Antitrust Litigation: Recent Developments in Civil Business Claims, 2021

Barbara Sicalides
Megan Morley

Troutman Pepper Hamilton Sanders LLP
3000 Two Logan Square
Philadelphia, PA 19103-2799
[email protected]

§ 1.1 Introduction

Antitrust litigation in 2020 included a number of cases addressing the National Collegiate Athletic Association’s amateurism rules, the analysis that should apply to trade restraints imposed by large or arguably dominant companies and some of the more esoteric antitrust subjects, including the filed rate doctrine, the Foreign Antitrust Trade, merger analysis and application of antitrust to digital platforms. Each of these and other significant antitrust decisions is discussed in this Chapter.[1]

§ 1.2 The Sherman Act Developments, Section 1


The Sherman Act, under Section 1, prohibits “every contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.”[2] The main purpose of the section is to prevent conduct that unreasonably restrains competition.[3] Accordingly, the principal issues often are whether an agreement exists or has been pled adequately, whether a restraint should be examined under the rule of reason or the per se rule, and, if subject to the rule of reason, whether the restraints there are reasonable.

§ 1.2.1 Standing – Sonterra Capital Master Fund Ltd. v. UBS AG, 954 F.3d 529 (2d Cir. 2020)

In Sonterra Capital Master Fund Ltd. v. UBS AG,[4] the Second Circuit examined whether a group of investment funds had standing to bring Section 1 claims based on defendants’ alleged manipulation of the benchmark interest rates used to price financial derivatives in the Yen currency market. There, the court concluded that the plaintiffs had antitrust standing and reversed the district court’s dismissal in favor of the defendants.[5]

The plaintiffs in Sonterra Capital traded in three different types of Yen-based financial derivatives that were priced based on the Yen LIBOR and Euroyen LIBOR interest rates (“LIBOR rates”). These LIBOR rates are daily rates intended to reflect the interest rates at which banks offer to lend unsecured funds in the denomination of Japanese Yen. Plaintiffs alleged that defendant banks rigged the LIBOR rates in favor of their derivatives trading positions, which, in turn, negatively impacted plaintiffs. The complaint listed specific transactions where plaintiffs traded derivatives at unfavorable rates on dates when defendants purportedly manipulated LIBOR rates.[6]

The three types of Yen-based derivatives at issues were Yen FX forwards, interest rate swaps, and interest rate swaptions. According to the complaint, the LIBOR rates affect the value of the Yen FX forwards because it is used to take the cost of Yen for immediate delivery, and adjust it to account for the amount of interest paid or received on Yen deposits over the duration of the agreement. Interest rate swaps allow a party to exchange a fixed stream of interest rate payments for one based on a floating reference rate, such as the LIBOR rates. A Swaption gives the buyer the right to enter into an interest rate swap in the future. Plaintiffs allege that the LIBOR rates affect the value of a swaption because it determines the value of the interest rate swap underlying that swaption.[7]

The only issue on appeal was whether the plaintiffs sufficiently pled that they suffered harm as a result of defendants’ alleged manipulation of LIBOR rates, satisfying the injury in fact requirement of Article III standing.

To satisfy Article III standing, a plaintiff “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). … To plead injury, in fact, a plaintiff must allege ‘that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not …

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