The thing about antitrust law is that it’s so understandable. Not in the sense that a human can easily understand antitrust law, particularly, just that it’s easy to understand where the people who violate it are coming from.1 This EU antitrust case against 13 banks for “colluding to prevent the lucrative global business of trading credit derivatives from moving onto regulated exchanges and away from markets controlled by the banks themselves,” for instance. Like, here you are in 2006 or whatever, and you’re a big bank, and you’ve built yourself a nice little business buying and selling credit default swaps. This generates information and that information is useful; it’s even more useful if you share it with your other CDS-trading friends. So you and your big-bank friends and your ISDA and your Markit get together to share trade data, just like those guys did under that buttonwood tree that one time. Once you’ve got trade data, for instance, you can make an index, and so you can trade index CDS, which means you can move from having a weird niche product to a macro credit product, and it is good. Also you can gouge customers because, y’know, it’s OTC and stuff.
Anyway one day an exchange comes to you and says “we’d like to take all your data and use it to massively undercut you on price and drive you out of this lucrative little business you got here, whaddaya say?” And so obviously you say no. Read more »
I’ve occasionally pointed out that one problem with the antitrust Libor lawsuits is that the allegations are mostly “the banks lied about Libor in order to trick each other about their creditworthiness and/or screw each other on some swaps trade,” so it’s hard to claim that they were all working together in a big antitrust conspiracy. But Judge Naomi Reice Buchwald, who mostly dismissed a batch of Libor lawsuits on Friday, has an even better objection, which is that even if it was a conspiracy, it was supposed to be a conspiracy:
[T]he process of setting LIBOR was never intended to be competitive. Rather, it was 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. Thus, even if we were to credit plaintiffs’ allegations that defendants subverted this cooperative process by conspiring to submit artificial estimates instead of estimates made in good faith, it would not follow that plaintiffs have suffered antitrust injury. Plaintiffs’ injury would have resulted from defendants’ misrepresentation, not from harm to competition.
As Judge Buchwald points out, in a delightfully sensible 161-page opinion, antitrust violations require a competitive market that can be subverted by a conspiracy. Here, there was no competitive market to subvert, and the injury that the plaintiffs suffered – manipulated Libors – could have come as easily from individual bank manipulation as from a grand conspiracy. Normal markets don’t work that way: if I just decide to charge you twice the going rate for my product, and no one else does, that tends not to work. If I submit twice the real rate for my Libor, and no one else does, that kind of still works, though I guess it works better if everyone joins in.
Given that “Too Big To Fail” has become the catchphrase of the financial crisis, is it any surprise that antitrust has become a particular fascination of enforcement? Of course not.
The U.S. government plans to reverse its antitrust policy and put more pressure on companies eyeing bigger market share through their dominance, the New York Times reported on its website.
Christine Varney, head of the U.S. Justice Department’s antitrust division, will announce the policy reversal in a speech on Monday at the Center for American Progress, the paper said, citing people who she consulted about the policy shift.
The changed policy will be a reversal from that of the Bush administration, during which not a single case against a dominant firm was lodged for violating the antimonopoly law, the paper said.
One of the assumptions that underlies the post-crisis world is that a wave of consolidation would be one of the end games that cleans up the broken eggs left behind. It will be interesting to see how the rubber of the new anti-merger philosophy meets the road. U.S. to make antitrust policy tougher: report [Reuters]