In Re: Stock Exchanges Options Trading Antitrust Litigation

Plaintiffs in these class action suits, which were consolidated for pretrial purposes in the United States District Court for the Southern District of New York, appeal from a judgment of that court, Richard Conway Casey, Judge, dismissing their claims that the conduct of defendants American Stock Exchange, Inc. ("AMEX"), et al., in restricting stock-exchange listings of certain securities for options trading violated § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (2000) ("Sherman Act"). The district court granted summary judgment in favor of defendants, ruling that the Sherman Act, insofar as it might have applicability to the listing and trading of options on securities exchanges regulated by the Securities and Exchange Commission ("SEC" or "Commission"), has been impliedly repealed by the Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq. (2000) ("Exchange Act"). Plaintiffs also appeal from a post-judgment order of the district court, ruling that the implied repeal of the Sherman Act with respect to plaintiffs' claims deprived the court of subject matter jurisdiction to entertain motions, made under Fed. R.Civ.P. 23(e) prior to the court's ruling on the motions for summary judgment, for judicial approval of settlement agreements entered into between plaintiffs and certain of the defendants. On appeal, plaintiffs contend principally that the district court erred (a) in holding that the Sherman Act's application to restrictions on options listing and trading is impliedly repealed by the Exchange Act, and (b) in ruling that the court lacked jurisdiction to approve the proposed settlements of these class actions. For the reasons that follow, we affirm the dismissal of the antitrust claims, but we vacate the postjudgment order and remand for further proceedings with respect to the settlement agreements.

The present litigation involves the trading of equity options on various stock exchanges. The facts material to the district court rulings that are the subject of this appeal are not in dispute.

A. The Complaints, the Motions To Dismiss, and the History of SEC Regulation of Options Trading

Plaintiffs are persons who purchased equity options after December 31, 1994. Defendants are AMEX, the Chicago Board Options Exchange, Inc. ("CBOE"), the New York Stock Exchange, Inc. ("NYSE"), the Pacific Stock Exchange, Inc. ("Pacific Exchange"), the Philadelphia Stock Exchange, Inc. ("Philadelphia Exchange") (collectively "the Exchanges"), and members of the Exchanges that acted as market makers and specialists in options trading (the "market maker defendants"). In early 1999, various plaintiffs commenced more than 20 class actions alleging that defendants had conspired to restrict the listing and trading of particular options to one stock exchange at a time, thereby restraining trade in such options in violation of § 1 of the Sherman Act.

The Judicial Panel on Multidistrict Litigation transferred the actions to the Southern District of New York for consolidated pretrial proceedings. A consolidated complaint was filed, alleging antitrust violations as described above and seeking monetary and injunctive relief. In January 2000, the Exchanges, joined by the market maker defendants, moved pursuant to Fed.R.Civ.P. 12(b)(6) for dismissal of the consolidated complaint on the ground, inter alia, that Congress had impliedly repealed the antitrust laws with respect to the listing and trading of options by empowering the SEC to regulate those matters.

The history of the SEC's regulation of options trading on securities exchanges is undisputed and is set forth in detail in the Opinion and Order of the district court dated February 14, 2001, which dismissed the antitrust claims, see In re Stock Exchanges Options Trading Antitrust Litigation, 99 Civ. 962, 2001 WL 128325 (S.D.N.Y. Feb.15, 2001) ("District Court Opinion" or "February 14 Opinion"). The course of that regulation is summarized here.

The trading of options on national exchanges began in 1973 when CBOE became registered as a national exchange; such trading was regulated in Rule 9b-1, promulgated by the Commission under the Exchange Act, see SEC Rule 9b-1, 17 C.F.R. § 240.9b-1. When other exchanges proposed to list options for trading, the SEC commenced a study of the practice, including the question of whether the trading of options on a given class of securities should be allowed to proceed on multiple exchanges. See SEC Release No. 10490, 1973 SEC LEXIS 2349, at *1, *9-*10 (Nov. 14, 1973). After a public hearing, the Commission concluded in 1974 that additional study was required before allowing, inter alia, "multiple exchange option trading." SEC Release No. 11144, 1974 SEC LEXIS 2108, at *4 (Dec. 19, 1974). At that time, the SEC authorized AMEX to allow options trading, and it noted that AMEX did not intend to allow dual trading. See id. at *5.

In 1976, the SEC allowed CBOE to list options that were already traded on another exchange. See generally SEC Release No. 26809, 1989 SEC LEXIS 828, at *5 (May 11, 1989). It also allowed the Pacific Exchange to commence options trading and noted that that Exchange planned to list options that were being traded on other exchanges. See SEC Release No. 12283, 1976 SEC LEXIS 2040, at *3 (Mar. 30, 1976). In early 1977, the Commission invited public comment on multiple listing, see SEC Release No. 13325, 1977 SEC LEXIS 2290, at *1 (Mar. 3, 1977), and expressed concern that, in the course of trading options listed on more than one exchange, floor members of certain exchanges might be violating the Exchange Act, see SEC Release No. 13433, 1977 SEC LEXIS 2036, at *1 (Apr. 5, 1977). Later in 1977, the Commission requested that the exchanges voluntarily cease the listing of new options classes pending a comprehensive SEC review of options trading. See SEC Release No. 13760, 1977 SEC LEXIS 1251, at *1 (July 18, 1977). It proposed to issue a rule temporarily barring such new listings if the exchanges would not suspend them voluntarily; the rule became unnecessary because the exchanges complied voluntarily, see SEC Release No. 15026, 1978 SEC LEXIS 997, at *3 (Aug. 3, 1978), and continued to comply until the SEC lifted the moratorium in 1980, see SEC Release No. 16701, 1980 SEC LEXIS 1784, at *1 (Mar. 26, 1980) ("SEC Mar. 26, 1980 Release").

In 1980, the Commission permitted the resumption of new listings and trading generally, but it stated that it needed to consider further

whether to continue its current policy of restricting multiple trading in exchange-traded options or whether to permit a more unfettered competitive environment in which an options exchange would be free to trade any eligible options class, subject to the adequacy of its surveillance and other self-regulatory capabilities.

Id. at *22-*23. As the district court noted,

[t]he SEC identified a number of possible adverse effects from multiple trading, including (i) market fragmentation; (ii) the likelihood that meaningful competition among market centers may be, at best, transitory because of member firms' automatic order routing practices; and (iii) the potential negative impact on the financial position of the regional exchanges. [SEC Mar. 26, 1980 Release] at *28-*30. The Commission believed that some of its concerns might be alleviated by the development of market integration facilities, and expressed an inclination toward multiple trading. However, the SEC deferred further action, requesting that the exchanges consider "whether, and to what extent, the development of market integration facilities would minimize concerns regarding market fragmentation and maximize competitive opportunities in the options markets." Id. at *32.

District Court Opinion, 2001 WL 128325, at *4.

On May 30, 1980, the SEC approved a plan, formulated by the exchanges jointly, for the single, or exclusive, listing of any new equity option. See SEC Release No. 16863, 1980 SEC LEXIS 1378, at *1-*2 (May 30, 1980). The new listings were to be allocated among the several exchanges on a rotating basis. See id. While permitting multiple listings of other types of options and of over-the-counter securities, the Commission remained concerned that "unlimited multiple trading of equity options at this time might result in significant deleterious str[uc]tural changes in the markets, with a resultant decrease in competition in other areas such as services relating to execution and clearing functions." SEC Release No. 17577, 1981 SEC LEXIS 1976, at *17 (Feb. 26, 1981) (footnote omitted).

In 1987, the Commission proposed the adoption of a multiple-trading rule and announced the commencement of a proceeding to consider, inter alia, whether to permit such multiple-market trading. See SEC Release No. 34-24613, 1987 SEC LEXIS 4394, at *5 (June 18, 1987). In 1989, the Commission announced the adoption of Rule 19c-5, which it described as allowing "an exchange unilaterally [to] decide, as a business matter, not to multiply trade any particular option," but prohibiting an exchange from "reach[ing] an agreement with one or more other exchanges to refrain from multiple trading." SEC Release No. 34-26870, 1989 SEC LEXIS 941, at *39 (May 26, 1989). Multiple listing was to be implemented gradually. Rule 19c-5 provided that, as of January 22, 1990, an exchange was to be prohibited from adopting any rule, policy, or practice that limited its ability to list any equity options that had first been listed on an exchange on or after that date, see SEC Rule 19c-5(a)(1), 17 C.F.R. § 240.19c-5(a)(1) (2002); from January 22, 1990, to January 21, 1991, an exchange was to be prohibited from adopting such a rule, policy, or practice with respect to 10 classes of options that had been listed on another exchange prior to January 22, 1990, see SEC Rule 19c-5(a)(2), 17 C.F.R. § 240.19c-5(a)(2) (2002); and effective January 21, 1991, an exchange was to be prohibited from adopting such a rule, policy, or practice with respect to any equity options, see SEC Rule 19c-5(a)(3), 17 C.F.R. § 240.19c-5(a)(3) (2002) ("[N]o rule, stated policy, practice, or interpretation of this exchange shall prohibit or condition, or be construed to prohibit or condition or otherwise limit, directly or indirectly, the ability of this exchange to list any stock options class because that options class is listed on another options exchange.").

Notwithstanding the terms of Rule 19c-5, the SEC, shortly before the Rule was to become effective, asked exchanges to refrain from the multiple listing of such options as had previously been listed only singly. (See, e.g., Letter from SEC Chairman Richard C. Breeden to AMEX Chairman James R. Jones, dated January 9, 1990, at 3.) Such requests were renewed over the next 2½ years. (See, e.g., Letter from SEC Chairman Richard C. Breeden to CBOE Chairman Alger B. Chapman, dated July 31, 1991, at 2 ("As you know, I have repeatedly asked the options exchanges not to commence multiple listing under Rule 19c-5" pending the development of a cost-effective linkage mechanism); Letter from SEC Chairman Richard C. Breeden to AMEX Chairman James R. Jones, dated June 30, 1992, at 4 ("[A]lthough Rule 19c-5 remains in effect, I would ask you to extend the application of the voluntary moratorium until November 20, 1992, to provide the exchanges adequate time to make any rule changes or operational enhancements necessary to implement [a proposed] Phase-In Plan.").)

The SEC's moratorium on multiple listing was lifted beginning in November 1992. By the end of 1994, all equity options were eligible for multiple listing. The Commission had noted, however, that it retained ultimate authority over such listings:

Section 19(h) [of the Exchange Act] provides the Commission with the authority to take action against an exchange if the Commission finds that the exchange is in violation of the [Exchange] Act, the rules and regulations thereunder, or its own rules. Accordingly, notwithstanding the [phase-in] Plan, the Commission has the authority to prevent an exchange from listing a new option if the Commission finds that the option does not meet the exchange's initial options listing standards.

SEC Release No. 34-29698, 1991 SEC LEXIS 1864, at *12 (Sept. 17, 1991). In 1997, the SEC exercised this authority to approve the sale by NYSE of its options business to CBOE. The SEC rejected assertions that the sale tended to create a monopoly, stating that it "would regard any anticompetitive arrangements in the trading of options to be of very serious concern, but [that] after reviewing the proposed transfer closely, the Commission disagrees with these assertions." SEC Release No. 34-38542, 1997 SEC LEXIS 900, at *21 (Apr. 23, 1997).

As noted in the District Court Opinion, the Commission since 1997 has

continue[d] to oversee the options markets and to approve coordinated activity by the exchanges. Pursuant to Rules 12d1-3 and 12d2-2, respectively, the SEC is informed each time an exchange proposes to list or delist an equity options class. The SEC recently authorized the exchanges to act jointly with respect to a number of issues, such as (1) planning strategies for options quote message traffic, (2) developing an intermarket linkage plan for multiply traded options and (3) phasing-in the implementation of decimal pricing.

District Court Opinion, 2001 WL 128325, at *6 (citing SEC Release No. 34-41843, 1999 SEC LEXIS 1807, at *1 (Sept. 8, 1999); SEC Release No. 34-42029, 1999 SEC LEXIS 2215, at *1 (Oct. 19, 1999); SEC Release No. 34-42360, [2000] SEC LEXIS 114, at *1 (Jan. 28, 2000). Indeed, the SEC, as well as the United States Department of Justice ("DOJ"), investigated assertions of antitrust violations such as those alleged in the present class actions. In September 2000, the SEC found that certain exchanges had improperly followed a course of conduct that limited multiple listing. See, e.g., SEC Release No. 43268, 2000 SEC LEXIS 1881, at *8 (Sept. 11, 2000) ("Member firms of certain of the respondent exchanges made proposals to multiply list options. In order to avoid or defer multiple listing, the respondent exchanges rebuffed or denied these proposals without an adequate basis in their rules and, in some instances, threatened or harassed member firms who made the proposals."). The exchanges in question were censured, and they agreed, inter alia, to change certain procedures that had facilitated exclusivity of listing. Id. at *15.

In connection with defendants' motions to dismiss the consolidated complaint on the ground that the SEC's authorized regulation of the listing and trading of options constituted an implied repeal of the Sherman Act with respect to such matters, the DOJ submitted to the district court a brief on behalf of the United States as amicus curiae, arguing that implied repeal is not warranted. The DOJ's brief stated that

[t]he court can, and should, hold that the alleged conduct, which as alleged contravenes both SEC rule and the Sherman Act, is, like other conspiracies in restraint of trade, subject to the federal antitrust laws. To avoid any possible future conflict with SEC regulatory policy, the court should consider including in any injunction language permitting otherwise enjoined conduct should the SEC, acting pursuant to statutory authorization, permit such conduct in the future.

....

The court should hold that there is no implied repeal of the antitrust laws with respect to alleged conduct prohibited by SEC rule.

(DOJ amicus curiae brief to the district court, dated June 1, 2000, at 12-13.)

The district court invited the SEC as well to submit its views as amicus curiae. The Commission complied, in a brief in which it concurred in the view of the DOJ "that the federal antitrust laws are not impliedly repealed with respect to the conduct alleged in these cases, if it occurred." (SEC amicus curiae brief to the district court, dated June 16, 2000, at 2.) The Commission stated that

[t]his is an unusual case, in which the Commission has addressed the precise conduct at issue and has decided to prohibit it in order to provide competition among the exchanges. It does not present a situation where, in our view, the antitrust laws are impliedly repealed, such as where the securities laws authorize the conduct or the Commission has approved or permitted it, either expressly or implicitly — for example, by failing to act with respect to conduct subject to the Commission's pervasive regulation.

(Id. at 2-3.)

Thereafter, the district court notified the parties that it would convert defendants' Rule 12(b)(6) motions, to the extent that they were based on the theory of implied repeal, to motions for summary judgment. The court invited the parties to file additional papers and indicated that it would decide the implied repeal issue first, which might dispose of the entire antitrust dispute. Oral argument of the motions was heard in November 2000.

In the meantime, plaintiffs had reached settlement agreements with certain of the defendants. In May 2000, plaintiffs entered into agreements with the Pacific Exchange and the Philadelphia Exchange. In September 2000, plaintiffs entered into agreements with AMEX, CBOE, and 18 of the market maker defendants. The agreements, with certain caveats, called for the settling defendants to pay the plaintiff class a total of more than $84 million.

As court approval is required for the settlement of a class action, see Fed. R.Civ.P. 23(e), plaintiffs and those defendants promptly moved in the district court for approval of the respective settlement agreements. In October 2000, the court delayed consideration of the approval motions, stating that it would first determine whether the Sherman Act, to the extent it was invoked in these actions, had been impliedly repealed by the Exchange Act. The court indicated that it would consider the requests for preliminary approval of the settlement agreements after it decided the summary judgment motions.

In its February 14, 2001 opinion, the district court granted defendants' summary judgment motions on the ground of implied repeal. The court described the above course of SEC regulation and noted that although the Commission's view had varied considerably as to whether or not multiple listing and trading of equity options should be allowed or prohibited, Commission regulation had been pervasive. The court concluded that, based on the principles set out in Gordon v. New York Stock Exchange, Inc., 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975), the Exchange Act impliedly repealed the Sherman Act with respect to the listing and trading of equity options on securities exchanges regulated by the SEC. See District Court Opinion, 2001 WL 128325, at *7.

Following issuance of the February 14 Opinion and prior to the entry of a judgment, plaintiffs and some of the settling defendants asked the district court to set a date for argument of the pending Rule 23(e) motions for preliminary judicial approval of the settlement agreements. Motions for such approval had first been filed in mid-2000. Without setting a date to hear those motions, the court entered a final judgment dismissing the consolidated complaint on March 2, 2001 ("March 2001 Judgment" or "Judgment").

By order dated March 6, 2001, the court scheduled argument on the motions for approval of the proposed settlements. In connection with those motions, plaintiffs sought clarification of the March 2001 Judgment. Although the Judgment itself indicated merely that summary judgment was granted, the district court in its February 14 Opinion had stated:

This Court has no jurisdiction to determine whether [plaintiffs'] allegations have any substantive merit. Because the listing and trading of options classes falls within the purview of the regulatory scheme devised by Congress to govern the securities industry, and the active exercise of that authority by the Securities and Exchange Commission... conflicts with the operation of the antitrust laws, the Court cannot proceed to adjudicate this matter.

District Court Opinion, 2001 WL 128325, at *1 (emphasis added). Accordingly, on March 16, 2001, plaintiffs moved pursuant to Fed.R.Civ.P. 59(e) for an amendment of the Judgment, to

clarify[] whether the March [2001] Judgment was intended by the Court to be a dismissal for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(h)(3), or a dismissal on the merits based upon the affirmative defense of the implied repeal doctrine pursuant to Fed.R.Civ.P. 56(b). If it is the latter, plaintiffs respectfully request that the Court also amend the March [2001] Judgment to provide that it shall only apply to those defendants who had not entered into an agreement to settle all claims asserted against them prior to the entry of the judgment on March 2, 2001 ... unless the Court subsequently enters an Order denying final approval of the proposed settlements pursuant to Fed.R.Civ.P. 23(e) which becomes final after the exhaustion of any appeals, in which event, the March [2001] Judgment would then apply to all of the defendants.

(Plaintiffs' Motion To Alter or Amend Judgment Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, at 1.)

In an Opinion and Order dated April 24, 2001, reported at 171 F.Supp.2d 174 (2001) ("April Order"), the district court denied the motion to alter or amend the March 2001 Judgment and refused to approve the settlement agreements on the ground that, "by entering summary judgment in favor of the defendants on the implied repeal issue, this Court divested itself of subject matter jurisdiction over plaintiffs' antitrust claims." 171 F.Supp.2d at 177. The court concluded that it thus lacked jurisdiction to entertain the motions for approval of the class action settlements:

Plaintiffs are correct that federal subject matter jurisdiction was appropriate at the outset of the litigation because at that time a dispute existed as to whether the antitrust laws applied to plaintiffs' claims. However, through its Summary Judgment Order, the Court resolved this issue by holding that the antitrust laws were impliedly repealed with respect to the defendants' conduct and dismissed the case. At that point, there was no longer any cause of action over which the Court could exercise jurisdiction.

April Order, 171 F.Supp.2d at 178 (emphasis in original).

These appeals followed.

On appeal, plaintiffs contend principally that the district court's application of the doctrine of implied repeal to the allegations of this case was erroneous because there is no conflict between the Exchange Act and the Sherman Act since agreements to restrict the listing and trading of equity options to one exchange at a time are prohibited by both the Sherman Act and SEC Rule 19c-5. As to their motions for preliminary court approval of the proposed settlement agreements, plaintiffs contend, inter alia, that the district court erred in concluding that the Exchange Act's implied repeal of the Sherman Act deprived the court of jurisdiction to entertain the approval motions. For the reasons that follow, we conclude that the district court's ruling of implied repeal was correct; but we disagree with its conclusion that that ruling deprived it of subject matter jurisdiction over the case.

"It is a cardinal principle of construction that repeals by implication are not favored." United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181 (1939). The basic framework for analysis of whether federal securities laws impliedly repeal § 1 of the Sherman Act with respect to particular conduct, i.e., whether a defendant is entitled to immunity from liability under the antitrust laws for that conduct, has been set out by the Supreme Court in Silver v. New York Stock Exchange, 373 U.S. 341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963), Gordon v. New York Stock Exchange, Inc., 422 U.S. 659, 95 S.Ct. 2598, 45 L.Ed.2d 463 (1975) ("Gordon"), and United States v. National Association of Securities Dealers, Inc., 422 U.S. 694, 95 S.Ct. 2427, 45 L.Ed.2d 486 (1975) ("NASD").

In Silver, the Court established the baseline principle that repeal of the antitrust laws by the Exchange Act is to be "implied only if necessary to make th[at] Act work, and even then only to the minimum extent necessary." 373 U.S. at 357, 83 S.Ct. 1246. Silver involved an antitrust challenge to an order, issued by NYSE pursuant to its Constitution and existing rules, requiring its members to remove any private direct telephone connections they had with offices of nonmember firms. The Court concluded that the Exchange Act did not impliedly repeal the antitrust laws with respect to that NYSE order because, although the Exchange Act gave the SEC

the power to request exchanges to make changes in their rules, § 19(b), 15 U.S.C. § 78s(b), and impliedly, therefore, to disapprove any rules adopted by an exchange, see also § 6(a)(4), 15 U.S.C. § 78f(a)(4), it d[id] not give the Commission jurisdiction to review particular instances of enforcement of exchange rules.

Silver, 373 U.S. at 357, 83 S.Ct. 1246. Because the SEC lacked the authority to regulate the conduct challenged in the complaint, the Court concluded that there was no potential for the antitrust laws to overlap or conflict with the regulatory power of the SEC. See id. at 358, 83 S.Ct. 1246. Further, given the absence of SEC authority, there was a need for applicability of the antitrust laws, for if those laws were deemed inapplicable the challenged conduct would be unreviewable. See id. at 358-59, 83 S.Ct. 1246. The Court stated that

[a]pplicability of the antitrust laws ... rests on the need for vindication of their positive aim of insuring competitive freedom. Denial of their applicability would defeat the congressional policy reflected in the antitrust laws without serving the policy of the Securities Exchange Act. Should review of exchange self-regulation be provided through a vehicle other than the antitrust laws, a different case as to antitrust exemption would be presented.

Id. at 360, 83 S.Ct. 1246 (emphases added).

Such a "`different case'" was presented in Gordon, see 422 U.S. at 685, 95 S.Ct. 2598. The conduct challenged there was the practice of securities exchanges and their members of using fixed rates of commission; and unlike the conduct at issue in Silver, the fixing of commission rates was subject to ample SEC regulatory authority. The Supreme Court in Gordon reiterated the principle enunciated in Silver that repeal of the antitrust laws by the Exchange Act is to be "implied only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary," 422 U.S. at 683, 95 S.Ct. 2598 (internal quotation marks omitted), and proceeded to explore the history of the rate agreements, the statutory authority conferred on the SEC to regulate commission-rate practices, and the agency's exercise of that authority. The Court noted that

the commission rate practices of the exchanges have been subjected to the scrutiny and approval of the SEC. If antitrust courts were to impose different standards or requirements, the exchanges might find themselves unable to proceed without violation of the mandate of the courts or of the SEC. Such different standards are likely to result because the sole aim of antitrust legislation is to protect competition, whereas the SEC must consider, in addition, the economic health of the investors, the exchanges, and the securities industry. Given the expertise of the SEC, the confidence the Congress has placed in the agency, and the active roles the SEC and the Congress have taken, permitting courts throughout the country to conduct their own antitrust proceedings would conflict with the regulatory scheme authorized by Congress rather than supplement that scheme.

.... Although SEC action in the early years appears to have been minimal, it is clear that since 1959 the SEC has been engaged in deep and serious study of the commission rate practices of the exchanges and of their members, and has required major changes in those practices. The ultimate result of this long-term study has been a regulatory decree requiring abolition of the practice of fixed rates of commission as of May 1, 1975, and the institution of full and complete competition.

Gordon, 422 U.S. at 689-90, 95 S.Ct. 2598 (footnotes omitted) (emphases added).

The Gordon Court also noted that although Congress had subsequently enacted a statutory section adopting the SEC regulatory provision banning fixed rates, Congress also explicitly provided that the SEC, under certain circumstances and upon the making of specified findings, was empowered to allow the resumption of fixed rates.