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Rethinking the antitrust-securities interface
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DOI：10.1111/ablj.70015.png)
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Abstract
En 中文
This article proposes a new theoretical framework for resolving conflicts between antitrust law and securities regulation, which is distinctive in four respects. First, it eschews the traditional approach of resolving antitrust-securities conflicts through implied antitrust immunity, which unjustifiably prioritizes securities regulation above antitrust law. Second, it argues for a narrow definition of conflict, encompassing only conduct presently authorized or required by the securities regime that also has likely and significant anticompetitive effects; practices that are illegal under both antitrust law and securities regulation are thereby excluded. Third, this article builds on the literature on the antitrust-intellectual property interface to recommend a structured, rule-of-reason framework for resolving conflicts at the antitrust-securities interface. Unlike implied antitrust immunity, which automatically allows securities regulation concerns to trump antitrust concerns, the rule of reason seeks to strike a proper balance. The analysis begins by asking whether the securities practice has likely and significant anticompetitive effects. It then inquires into the securities regulation concerns behind the conduct and whether there is a less restrictive means of addressing those concerns. Fourth, a two-stage procedure is proposed for implementing the rule of reason to resolve antitrust-securities conflicts in rulemaking and adjudication, involving the collaboration of the Securities and Exchange Commission, the Department of Justice, and the courts.
Keywords:
INTELLECTUAL PROPERTY
REGULATED INDUSTRIES
FINANCIAL REGULATION
IMMUNITY
COMPETITION
LIMITS
LAWS
Journal
A
IF:
1.5
Papers:
10
Citations:
0
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