SEC, Antitrust Division May Square Off Over Jurisdiction

Article by Richard Liebeskind, Bryan R. Dunlap and Gena Chieco

Antitrust lawyers and securities lawyers rarely pay attention to the same litigation. Billing v. Credit Suisse First Boston¹ is a notable exception. Now on a petition for certiorari to the U.S. Supreme Court, Billing could have far-reaching consequences for both securities and antitrust law.

The high court recently asked the U.S. Solicitor General for the government's views on whether the process of selling new stocks after their initial offering (i.e., in the "aftermarket") is immune to antitrust challenge.² The Solicitor General may have to choose sides: In the Court of Appeals, both the Securities and Exchange Commission ("SEC") and the Antitrust Division of the U.S. Department of Justice ("DOJ") participated as amici curiae – on opposite sides.