CREDIT SUISSE SECURITIES (USA) LLC, fka CREDIT SUISSE FIRST BOSTON LLC, et al. v. BILLING et al.

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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 syn
dicates to help execute initial public offerings for several hundred
technology-related companies. Respondents claim that the underwrit
ers 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 purchase from the underwriters other less
desirable securities (known as “tying”). The underwriters moved to
dismiss, claiming that federal securities law impliedly precludes applica
tion 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. 270–285.
(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 conse
quences, there is a “clear repugnancy” between the securities law and
the antitrust complaint, i. e., whether the two are “clearly incompatible.”
Moreover, Gordon and NASD, in finding sufficient incompatibility to
warrant an implication of preclusion, treated as critical: (1) the existence
of regulatory authority under the securities law to supervise the activi
ties 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. 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. 270–276.

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(b) Several considerations—the underwriters’ efforts jointly to pro
mote and sell newly issued securities is central to the proper functioning
of well-regulated capital markets; the law grants the Securities and Ex
change Commission (SEC) authority to supervise such activities; and
the SEC has continuously exercised 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. 276–277.
(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 com
missions, which according to respondents the SEC itself has already
disapproved and, in all likelihood, will not approve in the foreseeable
future. Nonetheless, certain considerations, taken together, lead to the
conclusion that securities law and antitrust law are clearly incompatible
in this context. Pp. 278–285.
(1) First, to permit antitrust actions such as this threatens serious
securities-related harm. For one thing, a fine, complex, detailed line
separates activity that the SEC permits or encourages from activity
that it forbids. And the SEC has the expertise to distinguish what
is forbidden from what is allowed. For another thing, reasonable but
contradictory inferences may be drawn from overlapping evidence that
shows both unlawful antitrust activity and lawful securities marketing
activity. Further, there is a serious risk that antitrust 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 challenge only the kind of
activity the investors seek to target, which is presently unlawful and
will likely remain unlawful under the securities law. Rather, these con
siderations suggest that antitrust courts are likely to make unusually
serious mistakes in this respect. And that threat means that under
writers must act to avoid not simply conduct that the securities law
forbids, but also joint conduct that the securities law permits or encour
ages. Thus, allowing an antitrust lawsuit would threaten serious harm
to the efficient functioning of the securities market. Pp. 279–283.
(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 another, inves
tors 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 considerations when it cre
ates securities-related policy and embodies it in rules and regulations

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266 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING
Syllabus
makes it somewhat less necessary to rely on antitrust actions to address
anticompetitive behavior. Pp. 283–284.
(3) In sum, an antitrust action in this context is accompanied by a
substantial risk of injury to the securities markets and by a diminished
need for antitrust enforcement to address anticompetitive conduct. To
gether these considerations indicate a serious conflict between applica
tion of the antitrust laws and proper enforcement of the securities law.
The Solicitor General’s proposal to avoid this conflict does not convinc
ingly address these concerns. Pp. 284–285.
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, post, p. 285. Thomas, J.,
filed a dissenting opinion, post, p. 287. Kennedy, J., took no part in the
consideration or decision of the case.
Stephen M. Shapiro argued the cause for petitioners.
With him on the briefs were Kenneth S. Geller, Timothy S.
Bishop, John P. Schmitz, Robert B. McCaw, Louis R. Cohen,
Ali M. Stoeppelwerth, Noah A. Levine, Andrew J. Frack
man, Timothy J. Muris, Richard G. Parker, Carter G. Phil
lips, A. Robert Pietrzak, Andrew B. Clubok, Brant W.
Bishop, Bradley J. Bondi, Shepard Goldfein, Preeta D. Ban
sal, Richard A. Cirillo, Moses Silverman, Jon R. Roellke,
Jeffrey H. Drichta, Paul Gonson, Glenn R. Reichardt, Gan
dolfo V. DiBlasi, Penny Shane, David M. J. Rein, Randy M.
Mastro, John A. Herfort, Steven Wolowitz, Gerald J. Fields,
David W. Ichel, Jayma M. Meyer, John D. Donovan, Jr., and
Robert G. Jones.
Solici tor General Clement argued the cause for the
United States as amicus curiae. With him on the brief
were Assistant Attorney General Barnett, Deputy Solici
tor General Hungar, Deputy Assistant Attorney General
Meyer, Douglas Hallward-Driemeier, Catherine G. O’Sulli
van, Nancy C. Garrison, and Richard M. Humes.
Christopher Lovell argued the cause for respondents.
With him on the brief for respondent Billing et al. were Gary
S. Jacobson, Melvyn I. Weiss, Howard B. Sirota, Fred Tay

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Opinion of the Court
lor Isquith, J. Douglas Richards, Einer Elhauge, and Jona
than R. Macey. Russel H. Beatie filed a brief for respond
ent Pfeiffer.*
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 under
writers 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 secu
rity purchases from the underwriters, or (3) to purchase
from the underwriters other less desirable securities (a prac
tice called “tying”). The question before us is whether
there is a “ ‘plain repugnancy’ ” between 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. Philadelphia Nat. Bank, 374 U. S. 321, 350–
351 (1963)). We conclude that there is. Consequently we
must interpret the securities laws as implicitly precluding
the application of the antitrust laws to the conduct alleged
*Briefs of amici curiae urging reversal were filed for the National Asso
ciation of Securities Dealers, Inc., by Theodore B. Olson, F. Joseph Warin,
Douglas R. Cox, and Amir C. Tayrani; for NYSE Group, Inc., by Jay N.
Fastow; for the Securities Industry and Financial Markets Association
et al. by Roy T. Englert, Jr., Gary A. Orseck, Robin S. Conrad, Amar D.
Sarwal, and Robert H. Bork; for the Washington Legal Foundation by
James A. Meyers, Garret G. Rasmussen, Daniel J. Popeo, and Richard A.
Samp; and for W. R. Hambrecht + Co., LLC, by Paul Michael Kaplan.
Briefs of amici curiae urging affirmance were filed for the State of New
York by Andrew M. Cuomo, Attorney General, Barbara D. Underwood,
Solicitor General, Daniel Smirlock, Deputy Solicitor General, Andrew D.
Bing, Assistant Solicitor General, Richard E. Grimm, and Sarah M. Hub
bard, Assistant Attorney General; and for the American Antitrust Insti
tute by Joseph Goldberg and Daniel E. Gustafson.

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in this case. See 422 U. S., at 682, 689, 691; see also United
States v. National 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 com
pany. 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 esti
mate 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 syndicate 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 generally L. Loss & J. Seligman, Funda
mentals 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 quan
tities. 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 underwriters and representa
tives of the offering firm meet potential investors and engage
in a process that the industry calls “bookbuilding.” During
this time, the underwriters and firm representatives present
information to investors about the company and the stock.
And they attempt to gauge the strength of the investors’
interest in purchasing the stock. For this purpose, under

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writers 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 specify
ing 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 commis
sion in the process.
B
In January 2002, respondents, a group of 60 investors, filed
two antitrust class-action lawsuits against petitioners, 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. Respondents’ antitrust com
plaints allege that the underwriters “abused the . . . practice
of combining into underwriting syndicates” by agreeing
among themselves to impose harmful conditions upon poten
tial 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.
These conditions, according to respondents, consist of a re
quirement that the investors pay “additional anticompetitive
charges” over and above the agreed-upon IPO share price
plus underwriting commission. In particular, these addi

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tional 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 “commit
ments 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 discounts).” 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 securities 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 commer
cial 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 Sec
ond Circuit reversed, however, and reinstated the com
plaints. 426 F. 3d 130, 170, 172 (2005). We granted the un
derwriters’ petition for certiorari. And we now reverse the
judgment of 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 provid
ing antitrust immunity), with § 601(b)(1) of the Telecommuni
cations Act of 1996, 47 U. S. C. § 152 (stating that antitrust
laws remain applicable). See also Verizon Communications
Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U. S. 398,
406–407 (2004) (analyzing the antitrust saving clause of the

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Telecommunications Act). Where regulatory statutes are
silent in respect to antitrust, however, courts must deter
mine whether, and in what respects, they implicitly preclude
application of the antitrust laws. Those determinations may
vary from statute to statute, depending upon the relation
between the antitrust 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 Phonetele, 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 “boycott[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 stand
ard, namely, that “[r]epeal [of the antitrust laws] is to be re
garded as implied only if necessary to make the Securities
Exchange Act work, and even then only to the minimum ex
tent necessary.” Ibid. And it held that the securities law
did not preclude application of the antitrust laws to the
claimed boycott insofar as the exchange 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 review par
ticular instances of enforcement of exchange rules”; that
“nothing [was] built into the regulatory scheme which per
forms the antitrust function of insuring” that rules that in

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jure competition are nonetheless “justified as furthering” le
gitimate regulatory “ends”; that the expulsion “would
clearly” violate “the Sherman Act unless justified by refer
ence to the purposes of the Securities Exchange Act”; and
that it could find no such justifying purpose where the ex
change took “anticompetitive collective 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 forbidding future
agreements. 422 U. S., at 661, and n. 3. The lawsuit was
filed at a time when regulatory attitudes toward fixed stock
broker commissions were changing. The fixed commissions
challenged in the complaint were applied during a period
when the SEC approved of the practice of fixing broker
commission rates. But Congress and the SEC had both sub
sequently 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 be
tween the antitrust and regulatory provisions.’ ” 422 U. S.,
at 682 (quoting Philadelphia Nat. Bank, supra, at 350–351).
It then held that the securities laws impliedly precluded ap
plication of the antitrust laws 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 regu
latory 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 “con

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tinuing activity” in respect to the regulation of commission
rates. Ibid. Finally, without antitrust immunity, “the ex
changes and their members” would be subject to “conflicting
standards.” Id., at 689.
This last consideration—the conflict—was complicated due
to Congress’, and the agency’s, changing views about the va
lidity of fixed commissions. As far as the past fixing of rates
was concerned, the conflict was clear: The antitrust law had
forbidden the very thing that the securities law had then
permitted, namely, an anticompetitive ratesetting process.
In respect to the future, however, the conflict was less appar
ent. That was because the SEC’s new (congressionally au
thorized) 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 plaintiff ’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 conflict
arose from the fact that the law permitted the SEC to super
vise the competitive setting of rates and to “reintroduc[e]
. . . fixed rates,” id., at 691 (emphasis added), under certain
conditions. The Court consequently wrote that “failure to
imply repeal would render nugatory the legislative provision
for regulatory agency supervision of exchange 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 to a practice that both anti
trust 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 related

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to when, how, to whom, and from whom the broker-dealers
might sell and buy mutual fund shares; and (3) to prohibit
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 conclusion,
the Court found that antitrust law (e. g., forbidding resale
price maintenance) and securities law (e. g., permitting resale
price maintenance) were in conflict. In deciding that the
latter trumped the former, the Court relied upon the same
kinds of considerations it found determinative 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 questioned”; (2) “the history of Com
mission regulations suggests no laxity in the exercise of this
authority”; and hence (3) allowing an antitrust suit to pro
ceed that is “so directly related to the SEC’s responsibilities”
would present “a substantial danger that [broker-dealers and
other defendants] would be subjected to duplicative and in
consistent standards.” NASD, 422 U. S., at 734–735.
As to the other practices alleged in the complaint (concern
ing, e. g., resale price maintenance), the Court emphasized
that (1) the securities law “vested in the SEC final authority
to determine whether and to what extent” the relevant prac
tices “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 de
termination 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 ad

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ministrative judgment that the contractual restrictions . . .
were appropriate means for combating the problems of the
industry,” id., at 728. The Court added that, in these re
spects, the SEC had engaged in “precisely the kind of admin
istrative oversight of private practices that Congress con
templated.” 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. 287 (dissenting opinion). The United States ad
vanced the same argument in Gordon. See Brief for United
States as Amicus Curiae in Gordon v. New York Stock Ex
change, 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 securities laws where that
“overlap [was] neither unusual nor unfortunate” (internal
quotation marks omitted)). Although 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 consequences,
there is a “clear repugnancy” between the securities law and
the antitrust complaint—or as we shall subsequently de
scribe the matter, whether the two are “clearly incompati
ble.” Moreover, Gordon and NASD, in finding sufficient in
compatibility to warrant an implication 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 result
ing risk that the securities and antitrust laws, if both ap
plicable, would produce conflicting guidance, requirements,

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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, con
siderably narrow our legal task. For the parties cannot
reasonably dispute the existence here of several of the con
ditions that this Court previously regarded as crucial to
finding that the securities law impliedly precludes the appli
cation 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 un
derwriting activity at issue in this case, including road shows
and bookbuilding efforts essential to the successful market
ing 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, 155a–157a
(hereinafter Brief for SEC). Thus, the antitrust 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 pos
sesses considerable power to forbid, permit, encourage, dis
courage, tolerate, limit, and otherwise regulate virtually
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 bookbuilding, solicitations

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of “indications of interest,” and communications between un
derwriting 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 manipu
lative); § 78i(a)(6) (similar); § 78j(b) (similar). Private indi
viduals 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 author
ity to regulate conduct of the general kind now at issue. It
has defined in detail, for example, what underwriters 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 Regu
lation M, 17 CFR §§ 242.100–242.105 (2006). It has brought
actions against underwriters 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 dam
ages. See, e. g., In re Initial Pub. Offering Securities Liti
gation, 241 F. Supp. 2d 281 (SDNY 2003).
The preceding considerations show that the first condition
(legal regulatory authority), the second condition (exercise
of that authority), and the fourth condition (heartland securi
ties 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 exer
cised that authority. Rather, the question before us con
cerns 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 incompatible with the SEC’s ad
ministration of the Nation’s securities laws?

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278 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING
Opinion of the Court
III
A
Given the SEC’s comprehensive authority to regulate IPO
underwriting syndicates, its active and ongoing exercise of
that authority, and the undisputed need for joint IPO under
writer activity, we do not read the complaints as attacking
the bare existence of IPO underwriting syndicates or any of
the joint activity that the SEC considers a necessary compo
nent 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 “abus[e]” of “the preexisting practice of com
bining 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 secu
rities agencies freedom to regulate agreements among syndi
cate members). Nor do we understand the complaints as
questioning underwriter agreements to fix the levels of their
commissions, whether or not the resulting price is “exces
sive.” See Gordon, 422 U. S., at 688–689 (securities law con
flicts with, and therefore precludes, antitrust attack on the
fixing of commissions where the 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 “ex
cessive” commissions. The complaints attack underwriter
efforts to collect commissions through certain practices (i. e.,
laddering, tying, collecting excessive commissions 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

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279 Cite as: 551 U. S. 264 (2007)
Opinion of the Court
conflict, they add, there is no “repugnance” or “incompatibil
ity,” and this Court may not imply that securities law pre
cludes 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 assume
that it will continue to disapprove) the conduct that the anti
trust complaints attack. Nonetheless, we cannot accept re
spondents’ conclusion. Rather, several considerations 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 problem re
mains unabated. In the present context only a fine, com
plex, detailed line separates activity that the SEC permits
or encourages (for which respondents must concede antitrust
immunity) from activity that the SEC must (and inevitably
will) forbid (and which, on respondents’ theory, should be
open to antitrust attack).
For example, in respect to “laddering” the SEC forbids an
underwriter to “[s]olici[t] customers prior to the completion
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 “bookbuilding” 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 immedi
ate aftermarket activity.” 70 Fed. Reg. 19676.

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280 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING
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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 investor
buy more shares in the immediate aftermarket (forbidden),
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 virtually perma
nent 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 obtain
an increased commission from future sales, the SEC has
sought to prohibit an underwriter “from demanding . . . an
offer from [its] customers of any payment or other consider
ation [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 serv
ices.” Ibid., and n. 108. The National Association of Secu
rities Dealers (NASD), over which the SEC exercises super
visory authority, has also proposed a rule that would prohibit
a member underwriter from “offering or threatening to with
hold” IPO shares “as consideration 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 underwriter. 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 for

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bidden, 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 anti
trust activity and evidence tending to show lawful securities
marketing activity may overlap, or prove identical. Con
sider, 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 underwriter’s insistence upon “lad
dering” 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 aftermarket
share price. See, e. g., Department of Enforcement v. Re
spondent, Disciplinary Proc. No. CAF030014 (NASD Hear
ing Panel, Mar. 3, 2006), pp. 12–13 (redacted decision), called
for review, Complaint No. CAF030014 (NASD Nat. Adjudica
tory Council, Apr. 11, 2006).
Further, antitrust plaintiffs may bring lawsuits through
out the Nation in dozens of different courts with different
nonexpert judges and different nonexpert juries. In light
of the nuanced nature of the evidentiary evaluations neces
sary to separate the permissible from the impermissible, 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 ensure
that the different courts evaluate similar fact patterns con
sistently. The result is an unusually high risk that different

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282 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING
Opinion of the Court
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 proceed
ings will be inconsistent with one another . . . ”).
Now consider these factors together—the fine securities
related lines separating the permissible from the impermissi
ble; the need for securities-related expertise (particularly to
determine whether an SEC rule is likely permanent); the
overlapping evidence from which reasonable but contradic
tory inferences may be drawn; and the risk of inconsistent
court results. Together these factors mean there is no prac
tical 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 mis
takes in this respect. And the threat of antitrust mistakes,
i. e., results that stray outside the narrow bounds that plain
tiffs seek to set, means that underwriters must act in ways
that will avoid not simply 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 en
courages (but which they fear could lead to an antitrust law
suit 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 men
tioned 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 marketing of IPOs, along with
the important role IPOs themselves play in relation to the
effective functioning of capital markets, means that the
securities-related costs of mistakes is unusually high. It is
no wonder, then, that the SEC told the District Court (con

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283 Cite as: 551 U. S. 264 (2007)
Opinion of the Court
sistent with what the Government tells us here) that a “fail
ure 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 “chilling effect” on “lawful joint activities . . . of tre
mendous importance to the economy of the country.” Brief
for SEC 39–40, 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 distinguish
the encouraged and permissible from the forbidden; where
the threat of antitrust lawsuits, through error and disin
centive, could seriously alter underwriter conduct in unde
sirable 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 law
suit is unusually small. For one thing, the SEC actively en
forces the rules and regulations that forbid the conduct in
question. For another, as we have said, investors harmed
by underwriters’ unlawful practices may bring lawsuits and
obtain damages under the securities law. See supra, at 276–
277. Finally, the SEC is itself required 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 anticompetitive behavior. See 15 U. S. C.
§ 77b(b) (instructing the SEC to consider, “in addition to the
protection of investors, whether the action will promote effi
ciency, competition, 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 pro
vided by antitrust enforcement will tend to be small” where
other laws and regulatory structures are “designed to deter
and remedy anticompetitive harm”).

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284 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING
Opinion of the Court
We also note that Congress, in an effort to weed out un
meritorious 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 complaint in antitrust
clothing. See generally Private Securities Litigation Re
form Act of 1995, 109 Stat. 737; Securities Litigation Uniform
Standards Act of 1998, 112 Stat. 3227.
In sum, an antitrust action in this context is accompanied
by a substantial risk of injury to the securities markets and
by a diminished need for antitrust enforcement to address
anticompetitive conduct. Together these considerations in
dicate 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 recognizing
the conflict, suggests a procedural device that he believes
will avoid it (in effect, a compromise between the differing
positions that the SEC and Antitrust Division of the Depart
ment 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 preclusion 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 in
tertwined.” See Brief for United States as Amicus Curiae
9, 26. 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 under
writers, say, overtly to divide markets.

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285 Cite as: 551 U. S. 264 (2007)
Stevens, J., concurring in judgment
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 sepa
rating securities-permitted from securities-forbidden con
duct, 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 infer
ences 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 is
sues. (We also note that market divisions appear to fall well
outside the heartland of activities related to the underwrit
ing 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 adequate
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 applica
tion 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.
Justice Stevens, concurring in the judgment.
When investment bankers cooperate in underwriting an
initial public offering (IPO), they increase the amount of cap
ital available to firms producing goods and services and make
additional securities available for purchase. By agglomerat
ing networks of investors and spreading the risk of overvalu
ation, syndicates make positive contributions to the economy
that could not be achieved through independent action. See
426 F. 3d 130, 137–138 (CA2 2005). In my view, agreements

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286 CREDIT SUISSE SECURITIES (USA) LLC v. BILLING
Stevens, J., concurring in judgment
among underwriters on how best to market IPOs, including
agreements on price and other terms of sale to initial inves
tors, 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 mul
titude of other securities traded in a free market. To sug
gest 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 the participating
underwriters and dealers intend it to have any. On the con
trary, it is the general market prices of securities of compa
rable rating and quality which control 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 mar
ket”); see also Hovenkamp, 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
themselves, 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 inves
tors. 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 “tying”
described in the complaints constitute vertical restraints
that violate either the Sherman Act or § 2(c) of the
Robinson-Patman Act, 15 U. S. C. § 13(c). Given the magni
tude of the market these practices are alleged to have influ
enced, I think it obvious as a matter of law that there has

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Thomas, J., dissenting
been no injury to any relevant competition. Unlike in Bell
Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), there is no
need to engage in discovery to determine whether there is
any merit to the plaintiffs’ claims. See id., at 593–595 (Ste
vens, J., dissenting).
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 under
writing syndicates, which are recognized to be completely
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’ alleged con
duct does not violate the antitrust laws, rather 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 282,
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.
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 271. 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 ex
isting 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 at law or in equity.” 15 U. S. C. § 77p(a). In parallel

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Thomas, J., dissenting
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.” Herman & 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 “rights and
remedies” that existed “at law or in equity” by the Con
gresses that enacted that Securities Act and the Securities
Exchange Act in the early 1930’s. See § 77p; § 78bb. There
fore, both statutes explicitly save the very remedies the
Court holds to be impliedly precluded. There is no convinc
ing 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 pre
clude application of the antitrust laws.” Ante, at 270; 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) (“ ‘[N]othing
in this Act or the amendments made by this Act shall be
construed to modify, impair, or supersede the applicability of
1 The Court suggests that the argument advanced in my opinion was
not preserved by respondents. See ante, at 275. Respondents’ principal
contention in the Court of Appeals below was that “[t]he federal securities
laws do not expressly immunize Defendants’ alleged conduct from prosecu
tion 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 con
sider 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”).

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Thomas, J., dissenting
any of the antitrust laws’ ” (quoting Telecommunications Act
of 1996, § 601(b)(1), 110 Stat. 143, note following 47 U. S. C.
§ 152)). But the mere existence of targeted saving clauses
does not demonstrate—or even suggest—that antitrust rem
edies are not included within the “any and all” other reme
dies 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 provisions that encompass antitrust and
other remedies. Surely Congress is not required to enumer
ate every cause of action—state and federal—that may be
brought. When Congress wants to preserve all other reme
dies, 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 Peti
tioners 33, n. 5 (“[N]either provision was found to bar immu
nity 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 Ex
change, 373 U. S. 341 (1963), Gordon, or NASD—majority or
dissent—offered any analysis of the saving clauses. Omit
ted reasoning has little claim to precedential value. Absent
any indication that these omissions were the product of rea
soned analysis instead of inadvertent oversight, I would not
allow the Court’s prior silence on this issue to erect a perpet
ual bar to arguments based on a full reading of the statute’s
relevant text.
Finally, it might be argued that the saving clauses pre
serve only state-law rights and remedies. This argument
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 remedies. Other pro
visions in both Acts, including a later sentence in the sec
tion containing the Securities Exchange Act’s saving clause,

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suggest that Congress explicitly referred 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 can
not 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’ antitrust suits
must proceed. Accordingly, we do not need to reconcile any
conflict between the securities laws and the antitrust laws.
I respectfully dissent.
2 The Court’s suggestion that the clauses were intended to save only
securities-related rights and remedies is subject to many of the same criti
cisms. See ante, at 275. 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.