of cartels and other anticompetitive arrangements and inflict grave economic injury on consumers.
1. 2. In re LIBOR-Based Financial Instruments Antitrust Litig., 2013 U.S. Dist. LEXIS 45909 (S.D.N.Y. 2013) (hereinafter “Opinion”).
3. Opinion at 26.
4. Id. at 51.
5. Id. at 58.
6. Id. at 51.
7. Id. at 52.
8. Id. at 58.
9. Id. at 65.
10. Id. at 74.
11. 495 U.S. 328, 344 (1990).
12. Blue Shield of Virginia v. McCready, 457 U.S. 465, 482 (1982)
13. Id. at 483.
14. ARCO, 495 U.S. at 338 (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962).
15. Id. at 343.
16. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 480-81 (1977).
17. Id. at 488 (emphasis added).
18. 479 U.S. 104 (1986).
19. Id. at 116.
20. Id.
21. Id.
22. Jonathan M. Jacobson & Tracy Greer, Twenty-One Years of Antitrust Injury: Down the Alley with Brunswick v. Pueblo Bowl-O-Mat, 66 ANTITRUST L.J. 273, 285 (1998) (emphasis added).
23. See Atl. Exposition Servs. Inc. v. SMG, 262 F. App’x 449, 451 (3d Cir. 2008) (quoting Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 641 (3d Cir. 1996)), cert. denied sub nom. Casper v. SMG, 77 U.S.L.W. 3198 (Oct. 6, 2008). (“We must consider competition from ‘the viewpoint of the consumer,’ looking at ‘the prices, quantity or quality of goods or services’ in the relevant geographic market for a product to determine if there has been an injury to competition.”).
24. The Supreme Court has described the antitrust laws as a “consumer welfare prescription.” Reiter v. Sonotone Corp., 442 U.S. 330, 343 (1979).
25. New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1079 (2d Cir. 1988). 26. Edward A. Snyder & Thomas E. Kauper, Misuse of the Antitrust Laws: The Com
petitor Plaintiff, 90 MICH. L. REV. 551, 577 (1991).
27. Opinion at 32.
28. Id.
29. Id. at 74 (emphasis added).
30. Id. at 32.
31. See Doctor’s Hospital of Jefferson, Inc. v. Southeast Medical Alliance, Inc., 123 F.3d 301, 305 (5th Cir. 1997) (“DHJ is therefore correct in observing that antitrust injury for standing purposes should be viewed from the perspective of the plaintiff's position in the marketplace, not from the merits-related perspective of the impact of a defendant's conduct on overall competition. So viewed, DHJ's alleged losses and competitive disadvantage because of its exclusion from SMA fall easily within the conceptual bounds of antitrust injury, whatever the ultimate merits of its case.”).
32. Brunswick, 429 U.S. at 489.
33. ARCO, 495 U.S. at 341-42.
34. Opinion at 58, 65, 68.
35. Id. at 58.
36. Id.
37. See id. at 30 (“After receiving quotes from each bank on a given panel, Thomson Reuters determines the LIBOR for that day (the ‘LIBOR fix’) by ranking the quotes for a given maturity in descending order and calculating the arithmetic mean of the middle two quartiles. For example, suppose that on a particular day, the banks on the Contributor Panel for U.S. dollars submitted the following quotes for the three-month maturity (‘three-month USD LIBOR’): 4.0%, 3.9%, 3.9%, 3.9%, 3.8%, 3.8%, 3.7%, 3.6%, 3.5%, 3.5%, 3.4%, 3.3%, 3.3%, 3.1%, 3.0%, and 3.0%. The quotes in the middle two quartiles would be: 3.8%, 3.8%, 3.7%, 3.6%, 3.5%, 3.5%, 3.4%, and 3.3%. The arithmetic mean of these quotes, 3.575%, would be the LIBOR fix for that day.”).
38. Id. at 59.
39. Id. at 58.
40. United States v. Trans-Missouri Freight Assoc., 166 U.S. 290 (1897); United States v. Joint Traffic Assoc., 171 U.S. 505 (1898); United States v. Addyston Pipe & Steel Co., 175 U.S. 211 (1899).
41. Id.
42. 540 U.S. 398, 408 (2004).
43. Opinion at 58.
44. Thomas O. Barnett, Assistant Attorney General Antitrust Division U.S. Dep’t of Justice, Criminal Enforcement of Antitrust Laws: The U.S. Model, Presentation at the Fordham Competition Law Institute’s Annual Conference on International Antitrust Law and Policy 2 (Sept. 14, 2006). 45. Timken Roller Bearing Co. v. United States, 341 U.S. 593, 598 (1951).
46. Id.
47. American Needle Inc. v. National Football League, 130 S. Ct. 2201, 2213-14 (2010).
48. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 (1984)
49. FED. TRADE COMM’N & U.S. DEP’T OF JUSTICE, ANTITRUST GUIDELINES FOR COLLABORATIONS AMONG COMPETITORS § 3.2 (Apr. 2000) (hereinafter “COMPETITOR COLLABORATION GUIDELINES”).
50. Id.
51. Texaco Inc. v. Dagher, 547 U.S. 1, 7 (2006).
52. COMPETITOR COLLABORATION GUIDELINES at § 3.2.
53. Opinion at 74.
54. 486 U.S. 492 (1988).
55. Id. at 501 (1988) (“When . . . private associations promulgate safety standards based on the merits of objective expert judgments and through procedures that prevent the standard-setting process from being biased by members with economic interests in stifling production competition, . . ., those private standards can have significant procompetitive advantages.”).
56. Id.
57. Opinion at 68-69.
58. Id. at 71.
59. Id. at 76.
60. Id. at 77.
61. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 221 (1940).
62. Id. at 223.
63. Id. at 222
64. Id.
65. United States v. Container Corp. of Am., 393 U.S. 333, 338 (1969).
66. Arizona v. Maricopa County Med. Soc’y, 457 U.S. 332 (1982).
67. Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 649 (1980) (per curiam).
68. Id.
69. United States v. Koppers Co., 652 F.2d 290 (2d Cir. 1981).
70. United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174, 186-87 (3d Cir. 1970).
71. Plymouth Dealers’ Ass’n v. United States, 279 F.2d 128, 132 (9th Cir. 1960).
72. Opinion at 69.
73. Socony-Vacuum, 310 U.S. at 223.
74. Opinion at 58.
75. Id. at 59.
76. Herbert Hovenkamp, The Sherman Act and the Classical Theory of Competition, 74 IOWA L. REV. 1019, 1024-25 (1989).
77. Socony-Vacuum, 310 U.S. at 223.
78. Opinion at 58.