In U.S. Futures Exchange LLC et al. v. Board of Trade of the City of Chicago et al., Northern District of Illinois Judge James B. Zagel denied, in part, a motion for summary judgment, filed by Chicago Board of Trade and Chicago Mercantile Exchange, Inc., thereby allowing part of the antitrust suit against them to proceed. In this suit, plaintiff U.S. Futures Exchange LLC, accuses CBOT and CME of conspiring to prevent it from creating a competing exchange. In its motion for summary judgment defendants argued that USFE cannot show injury from the alleged anti-competitive conduct when trading is up and fees are down in the commodities market. The court rejected this argument and held that the relevant consideration in determining whether plaintiff has antitrust standing is the comparison between the U.S. Treasury futures market as it exists today and the market that would have existed had defendants’ alleged anti-competitive conduct never taken place.
However, the court dismissed USFE’s claim that CBOT and CME conducted a misinformation campaign to prevent USFE from obtaining the U.S. Commodity Futures Trading Commission’s approval to launch its exchange. The court held that the defendants’ statements to Congress do not necessarily play a role in this situation because Congress was not involved in approving USFE’s designated contract market application. The CFTC’s decision on approving the application involved its own discretionary authority and there are too many considerations in evaluating such applications.