Credit Suisse Securities (USA) LLC v. Billing

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

CREDIT SUISSE SECURITIES (USA) LLC, FKA CREDIT
SUISSE FIRST BOSTON LLC, ET AL. v. BILLING ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

No. 05–1157. Argued March 27, 2007—Decided June 18, 2007
Respondent investors filed suit, alleging that petitioner investment
banks, acting as underwriters, violated antitrust laws when they
formed syndicates to help execute initial public offerings (IPOs) for
several hundred technology-related companies. Respondents claim
that the underwriters unlawfully agreed that they would not sell
newly issued securities to a buyer unless the buyer committed (1) to
buy additional shares of that security later at escalating prices
(known as “laddering”), (2) to pay unusually high commissions on
subsequent security purchases from the underwriters, or (3) to pur
chase from the underwriters other less desirable securities (known as
“tying”). The underwriters moved to dismiss, claiming that federal
securities law impliedly precludes application of antitrust laws to the
conduct in question. The District Court dismissed the complaints,
but the Second Circuit reversed.
Held: The securities law implicitly precludes the application of the anti
trust laws to the conduct alleged in this case. Pp. 4–20.
(a) Where regulatory statutes are silent in respect to antitrust,
courts must determine whether, and in what respects, they implicitly
preclude the antitrust laws’ application. Taken together, Silver v.
New York Stock Exchange, 373 U. S. 341; Gordon v. New York Stock
Exchange, Inc., 422 U. S. 659; and United States v. National Assn. of
Securities Dealers, Inc., 422 U. S. 694 (NASD) make clear that a court
deciding this preclusion issue is deciding whether, given context and
likely consequences, there is a “clear repugnancy” between the secu
rities law and the antitrust complaint, i.e., whether the two are
“clearly incompatible.” Moreover, Gordon and NASD, in finding suf
ficient incompatibility to warrant an implication of preclusion,
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Syllabus

treated as critical: (1) the existence of regulatory authority under the
securities law to supervise the activities in question; (2) evidence that
the responsible regulatory entities exercise that authority; and (3) a
resulting risk that the securities and antitrust laws, if both applica
ble, would produce conflicting guidance, requirements, duties, privi
leges, or standards of conduct. In addition, (4) in Gordon and NASD
the possible conflict affected practices that lie squarely within an
area of financial market activity that securities law seeks to regulate.
Pp. 4–10.
(b) Several considerations—the underwriters’ efforts jointly to
promote and sell newly issued securities is central to the proper func
tioning of well-regulated capital markets; the law grants the SEC au
thority to supervise such activities; and the SEC has continuously ex
ercised its legal authority to regulate this type of conduct—show that
the first, second, and fourth conditions are satisfied in this case. This
leaves the third condition: whether there is a conflict rising to the
level of incompatibility. Pp. 10–12.
(c) The complaints here can be read as attacking the manner in
which the underwriters jointly seek to collect “excessive” commissions
through the practices of laddering, tying, and collecting excessive
commissions, which according to respondents the SEC itself has al
ready disapproved and, in all likelihood, will not approve in the fore
seeable future. Nonetheless, certain considerations, taken together,
lead to the conclusion that securities law and antitrust law are
clearly incompatible in this context. Pp. 12–19.
(1) First, to permit antitrust actions such as this threatens seri
ous securities-related harm. For one thing, a fine, complex, detailed
line separates activity that the SEC permits or encourages from ac
tivity that it forbids. And the SEC has the expertise to distinguish
what is forbidden from what is allowed. For another thing, reason
able but contradictory inferences may be drawn from overlapping
evidence that shows both unlawful antitrust activity and lawful secu
rities marketing activity. Further, there is a serious risk that anti
trust courts, with different nonexpert judges and different nonexpert
juries, will produce inconsistent results. Together these factors mean
there is no practical way to confine antitrust suits so that they chal
lenge only the kind of activity the investors seek to target, which is
presently unlawful and will likely remain unlawful under the securi
ties law. Rather, these considerations suggest that antitrust courts
are likely to make unusually serious mistakes in this respect. And
that threat means that underwriters must act to avoid not simply
conduct that the securities law forbids, but also joint conduct that the
securities law permits or encourages. Thus, allowing an antitrust
lawsuit would threaten serious harm to the efficient functioning of
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Syllabus

the securities market. Pp. 14–17.
(2) Second, any enforcement-related need for an antitrust lawsuit
is unusually small. For one thing, the SEC actively enforces the
rules and regulations that forbid the conduct in question. For an
other, investors harmed by underwriters’ unlawful practices may sue
and obtain damages under the securities law. Finally, the fact that
the SEC is itself required to take account of competitive considera
tions when it creates securities-related policy and embodies it in
rules and regulations makes it somewhat less necessary to rely on
antitrust actions to address anticompetitive behavior. Pp. 17–18.
(3) In sum, an antitrust action in this context is accompanied by
a substantial risk of injury to the securities markets and by a dimin
ished need for antitrust enforcement to address anticompetitive con
duct. Together these considerations indicate a serious conflict be
tween application of the antitrust laws and proper enforcement of the
securities law. The Solicitor General’s proposal to avoid this conflict
does not convincingly address these concerns. Pp. 18–19.
426 F. 3d 130, reversed.

BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, SOUTER, GINSBURG, and ALITO, JJ., joined. STEVENS,
J., filed an opinion concurring in the judgment. THOMAS, J., filed a dis
senting opinion. KENNEDY, J., took no part in the consideration or deci
sion of the case.
 Cite as: 551 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1157
_________________

CREDIT SUISSE SECURITIES (USA) LLC, FKA CREDIT

SUISSE FIRST BOSTON LLC, ET AL., PETITIONERS v.

GLEN BILLING ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 18, 2007]

JUSTICE BREYER delivered the opinion of the Court.
A group of buyers of newly issued securities have filed
an antitrust lawsuit against underwriting firms that
market and distribute those issues. The buyers claim that
the underwriters unlawfully agreed with one another that
they would not sell shares of a popular new issue to a
buyer unless that buyer committed (1) to buy additional
shares of that security later at escalating prices (a practice
called “laddering”), (2) to pay unusually high commissions
on subsequent security purchases from the underwriters,
or (3) to purchase from the underwriters other less desir
able securities (a practice called “tying”). The question
before us is whether there is a “ ‘plain repugnancy’ ” be
tween these antitrust claims and the federal securities
law. See Gordon v. New York Stock Exchange, Inc., 422.
U. S. 659, 682 (1975) (quoting United States v. Philadel
phia Nat. Bank, 374 U. S. 321, 350–351 (1963)). We con
clude that there is. Consequently we must interpret the
securities laws as implicitly precluding the application of
the antitrust laws to the conduct alleged in this case. See
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Opinion of the Court

422 U. S., at 682, 689, 691; see also United States v. Na
tional Assn. of Securities Dealers, Inc., 422 U. S. 694
(1975) (NASD); Silver v. New York Stock Exchange, 373 U.
S. 341 (1963).
I

A

The underwriting practices at issue take place during
the course of an initial public offering (IPO) of shares in a
company. An IPO presents an opportunity to raise capital
for a new enterprise by selling shares to the investing
public. A group of underwriters will typically form a
syndicate to help market the shares. The syndicate will
investigate and estimate likely market demand for the
shares at various prices. It will then recommend to the
firm a price and the number of shares it believes the firm
should offer. Ultimately, the syndicate will promise to buy
from the firm all the newly issued shares on a specified
date at a fixed, agreed-upon price, which price the syndi
cate will then charge investors when it resells the shares.
When the syndicate buys the shares from the issuing firm,
however, the firm gives the syndicate a price discount,
which amounts to the syndicate’s commission. See gener
ally L. Loss & J. Seligman, Fundamentals of Securities
Regulation 66–72 (4th ed. 2001).
At the heart of the syndicate’s IPO marketing activity
lie its efforts to determine suitable initial share prices and
quantities. At first, the syndicate makes a preliminary
estimate that it submits in a registration statement to the
Securities and Exchange Commission (SEC). It then
conducts a “road show” during which syndicate underwrit
ers and representatives of the offering firm meet potential
investors and engage in a process that the industry calls
“book building.” During this time, the underwriters and
firm representatives present information to investors
about the company and the stock. And they attempt to
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Opinion of the Court

gauge the strength of the investors’ interest in purchasing
the stock. For this purpose, underwriters might well ask
the investors how their interest would vary depending
upon price and the number of shares that are offered.
They will learn, among other things, which investors
might buy shares, in what quantities, at what prices, and
for how long each is likely to hold purchased shares before
selling them to others.
On the basis of this kind of information, the members of
the underwriting syndicate work out final arrangements
with the issuing firm, fixing the price per share and speci
fying the number of shares for which the underwriters will
be jointly responsible. As we have said, after buying the
shares at a discounted price, the syndicate resells the
shares to investors at the fixed price, in effect earning its
commission in the process.
B
In January 2002, respondents, a group of 60 investors,
filed two antitrust class-action lawsuits against the peti
tioners, 10 leading investment banks. They sought relief
under §1 of the Sherman Act, ch. 647, 26 Stat. 209, as
amended, 15 U. S. C. §1; §2(c) of the Clayton Act, 38 Stat.
730, as amended by the Robinson-Patman Act, 49 Stat.
1527, 15 U. S. C. §13(c); and state antitrust laws. App. 1,
14. The investors stated that between March 1997 and
December 2000 the banks had acted as underwriters,
forming syndicates that helped execute the IPOs of several
hundred technology-related companies. Id., at 22. Re
spondents’ antitrust complaints allege that the underwrit
ers “abused the . . . practice of combining into underwrit
ing syndicates” by agreeing among themselves to impose
harmful conditions upon potential investors—conditions
that the investors apparently were willing to accept in
order to obtain an allocation of new shares that were in
high demand. Id., at 12.
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These conditions, according to respondents, consist of a
requirement that the investors pay “additional anticom
petitive charges” over and above the agreed-upon IPO
share price plus underwriting commission. In particular,
these additional charges took the form of (1) investor
promises “to place bids . . . in the aftermarket at prices
above the IPO price” (i.e., “laddering” agreements); (2)
investor “commitments to purchase other, less attractive
securities” (i.e., “tying” arrangements); and (3) investor
payment of “non-competitively determined” (i.e., excessive)
“commissions,” including the “purchas[e] of an issuer’s
shares in follow-up or ‘secondary’ public offerings (for
which the underwriters would earn underwriting dis
counts).” Id., at 12–13. The complaint added that the
underwriters’ agreement to engage in some or all of these
practices artificially inflated the share prices of the securi
ties in question. Id., at 32.
The underwriters moved to dismiss the investors’ com
plaints on the ground that federal securities law impliedly
precludes application of antitrust laws to the conduct in
question. (The antitrust laws at issue include the com
mercial bribery provisions of the Robinson-Patman Act.)
The District Court agreed with petitioners and dismissed
the complaints against them. See In re Initial Public
Offering Antitrust Litigation, 287 F. Supp. 2d 497, 524–
525 (SDNY 2003) (IPO Antitrust). The Court of Appeals
for the Second Circuit reversed, however, and reinstated
the complaints. 426 F. 3d 130, 170, 172 (2005). We
granted the underwriters’ petition for certiorari. And we
now reverse the Court of Appeals.
II

A

Sometimes regulatory statutes explicitly state whether
they preclude application of the antitrust laws. Compare,
e.g., Webb-Pomerene Act, 15 U. S. C. §62 (expressly pro
 Cite as: 551 U. S. ____ (2007) 5

Opinion of the Court

viding antitrust immunity) with §601(b)(1) of the Tele
communications Act of 1996, 47 U. S. C. §152 (stating that
antitrust laws remain applicable). See also Verizon Com
munications Inc. v. Law Offices of Curtis V. Trinko, LLP,
540 U. S. 398, 406–407 (2004) (analyzing the antitrust
saving clause of the Telecommunications Act). Where
regulatory statutes are silent in respect to antitrust, how
ever, courts must determine whether, and in what re
spects, they implicitly preclude application of the antitrust
laws. Those determinations may vary from statute to
statute, depending upon the relation between the anti
trust laws and the regulatory program set forth in the
particular statute, and the relation of the specific conduct
at issue to both sets of laws. Compare Gordon, 422 U. S.,
at 689 (finding implied preclusion of antitrust laws); and
NASD, 422 U. S., at 729–730 (same), with Otter Tail
Power Co. v. United States, 410 U. S. 366, 374–375 (1973)
(finding no implied immunity); Philadelphia Nat. Bank,
374 U. S., at 352 (same); and Silver, 373 U. S., at 360
(same). See also Phonotele, Inc. v. American Tel. & Tel.
Co., 664 F. 2d 716, 727 (CA9 1981).
Three decisions from this Court specifically address the
relation of securities law to antitrust law. In Silver the
Court considered a dealer’s claim that, by expelling him
from the New York Stock Exchange, the Exchange had
violated the antitrust prohibition against group “boy
cott[s].” 373 U. S., at 347. The Court wrote that, where
possible, courts should “reconcil[e] the operation of both
[i.e., antitrust and securities] statutory schemes . . . rather
than holding one completely ousted.” Id., at 357. It also
set forth a standard, namely that “[r]epeal of the antitrust
laws is to be regarded as implied only if necessary to make
the Securities Exchange Act work, and even then only to
the minimum extent necessary.” Ibid. And it held that
the securities law did not preclude application of the anti
trust laws to the claimed boycott insofar as the Exchange
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Opinion of the Court

denied the expelled dealer a right to fair procedures. Id., at
359–360.
In reaching this conclusion, the Court noted that the
SEC lacked jurisdiction under the securities law “to re
view particular instances of enforcement of exchange
rules”; that “nothing [was] built into the regulatory
scheme which performs the antitrust function of insuring”
that rules that injure competition are nonetheless “justi
fied as furthering” legitimate regulatory “ends”; that the
expulsion “would clearly” violate “the Sherman Act unless
justified by reference to the purposes of the Securities
Exchange Act”; and that it could find no such justifying
purpose where the Exchange took “anticompetitive collec
tive action . . . without according fair procedures.” Id., at
357–358, 364 (emphasis added).
In Gordon the Court considered an antitrust complaint
that essentially alleged “price fixing” among stockbrokers.
It charged that members of the New York Stock Exchange
had agreed to fix their commissions on sales under
$500,000. And it sought damages and an injunction for
bidding future agreements. 422 U. S., at 661, and n. 3.
The lawsuit was filed at a time when regulatory attitudes
toward fixed stockbroker commissions were changing. The
fixed commissions challenged in the complaint were ap
plied during a period when the SEC approved of the prac
tice of fixing broker-commission rates. But Congress and
the SEC had both subsequently disapproved for the future
the fixing of some of those rates. See id., at 690–691.
In deciding whether antitrust liability could lie, the
Court repeated Silver’s general standard in somewhat
different terms: It said that an “implied repeal” of the
antitrust laws would be found only “where there is a ‘plain
repugnancy between the antitrust and regulatory provi
sions.’ ” 422 U. S., at 682 (quoting Philadelphia Nat.
Bank, supra, at 350–351). It then held that the securities
laws impliedly precluded application of the antitrust laws
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Opinion of the Court

in the case at hand. The Court rested this conclusion on
three sets of considerations. For one thing, the securities
law “gave the SEC direct regulatory power over exchange
rules and practices with respect to the fixing of reasonable
rates of commission.” 422 U. S., at 685 (internal quotation
marks omitted). For another, the SEC had “taken an
active role in review of proposed rate changes during the
last 15 years,” and had engaged in “continuing activity” in
respect to the regulation of commission rates. Ibid. Fi
nally, without antitrust immunity, “the exchanges and
their members” would be subject to “conflicting stan
dards.” Id., at 689.
This last consideration—the conflict—was complicated
due to Congress’, and the agency’s, changing views about
the validity of fixed commissions. As far as the past fixing
of rates was concerned, the conflict was clear: The anti
trust law had forbidden the very thing that the securities
law had then permitted, namely an anticompetitive rate
setting process. In respect to the future, however, the
conflict was less apparent. That was because the SEC’s
new (congressionally authorized) prohibition of (certain)
fixed rates would take effect in the near-term future. And
after that time the SEC and the antitrust law would both
likely prohibit some of the ratefixing to which the plain
tiff’s injunction would likely apply. See id., at 690–691.
Despite the likely compatibility of the laws in the future,
the Court nonetheless expressly found conflict. The con
flict arose from the fact that the law permitted the SEC to
supervise the competitive setting of rates and to “reintro
duc[e] . . . fixed rates,” id., at 691 (emphasis added), under
certain conditions. The Court consequently wrote that
“failure to imply repeal would render nugatory the legisla
tive provision for regulatory agency supervision of ex
change commission rates.” Ibid. The upshot is that, in
light of potential future conflict, the Court found that the
securities law precluded antitrust liability even in respect
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Opinion of the Court

to a practice that both antitrust law and securities law
might forbid.
In NASD the Court considered a Department of Justice
antitrust complaint claiming that mutual fund companies
had agreed with securities broker-dealers (1) to fix “resale”
prices, i.e., the prices at which a broker-dealer would sell a
mutual fund’s shares to an investor or buy mutual fund
shares from a fund investor (who wished to redeem the
shares); (2) to fix other terms of sale including those re
lated to when, how, to whom, and from whom the broker-
dealers might sell and buy mutual fund shares; and (3) to
forbid broker-dealers from freely selling to, and buying
shares from, one another. See 422 U. S., at 700–703.
The Court again found “clear repugnancy,” and it held
that the securities law, by implication, precluded all parts
of the antitrust claim. Id., at 719. In reaching this con
clusion, the Court found that antitrust law (e.g., forbidding
resale price maintenance) and securities law (e.g., permit
ting resale price maintenance) were in conflict. In decid
ing that the latter trumped the former, the Court relied
upon the same kinds of considerations it found determina
tive in Gordon. In respect to the last set of allegations
(restricting a free market in mutual fund shares among
brokers), the Court said that (1) the relevant securities
law “enables [the SEC] to monitor the activities ques
tioned”; (2) “the history of Commission regulations sug
gests no laxity in the exercise of this authority”; and hence
(3) allowing an antitrust suit to proceed that is “so directly
related to the SEC’s responsibilities” would present “a
substantial danger that [broker-dealers and other defen
dants] would be subjected to duplicative and inconsistent
standards.” See NASD, 422 U. S., at 734–735.
As to the other practices alleged in the complaint (con
cerning, e.g., resale price maintenance), the Court empha
sized that (1) the securities law “vested in the SEC final
authority to determine whether and to what extent” the
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Opinion of the Court

relevant practices “should be tolerated,” id., at 729; (2)
although the SEC has not actively supervised the relevant
practices, that is only because the statute “reflects a clear
congressional determination that, subject to Commission
oversight, mutual funds should be allowed to retain the
initiative in dealing with the potentially adverse effects of
disruptive trading practices,” id., at 727; and (3) the SEC
has supervised the funds insofar as its “acceptance of
fund-initiated restrictions for more than three decades . . .
manifests an informed administrative judgment that the
contractual restrictions . . . were appropriate means for
combating the problems of the industry,” id., at 728. The
Court added that, in these respects, the SEC had engaged
in “precisely the kind of administrative oversight of pri
vate practices that Congress contemplated.” Ibid.
As an initial matter these cases make clear that
JUSTICE THOMAS is wrong to regard §§77p(a) and 78bb(a)
as saving clauses so broad as to preserve all antitrust
actions. See post, p. ___ (dissenting opinion). The United
States advanced the same argument in Gordon. See Brief
for United States as Amicus Curiae in Gordon v. New York
Stock Exchange, Inc., O. T. 1974, No. 74–304, pp. 8, 42.
And the Court, in finding immunity, necessarily rejected
it. See also NASD, supra, at 694 (same holding); Herman
& MacLean v. Huddleston, 459 U. S. 375, 383 (1983)
(finding saving clause applicable to overlap between secu
rities laws where that “overlap [was] neither unusual nor
unfortunate” (internal quotation marks omitted)). Al
though one party has made the argument in this Court, it
was not presented in the courts below. And we shall not
reexamine it.
This Court’s prior decisions also make clear that, when
a court decides whether securities law precludes antitrust
law, it is deciding whether, given context and likely conse
quences, there is a “clear repugnancy” between the securi
ties law and the antitrust complaint—or as we shall sub
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sequently describe the matter, whether the two are
“clearly incompatible.” Moreover, Gordon and NASD, in
finding sufficient incompatibility to warrant an implica
tion of preclusion, have treated the following factors as
critical: (1) the existence of regulatory authority under the
securities law to supervise the activities in question; (2)
evidence that the responsible regulatory entities exercise
that authority; and (3) a resulting risk that the securities
and antitrust laws, if both applicable, would produce
conflicting guidance, requirements, duties, privileges, or
standards of conduct. We also note (4) that in Gordon and
NASD the possible conflict affected practices that lie
squarely within an area of financial market activity that
the securities law seeks to regulate.
B
These principles, applied to the complaints before us,
considerably narrow our legal task. For the parties cannot
reasonably dispute the existence here of several of the
conditions that this Court previously regarded as crucial
to finding that the securities law impliedly precludes the
application of the antitrust laws.
First, the activities in question here—the underwriters’
efforts jointly to promote and to sell newly issued securi
ties—is central to the proper functioning of well-regulated
capital markets. The IPO process supports new firms that
seek to raise capital; it helps to spread ownership of those
firms broadly among investors; it directs capital flows in
ways that better correspond to the public’s demand for
goods and services. Moreover, financial experts, including
the securities regulators, consider the general kind of joint
underwriting activity at issue in this case, including road
shows and book-building efforts essential to the successful
marketing of an IPO. See Memorandum Amicus Curiae of
SEC in IPO Antitrust, Case No. 01 CIV 2014 (WHP)
(SDNY), pp. 15, 39–40, App. D to Pet. for Cert. 124a, 138a,
 Cite as: 551 U. S. ____ (2007) 11

Opinion of the Court

155a–157a (hereinafter Brief for SEC). Thus, the anti
trust complaints before us concern practices that lie at the
very heart of the securities marketing enterprise.
Second, the law grants the SEC authority to supervise
all of the activities here in question. Indeed, the SEC
possesses considerable power to forbid, permit, encourage,
discourage, tolerate, limit, and otherwise regulate virtu
ally every aspect of the practices in which underwriters
engage. See, e.g., 15 U. S. C. §§77b(a)(3), 77j, 77z–2
(granting SEC power to regulate the process of book-
building, solicitations of “indications of interest,” and
communications between underwriting participants and
their customers, including those that occur during road
shows); §78o(c)(2)(D) (granting SEC power to define and
prevent through rules and regulations acts and practices
that are fraudulent, deceptive, or manipulative); §78i(a)(6)
(similar); §78j(b) (similar). Private individuals who suffer
harm as a result of a violation of pertinent statutes and
regulations may also recover damages. See §§78bb, 78u–
4, 77k.
Third, the SEC has continuously exercised its legal
authority to regulate conduct of the general kind now at
issue. It has defined in detail, for example, what under
writers may and may not do and say during their road
shows. Compare, e.g., Guidance Regarding Prohibited
Conduct In Connection with IPO Allocations, 70 Fed. Reg.
19672 (2005), with Regulation M, 17 CFR §§242.100–
242.105 (2006). It has brought actions against underwrit
ers who have violated these SEC regulations. See Brief
for SEC 13–14, App. D to Pet. for Cert. 136a–138a. And
private litigants, too, have brought securities actions
complaining of conduct virtually identical to the conduct
at issue here; and they have obtained damages. See, e.g.,
In re Initial Pub. Offering Securities Litigation, 241
F. Supp. 2d 281 (SDNY 2003).
The preceding considerations show that the first condi
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Opinion of the Court

tion (legal regulatory authority), the second condition
(exercise of that authority), and the fourth condition
(heartland securities activity) that were present in Gordon
and NASD are satisfied in this case as well. Unlike Silver,
there is here no question of the existence of appropriate
regulatory authority, nor is there doubt as to whether the
regulators have exercised that authority. Rather, the
question before us concerns the third condition: Is there a
conflict that rises to the level of incompatibility? Is an
antitrust suit such as this likely to prove practically in
compatible with the SEC’s administration of the Nation’s
securities laws?
III

A

Given the SEC’s comprehensive authority to regulate
IPO underwriting syndicates, its active and ongoing exer
cise of that authority, and the undisputed need for joint
IPO underwriter activity, we do not read the complaints as
attacking the bare existence of IPO underwriting syndi
cates or any of the joint activity that the SEC considers a
necessary component of IPO-related syndicate activity.
See Brief for SEC 15, 39–40, App. D to Pet. for Cert. 138a,
155a–157a. See also IPO Antitrust, 287 F. Supp. 2d, at
507 (discussing the history of syndicate marketing of
IPOs); App. 12 (complaint attacks underwriters “abuse” of
“the preexisting practice of combining into underwriting
syndicates” (emphasis added)); H. R. Rep. No. 1383, 73d
Cong., 2d Sess., 6–7 (1934); S. Rep. No. 792, 73d Cong., 2d
Sess., 5 (1934) (law must give to securities agencies free
dom to regulate agreements among syndicate members).
Nor do we understand the complaints as questioning
underwriter agreements to fix the levels of their commis
sions, whether or not the resulting price is “excessive.”
See Gordon, 422 U. S., at 688–689 (securities law conflicts
with, and therefore precludes, antitrust attack on the
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Opinion of the Court

fixing of commissions where SEC has not approved, but
later might approve, the practice).
We nonetheless can read the complaints as attacking
the manner in which the underwriters jointly seek to
collect “excessive” commissions. The complaints attack
underwriter efforts to collect commissions through certain
practices (i.e., laddering, tying, collecting excessive com
missions in the form of later sales of the issued shares),
which according to respondents the SEC itself has already
disapproved and, in all likelihood, will not approve in the
foreseeable future. In respect to this set of claims, they
contend that there is no possible “conflict” since both
securities law and antitrust law aim to prohibit the same
undesirable activity. Without a conflict, they add, there is
no “repugnance” or “incompatibility,” and this Court may
not imply that securities law precludes an antitrust suit.
B
We accept the premises of respondents’ argument—that
the SEC has full regulatory authority over these practices,
that it has actively exercised that authority, but that the
SEC has disapproved (and, for argument’s sake, we as
sume that it will continue to disapprove) the conduct that
the antitrust complaints attack. Nonetheless, we cannot
accept respondents’ conclusion. Rather, several considera
tions taken together lead us to find that, even on these
prorespondent assumptions, securities law and antitrust
law are clearly incompatible.
First, to permit antitrust actions such as the present
one still threatens serious securities-related harm. For
one thing, an unusually serious legal line-drawing prob
lem remains unabated. In the present context only a fine,
complex, detailed line separates activity that the SEC
permits or encourages (for which respondents must con
cede antitrust immunity) from activity that the SEC must
(and inevitably will) forbid (and which, on respondents’
14 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING

Opinion of the Court

theory, should be open to antitrust attack).
For example, in respect to “laddering” the SEC forbids
an underwriter to “solicit customers prior to the comple
tion of the distribution regarding whether and at what
price and in what quantity they intend to place immediate
aftermarket orders for IPO stock,” 70 Fed. Reg. 19675–
19676 (emphasis deleted); 17 CFR §§242.100–242.105.
But at the same time the SEC permits, indeed encourages,
underwriters (as part of the “book building” process) to
“inquir[e] as to a customer’s desired future position in the
longer term (for example, three to six months), and the
price or prices at which the customer might accumulate
that position without reference to immediate aftermarket
activity.” 70 Fed. Reg. 19676.
It will often be difficult for someone who is not familiar
with accepted syndicate practices to determine with confi
dence whether an underwriter has insisted that an inves
tor buy more shares in the immediate aftermarket (forbid
den), or has simply allocated more shares to an investor
willing to purchase additional shares of that issue in the
long run (permitted). And who but a securities expert
could say whether the present SEC rules set forth a virtu
ally permanent line, unlikely to change in ways that
would permit the sorts of “laddering-like” conduct that it
now seems to forbid? Cf. Gordon, supra, at 690–691.
Similarly, in respect to “tying” and other efforts to ob
tain an increased commission from future sales, the SEC
has sought to prohibit an underwriter “from demanding . .
. an offer from their customers of any payment or other
consideration [such as the purchase of a different security]
in addition to the security’s stated consideration.” 69 Fed.
Reg. 75785 (2004). But the SEC would permit a firm to
“allocat[e] IPO shares to a customer because the customer
has separately retained the firm for other services, when
the customer has not paid excessive compensation in
relation to those services.” Ibid., n. 108. The National
 Cite as: 551 U. S. ____ (2007) 15

Opinion of the Court

Association of Securities Dealers (NASD), over which the
SEC exercises supervisory authority, has also proposed a
rule that would prohibit a member underwriter from
“offering or threatening to withhold” IPO shares “as con
sideration or inducement for the receipt of compensation
that is excessive in relation to the services provided.” Id.,
at 77810. The NASD would allow, however, a customer
legitimately to compete for IPO shares by increasing the
level and quantity of compensation it pays to the under
writer. See Ibid. (describing NASD Proposed Rule
2712(a)).
Under these standards, to distinguish what is forbidden
from what is allowed requires an understanding of just
when, in relation to services provided, a commission is
“excessive,” indeed, so “excessive” that it will remain
permanently forbidden, see Gordon, 422 U. S., at 690–691.
And who but the SEC itself could do so with confidence?
For another thing, evidence tending to show unlawful
antitrust activity and evidence tending to show lawful
securities marketing activity may overlap, or prove identi
cal. Consider, for instance, a conversation between an
underwriter and an investor about how long an investor
intends to hold the new shares (and at what price), say a
conversation that elicits comments concerning both the
investor’s short and longer term plans. That exchange
might, as a plaintiff sees it, provide evidence of an under
writer’s insistence upon “laddering” or, as a defendant
sees it, provide evidence of a lawful effort to allocate
shares to those who will hold them for a longer time. See
Brief for United States as Amicus Curiae 27.
Similarly, the same somewhat ambiguous conversation
might help to establish an effort to collect an unlawfully
high commission through atypically high commissions on
later sales or through the sales of less popular stocks. Or
it might prove only that the underwriter allocates more
popular shares to investors who will help stabilize the
16 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING

Opinion of the Court

aftermarket share price. See, e.g., Department of En
forcement, Disciplinary Proceeding No. CAF030014,
pp. 12–13 (NASD Office of Hearing Officers, Mar. 3,
2006).
Further, antitrust plaintiffs may bring lawsuits
throughout the Nation in dozens of different courts with
different nonexpert judges and different nonexpert juries.
In light of the nuanced nature of the evidentiary evalua
tions necessary to separate the permissible from the im
permissible, it will prove difficult for those many different
courts to reach consistent results. And, given the fact-
related nature of many such evaluations, it will also prove
difficult to assure that the different courts evaluate simi
lar fact patterns consistently. The result is an unusually
high risk that different courts will evaluate similar factual
circumstances differently. See Hovenkamp, Antitrust
Violations in Securities Markets, 28 J. Corp. L. 607, 629
(2003) (“Once regulation of an industry is entrusted to jury
trials, the outcomes of antitrust proceedings will be incon
sistent with one another . . . ”).
Now consider these factors together—the fine securities-
related lines separating the permissible from the imper
missible; the need for securities-related expertise (particu
larly to determine whether an SEC rule is likely perma
nent); the overlapping evidence from which reasonable but
contradictory inferences may be drawn; and the risk of
inconsistent court results. Together these factors mean
there is no practical way to confine antitrust suits so that
they challenge only activity of the kind the investors seek
to target, activity that is presently unlawful and will likely
remain unlawful under the securities law. Rather, these
factors suggest that antitrust courts are likely to make
unusually serious mistakes in this respect. And the threat
of antitrust mistakes, i.e., results that stray outside the
narrow bounds that plaintiffs seek to set, means that
underwriters must act in ways that will avoid not simply
 Cite as: 551 U. S. ____ (2007) 17

Opinion of the Court

conduct that the securities law forbids (and will likely
continue to forbid), but also a wide range of joint conduct
that the securities law permits or encourages (but which
they fear could lead to an antitrust lawsuit and the risk of
treble damages). And therein lies the problem.
This kind of problem exists to some degree in respect to
other antitrust lawsuits. But here the factors we have
mentioned make mistakes unusually likely (a matter
relevant to Congress’ determination of which institution
should regulate a particular set of market activities). And
the role that joint conduct plays in respect to the market
ing of IPOs, along with the important role IPOs them
selves play in relation to the effective functioning of capi
tal markets, means that the securities-related costs of
mistakes is unusually high. It is no wonder, then, that the
SEC told the District Court (consistent with what the
Government tells us here) that a “failure to hold that the
alleged conduct was immunized would threaten to disrupt
the full range of the Commission’s ability to exercise its
regulatory authority,” adding that it would have a “chill
ing effect” on “lawful joint activities . . . of tremendous
importance to the economy of the country.” Brief for SEC
40, App. D to Pet. for Cert. 157a.
We believe it fair to conclude that, where conduct at the
core of the marketing of new securities is at issue; where
securities regulators proceed with great care to distin
guish the encouraged and permissible from the forbidden;
where the threat of antitrust lawsuits, through error and
disincentive, could seriously alter underwriter conduct in
undesirable ways, to allow an antitrust lawsuit would
threaten serious harm to the efficient functioning of the
securities markets.
Second, any enforcement-related need for an antitrust
lawsuit is unusually small. For one thing, the SEC ac
tively enforces the rules and regulations that forbid the
conduct in question. For another, as we have said, inves
18 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING

Opinion of the Court

tors harmed by underwriters’ unlawful practices may
bring lawsuits and obtain damages under the securities
law. See supra, at 10–11. Finally, the SEC is itself re
quired to take account of competitive considerations when
it creates securities-related policy and embodies it in rules
and regulations. And that fact makes it somewhat less
necessary to rely upon antitrust actions to address anti-
competitive behavior. See 15 U. S. C. §77b(b) (instructing
the SEC to consider, “in addition to the protection of inves
tors, whether the action will promote efficiency, competi
tion, and capital formation”); §78w(a)(2) (the SEC “shall
consider among other matters the impact any such rule or
regulation would have on competition”); Trinko, 540 U. S.,
at 412 (“[T]he additional benefit to competition provided
by antitrust enforcement will tend to be small” where
other laws and regulatory structures are “designed to
deter and remedy anticompetitive harm”).
We also note that Congress, in an effort to weed out
unmeritorious securities lawsuits, has recently tightened
the procedural requirements that plaintiffs must satisfy
when they file those suits. To permit an antitrust lawsuit
risks circumventing these requirements by permitting
plaintiffs to dress what is essentially a securities com
plaint in antitrust clothing. See generally Private Securi
ties Litigation Reform Act of 1995, 109 Stat. 737; Securi
ties Litigation Uniform Standards Act of 1998, 112 Stat.
3227.
In sum, an antitrust action in this context is accompa
nied by a substantial risk of injury to the securities mar
kets and by a diminished need for antitrust enforcement
to address anticompetitive conduct. Together these con
siderations indicate a serious conflict between, on the one
hand, application of the antitrust laws and, on the other,
proper enforcement of the securities law.
We are aware that the Solicitor General, while recogniz
ing the conflict, suggests a procedural device that he be
 Cite as: 551 U. S. ____ (2007) 19

Opinion of the Court

lieves will avoid it (in effect, a compromise between the
differing positions that the SEC and Antitrust Division of
the Department of Justice took in the courts below).
Compare Brief for Dept. of Justice, Antitrust Division, as
Amicus Curiae in Case No. 01 CIV 2014, p. 23 (seeking no
preclusion of the antitrust laws), with Brief for SEC 39–
40, App. D to Pet. for Cert. 155a–157a (seeking total pre
clusion of the antitrust laws). He asks us to remand this
case to the District Court so that it can determine
“whether respondents’ allegations of prohibited conduct
can, as a practical matter, be separated from conduct that
is permitted by the regulatory scheme,” and in doing so,
the lower court should decide whether SEC-permitted and
SEC-prohibited conduct are “inextricably intertwined.”
See Brief for United States as Amicus Curiae 9. The
Solicitor General fears that otherwise, we might read the
law as totally precluding application of the antitrust law
to underwriting syndicate behavior, even were underwrit
ers, say, overtly to divide markets.
The Solicitor General’s proposed disposition, however,
does not convincingly address the concerns we have set
forth here—the difficulty of drawing a complex, sinuous
line separating securities-permitted from securities-
forbidden conduct, the need for securities-related expertise
to draw that line, the likelihood that litigating parties will
depend upon the same evidence yet expect courts to draw
different inferences from it, and the serious risk that
antitrust courts will produce inconsistent results that, in
turn, will overly deter syndicate practices important in the
marketing of new issues. (We also note that market divi
sions appear to fall well outside the heartland of activities
related to the underwriting process than the conduct
before us here, and we express no view in respect to that
kind of activity.)
The upshot is that all four elements present in Gordon
are present here: (1) an area of conduct squarely within
the heartland of securities regulations; (2) clear and ade
20 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING

Opinion of the Court

quate SEC authority to regulate; (3) active and ongoing
agency regulation; and (4) a serious conflict between the
antitrust and regulatory regimes. We therefore conclude
that the securities laws are “clearly incompatible” with the
application of the antitrust laws in this context.
The Second Circuit’s contrary judgment is
Reversed.
JUSTICE KENNEDY took no part in the consideration or
decision of this case.
 Cite as: 551 U. S. ____ (2007) 1

STEVENS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1157
_________________

CREDIT SUISSE SECURITIES (USA) LLC, FKA CREDIT

SUISSE FIRST BOSTON LLC, ET AL., PETITIONERS v.

GLEN BILLING ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 18, 2007]

JUSTICE STEVENS, concurring in the judgment.
When investment bankers cooperate in underwriting an
initial public offering (IPO), they increase the amount of
capital available to firms producing goods and services
and make additional securities available for purchase. By
agglomerating networks of investors and spreading the
risk of overvaluation, syndicates make positive contribu
tions to the economy that could not be achieved through
independent action. See 426 F. 3d 130, 137–138 (CA2
2005). In my view, agreements among underwriters on
how best to market IPOs, including agreements on price
and other terms of sale to initial investors, should be
treated as procompetitive joint ventures for purposes of
antitrust analysis. In all but the rarest of cases, they
cannot be conspiracies in restraint of trade within the
meaning of §1 of the Sherman Act, 15 U. S. C. §1.
After the initial purchase, the prices of newly issued
stocks or bonds are determined by competition among the
vast multitude of other securities traded in a free market.
To suggest that an underwriting syndicate can restrain
trade in that market by manipulating the terms of IPOs is
frivolous. See United States v. Morgan, 118 F. Supp. 621,
689 (SDNY 1953) (Medina, J.) (“[T]he syndicate system
has no effect whatever on general market prices, nor do
2 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING

STEVENS, J., concurring in judgment

the participating underwriters and dealers intend it to
have any. On the contrary, it is the general market prices
of securities of comparable rating and quality which con
trol the public offering price . . . . The particular issue,
even if a large one, is but an infinitesimal unit of trade in
the ocean of security issues running into the billions,
which constitutes the general market”); see also Hovenk
amp, Antitrust Violations in Securities Markets, 28 J.
Corp. L. 607, 615–618 (2003). It is possible of course that
the practices described in the complaints in these two
cases may have enabled the underwriters to divert some of
the benefits of the offerings from the issuers to them
selves, thus breaching the agents’ fiduciary obligations to
their principals. But if such an injury did occur, it is not
an “antitrust injury” giving rise to a damages claim by
investors. See Brunswick Corp. v. Pueblo Bowl-O-Mat,
Inc., 429 U. S. 477, 489 (1977).
Nor do I believe that the so-called “laddering” and “ty
ing” described in the complaints constitute vertical re
straints that violate either the Sherman Act or §2(c) of the
Robinson-Patman Act, 15 U. S. C. §13(c). Given the mag
nitude of the market these practices are alleged to have
influenced, I think it obvious as a matter of law that there
has been no injury to any relevant competition. Unlike in
Bell Atlantic Corp. v. Twombly, 550 U. S. ___ (2007), there
is no need to engage in discovery to determine whether
there is any merit to the plaintiffs’ claims. See id., at ___–
___ (STEVENS, J., dissenting) (slip op., at 24–26).
The defendants moved to dismiss for failure to state a
claim on the ground, among others, that the plaintiffs’
claims challenge “the ordinary activities of participants in
underwriting syndicates, which are recognized to be com
pletely lawful and pro-competitive.” Record, Doc. 98, p.
72. I agree and would hold, as we did in Parker v. Brown,
317 U. S. 341, 351–352 (1943), that the defendants’ al
leged conduct does not violate the antitrust laws, rather
 Cite as: 551 U. S. ____ (2007) 3

STEVENS, J., concurring in judgment

than holding that Congress has implicitly granted them
immunity from those laws. Surely I would not suggest, as
the Court did in Twombly, and as it does again today, that
either the burdens of antitrust litigation or the risk “that
antitrust courts are likely to make unusually serious
mistakes,” ante, at 16, should play any role in the analysis
of the question of law presented in a case such as this.
Accordingly, I concur in the Court’s judgment but not in
its opinion.
 Cite as: 551 U. S. ____ (2007) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–1157
_________________

CREDIT SUISSE SECURITIES (USA) LLC, FKA CREDIT

SUISSE FIRST BOSTON LLC, ET AL., PETITIONERS v.

GLEN BILLING ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 18, 2007]

JUSTICE THOMAS, dissenting.
The Court believes it must decide whether the securities
laws implicitly preclude application of the antitrust laws
because the securities statutes “are silent in respect to
antitrust.” See ante, at 5. I disagree with that basic
premise. The securities statutes are not silent. Both the
Securities Act and the Securities Exchange Act contain
broad saving clauses that preserve rights and remedies
existing outside of the securities laws.
Section 16 of the Securities Act of 1933 states that “the
rights and remedies provided by this subchapter shall be
in addition to any and all other rights and remedies that
may exist in law or in equity.” 15 U. S. C. §77p(a). In
parallel fashion, §28 of the Securities Exchange Act of
1934 states that “the rights and remedies provided by this
chapter shall be in addition to any and all other rights and
remedies that may exist at law or in equity.” §78bb(a).
This Court has previously characterized those clauses as
“confirm[ing] that the remedies in each Act were to be
supplemented by ‘any and all’ additional remedies.” Her
man & MacLean v. Huddleston, 459 U. S. 375, 383 (1983).
The Sherman Act was enacted in 1890. See 26 Stat.
209. Accordingly, rights and remedies under the federal
antitrust laws certainly would have been thought of as
2 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING

THOMAS, J., dissenting

“rights and remedies” that existed “at law or in equity” by
the Congresses that enacted that Securities Act and the
Securities Exchange Act in the early 1930’s. See §77p;
§78bb. Therefore, both statutes explicitly save the very
remedies the Court holds to be impliedly precluded. There
is no convincing argument for why these saving provisions
should not resolve this case in respondents’ favor.
The Court’s opinion overlooks the saving clauses seem
ingly because they do not “explicitly state whether they
preclude application of the antitrust laws.” Ante, at 4; see
also Brief for Petitioners 33, n. 5.1 As the Court observes,
some statutes contain saving clauses specific to antitrust.
See, e.g., Verizon Communications Inc. v. Law Offices of
Curtis V. Trinko, LLP, 540 U. S. 398, 406 (2004) (quoting
Telecommunications Act of 1996, §601(b)(1), 110 Stat. 143,
note following 47 U. S. C. §152 (“ ‘[N]othing in this Act or
the amendments made by this Act shall be construed to
modify, impair, or supersede the applicability of any of the
antitrust laws’ ”)). But the mere existence of targeted
saving clauses does not demonstrate—or even suggest—
that antitrust remedies are not included within the “any
and all” other remedies to which the securities saving
clauses refer. Although Congress may have singled out
antitrust remedies for special treatment in some statutes,
it is not precluded from using more general saving provi
sions that encompass antitrust and other remedies.
Surely Congress is not required to enumerate every cause
——————
1 The Court suggests that the argument advanced in my opinion was

not preserved by the respondents. See ante, at 9. Respondents’ princi
pal contention in the Court of Appeals below was that “[t]he federal
securities laws do not expressly immunize Defendants’ alleged conduct
from prosecution under the federal antitrust laws.” See, e.g., Brief for
Appellants in No. 03–9288 (CA2), pp. 15–16. Because a full reading of
the securities laws is essential to analyzing respondents’ central
argument, I do not consider arguments based on the saving clauses
unpreserved. Cf. United States v. Morton, 467 U. S. 822, 828 (1984)
(“[W]e read statutes as a whole”).
 Cite as: 551 U. S. ____ (2007) 3

THOMAS, J., dissenting

of action—state and federal—that may be brought. When
Congress wants to preserve all other remedies, using the
word “all” is sufficient.
Petitioners also argue that the saving clauses should not
apply because the clauses did not play a role in the Court’s
prior securities-antitrust pre-emption cases. Brief for
Petitioners 33, n. 5 (“[N]either provision was found to bar
immunity in Gordon [v. New York Stock Exchange, Inc.,
422 U. S. 659 (1975)] or [United States v. National Assn. of
Securities Dealers, Inc., 422 U. S. 694 (1975) (NASD)] ”).
Be that as it may, none of the opinions in Silver v. New
York Stock Exchange, 373 U. S. 341 (1963), Gordon, or
NASD—majority or dissent—offered any analysis of the
saving clauses. Omitted reasoning has little claim to
precedential value. Absent any indication that these
omissions were the product of reasoned analysis instead of
inadvertent oversight, I would not allow the Court’s prior
silence on this issue to erect a perpetual bar to arguments
based on a full reading of the statute’s relevant text.
Finally, it might be argued that the saving clauses
preserve only state-law rights and remedies. This argu
ment has no textual basis. If Congress had intended to
limit the clauses to state law, it surely would not have
phrased them to preserve “any and all” rights and reme
dies. Other provisions in both Acts, including a later
sentence in the section containing the Securities Exchange
Act’s saving clause, suggest that Congress explicitly re
ferred to States when it intended to impose a state-law
limitation. See, e.g., 15 U. S. C. §77v(a) (referring to
“State and Territorial courts”); §78bb(a) (referring to the
“securities commission . . . of any State”); cf. 17 U. S. C.
§301(b) (“Nothing in this title annuls or limits any rights
or remedies under the common law or statutes of any
State . . .”). Given Congress’ demonstrated ability to
limit provisions of the securities laws to States and the
lack of any such limitation here, the saving clauses cannot
4 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING

THOMAS, J., dissenting

be understood as limited only to state-law rights and
remedies.2
A straightforward application of the saving clauses to
this case leads to the conclusion that respondents’ anti
trust suits must proceed. Accordingly, we do not need to
reconcile any conflict between the securities laws and the
antitrust laws. I respectfully dissent.

——————
2 TheCourt’s suggestion that the clauses were intended to save only
securities-related rights and remedies is subject to many of the same
criticisms. See ante, at 9. The Securities Act of 1933 provided no
private federal remedy for fraud in the purchase or sale of registered
securities. On the Court’s proposed reading of §77p, however, a federal
action for mail or wire fraud and a state-law action for fraud, which are
not securities-related rights or remedies, would not have been included
within the Securities Act’s saving provision.