This Article’s review of lower court decisions from the decade since the Supreme Court decided Credit Suisse shows that Trinko and Credit Suisse have had a surprisingly limited impact in many regulated markets. While defendants in a range of cases have relied on Trinko and Credit Suisse to seek antitrust immunity or argue that regulation is sufficient to protect competition, outside the financial sector courts have applied those cases narrowly to preserve antitrust’s role. The story is different for cases involving the financial markets, however. There, courts have been more willing to find implied antitrust immunity or that regulation otherwise supplants antitrust. As a result, it appears that the task of confronting heightened concentration and reduced competition in the financial sector increasingly will fall to the sector regulators, especially the U.S. Securities & Exchange Commission (SEC) and the U.S. Commodity Futures Trading Commission (CFTC).
Financial Regulation in the (Receding) Shadow of Antitrust
Volume 91, No. 3, Spring 2019