Hyper field pre-emption

On December 3 2009, in In re Short Sale Antitrust Litigation, the US Court of Appeals for the Second Circuit affirmed the dismissal of a putative class action alleging that certain financial institutions serving as prime brokers fixed the price of securities designated as "hard-to-borrow" in violation of Section 1 of the Sherman Act. This is the first Second Circuit decision to revisit the issue of implied repeal of the antitrust laws since the court of appeals was reversed by the US Supreme Court in Credit Suisse Securities (USA) LLC v Billing, (2007).

The Short Sale decision raises many questions for practitioners about the appropriate scope of immunity under the antitrust laws for securities market practices and the efficacy of the standards set out in Billing. Still, while lawyers can debate whether Short Sale reached the correct result, the Second Circuit's decision has undoubtedly strengthened implied repeal as a defence...