trueEX, LLC v. MarkitSERV Ltd.
trueEX, LLC v. MarkitSERV Ltd.
Opinion of the Court
MEMORANDUM OPINION
This matter is before the Court on trueEX’s and truePTS’s (collectively, “plaintiffs”) motion for a preliminary injunction to prevent MarkitSERV Limited and MarkitSERV, LLC (collectively, “MarkitSERV”) from barring plaintiffs’ ac
Facts
This case centers around a business’relationship between two entities operating in the world of interest rate swaps (“IRS”), a type of financial derivative.
I. The Swaps Here at Issue
A. The Basics
The term'“derivative,” as it is used in today’s financial world, refers to a financial instrument that derives its value from the price of an underlying instrument or index. Among the different types of derivatives are swaps, instruments whereby two coun-terparties agree to exchange cash, flows on two financial instruments over a specific period of time.
B. Interest Rate Simps
An IRS is a particular form of swap.
In the most common type of IRS swap, Counterparty A pays a fixed interest rate to Counterparty B which, in return, pays a floating interest rate based on a benchmark such as LIBOR.
Until the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”), IRS traded in unregulated over-the-counter (“OTC”) markets. Most IRS were traded on a bilateral, principal-to-principal basis with the ultimate counterparty being the entity with which the trade was executed. Many trades were intermediated by brokers. Dodd-Frank, however, introduced new regulatory requirements with the goal of increasing transparency in the OTC derivatives markets.
A. Swap Execution Facilities
In Dodd-Frank, Congress mandated that certain IRS trade only on platforms called swap execution facilities (“SEFs”).
Dodd-Frank requires that IRS that must be traded on SEFs be “cleared,” i.e., “submitted to a central counterparty clearinghouse that functions as an intermediary between buyer and seller to reconcile transactions and reduce risk.”
Dodd-Frank requires also that SEFs report trade pricing and volume information to swap data repositories (“SDRs”), which provide central facilities for swap data reporting and recordkeeping.
B. Trade Processing
After two counterparties agree upon an IRS trade that is required to be cleared, details about that trade must be reported to four entities in compliance with Dodd-Frank: the clearinghouse that clears the trade, the two counterparties to the trade, and the SDR. Completion of that reporting is a key aspect of a process known as trade processing.
Ill MarkitSERV
MarkitSERV is an electronic trade confirmation network for OTC derivatives.
A. Formation of MarkitSERV
MarkitSERVs predecessor, SwapsWire Limited, was formed in 2000 by a consortium of leading dealer banks as an electronic trade confirmation network for the OTC derivatives market.
B. MarkitSERV’s Dominant Market Position
MarkitSERV is the sole provider of IRS trade processing for (1) IRS transactions between dealers, (2) cleared, direct trades that are not required to be traded on SEFs, and (3) uncleared swaps (a limited category of IRS that need not be cleared).
MarkitSERV concedes for this motion only that IRS trade processing is a relevant market for antitrust purposes
Thé only transactions for which Markit-SERV does- not control every step of post-trade processing are trades between dealers and buy-side customers that are executed on the SEFs operated by Bloom-berg, TradeWeb, and trueEX.
C. How MarkitSERV Processes Trades
When customers choose MarkitSERV to perform trade processing, MarkitSERV “will simultaneously submit the trade to the clearinghouse for intermediation, to the two counterparties!!,] and to the SDR using an automated workflow- called ‘straight-through-processing’
[ (“STP”) ].”
In addition to its . own trade-processing services, MarkitSERV facilitates SEFs’ trade processing through a “drop copy” workflow. For example, if a customer executes a trade on an SEF, it' in some circumstances may elect to have the SEF process that trade too. When the customer chooses -to use the SEF for trade processing, the SEF “delivers the trade details directly to the clearinghouse and SDR, and simultaneously gives (or ‘drops’) a copy of the trade to MarkitSERV, which then uses its network to redistribute the trade confirmation to the counterparties.”
TV. trueEX’s Relationship with Markit-SERV
A. The Broker Terms Agreement
As discussed above, trueEX is an SEF for IRS trades that has been active since April 2014. In addition to trade execution, trueEX provides certain post-trade processing services to its clients. Like the other IRS SEFs, however, trueEX does not have direct communication lines to all of the entities that trade on its platform. Thus, in order to process trades using STP for clients with which it does not have a direct connection, trueEX requires electronic access to those clients’ books and records through other means.
trueEX approached MarkitSERV to solve this STP connectivity problem. In due course, the parties entered into a contract, referred to as the Broker Terms Agreement (“BTA”),
In cases where trueEX has built a communication pipeline to and has an APÍ with a trader, trueEX does not need to rely on MarkitSERV’s network for STP.
B. trueEX’s Development oftruePTS
In December 2015, trueEX announced that it was working on a new IRS trade processing business.
truePTS now “is still in the developmental stage.”
C. MarkitSERV Terminates the BTA
Meanwhile, MarkitSERV concluded that trueEX “was seeking a fundamental shift in the nature of [their] relationship in order to facilitate the development of its new business,” truePTS.
Needless to say, plaintiffs dispute Mark-itSERV’s characterization of the events leading to the termination of the BTA. In their view, MarkitSERV’s termination was
During another meeting, according to Mr. Hirani, MarkitSERV’s chief executive officer, Brad Levy, assured trueEX that it would not cut off trueEX’s STP connectivity on May 14, 2017, the date the termination of the BTA was to go into effect.
After the parties were unable to reach a new agreement, MarkitSERV, on May 8, 2017, “advised approximately 19 customers that [it was] terminating [its] relationship with [t]rueEX as of May 15”
D. Threatened Impact of Termination on Plaintiffs
1. trueEX
true EX asserts that it “cannot survive as a business without connectivity to MarkitSERV’s network.”
Additionally, MarkitSERV asserts that “[i]n insisting that it is dependent on MarkitSERVs network, [t]rueEX both understates the investment MarkitSERV has made in building its communications network and overstates the burden [trueEX] faces in building connectivity to the remaining dealers for whom it uses Markit-SERV’s drop copy function.”
trueEX claims that MarkitSERV “misrepresents and understates the importance of drop-copy to trueEX’s business.”
“105 clients that have agreements in place to trade on trueEX’s platform: 24 dealers and 81 buy-side clients. With respect to dealers:
“a. Of the 24 dealers that have signed up with trueEX, all but three, or 88%, require Markit-SERV connectivity for transactions in at least one currency.
“b. Of those 24 dealers, 22 have been ‘onboarded’ to the trueEX platform, and 14 have traded in 2017. All- but three of those 14 dealers, or 79%, have engaged in trades ■ that required a drop-copy to MarkitSERVs network.
“With respect to ' trueEX’s buy-side clients:
“a. Of the 81 buy-side participants who have signed up with trueEX, 41, or 51%, require MarkitSERV*717 connectivity for transactions in at least one currency.
“b. Of those' 81 buy-side clients, there are 71 that have been on-boarded to the trueEX platform, and 22 that have traded on the trueEX platform in 2017. Nine of those 22 clients, or 41%, have engaged in trades that required a drop-copy to MarkitSERV’s network.”73
Thus, in trueEX’s yiew, the data strongly support the conclusion that trueEX cannot survive without drop-copy service because the majority of its clients rely on Markit-SERV for STP. Mr. Hirani asserts too that even if some percentage of its buy-side clients do not use MarkitSERV for STP,
“[grading on a SEF that does not have the ability to provide drop-copy functionality for trades to MarkitSERV’s network is a non-starter for an enormous number of entities that trade IRS, including virtually the entire community of dealers (one of which [is] on at least one side of every trade). Regardless of whether it needs MarkitSERV’s STP to maintain its own books and records, no rational buy-side participant would choose to trade on a SEF that is completely cut off from the vast majority of the IRS market, and therefore lacks the liquidity and efficiency that participants expect and demand from a SEF,”74
As for MarkitSERV’s suggestion that trueEX can simply finish building out fits STP network, trueEX maintains that “establishing STP connectivity with a client is a complex and burdensome process,”
2. truePTS
The threat to truePTS is far simpler. Mr. Hirani contends that “MarkitSERV’s refusal to provide STP connectivity to truePTS will kill truePTS before it gets off the ground.”
V. The Present Litigation
■ Plaintiffs filed this action in response to MarkitSERV’s May 8 announcement. trueEX and truePTS each assert claims for monopolization and attempted monopolization under Section 2. of the Sherman Act, while trueEX alone asserts also. a claim for promissory estoppel under New York law.
Pursuant to a standstill agreement the parties entered into on May 10, 2017, the effective date of the BTA is tolled until July 24, 2017.
Discussion
Section 16 of the Clayton Act provides that a party may obtain injunctive relief “against threatened loss or damage by a violation of the antitrust laws.”
I. Likelihood of Success on the Merits
A. The Monopolization Claim
Section 2 of the Sherman Act provides that it is unlawful to “monopolize, or attempt to monopolize ... any part of the trade or commerce among the several States, or with foreign nations.”
For purposes of this motion, Markit-SERV concedes that IRS post-trade processing is a relevant market and that it has monopoly power in that market.
1. Refusal to Deal
“[A]s a general matter, the Sherman Act ‘does not restrict the long recognized right of [a] trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’”
That exception is rooted in two Supreme Court cases: Aspen Skiing Co. v. Aspen Highlands Skiing Corp. and Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP. In Trinko, the Supreme Court summarized Aspen Skiing, which it called the “leading case for § 2 liability based on refusal to cooperate with a rival,” as follows:
“The Aspen ski area consisted of four mountain areas. The defendant, who owned three of those areas, and the plaintiff, who owned the fourth, had cooperated for years in the issuance of a joint, multiple-day, all-area ski ticket. After repeatedly demanding an increased share of the proceeds, the defendant canceled the joint ticket. The plaintiff, concerned that skiers would bypass its mountain without some joint offering, tried a variety of increasingly desperate measures to re-create the joint ticket, even to the point of in effect offering to buy the defendant’s tickets at retail price. The defendant refused even that. We upheld a jury verdict for the plaintiff, reasoning that ‘[t]he jury may well have concluded that [the defendant] elected to forgo these short-run benefits because it was more interested in reduc-' ing competition ... over the long run by harming its smaller competitor.’ ”96
The Trinko Court noted, however, that “Aspen Skiing is at or near the outer boundary of § 2 liability.”
While Trinko “does not purport to set out a ‘test,’ it usefully highlights the distinctions that made Aspen Skiing the rare case in which a refusal to deal amounted to a prohibited act of unilateral monopolization.”
At the outset, it is plain that truePTS on the present record is unlikely to succeed on its refusal to deal claim because it never has had any .business relationship with MarkitSERV. trueEX, however, stands in different shoes. Several key features of Aspen Skiing are present in its relationship with MarkitSERV.
As in Aspen Skiing, MarkitSERV voluntarily has dealt with trueEX for several years. MarkitSERV nevertheless contends that “it is unlikely [it] made a profit at. all after- factoring the time and investment costs associated with providing drop copy service for [t]rueEX trades.”
First, in Aspen Skiing, the joint ski ticket initially was introduced “when three independent companies operated three different ski mountains” and “continued to provide a desirable option for skiers when the market was enlarged to four mountains."
Here, in contrast to Aspen Skiing, the relationship between MarkitSERV and trueEX did not “originate in a competitive market.”
Although that fact distinguishes this case from Aspen Skiing, it is not legally significant, at least on the present record. The genesis of the cooperative relationship at- issue in a refusal to 'deal, case — ie., whether it originated in a competitive or monopolistic market — has evidentiary significance, if at all, only where it has probative value-with respect to the existence or absence of anticompetitive’motives. That is to say, in general, a new monopolist’s termination of a cooperative relationship that originated in a competitive market-is more likely to suggest anticompetitive motives than a'iong-time monopolist’s termination of a relationship that arose in a monopolistic market. But where, as here, evidence shows that the monopolist was motivated at least in material part by anticompetitive desirós, any countervailing inference the Court might have drawn from’ the fact that the cooperative relationship originated in a monopolistic market would be improbable.
Second, whereas the' monopolist’s termination of the joint ski- ticket in Aspen Skiing suggested a willingness to sacrifice short-term profits, MarkitSERV’s termination of the BTA is more equivocal on the present record. To be sure, MarkitSERV stands to lose the fees trueEX pays for drop-copy service. But it perhaps stands also to gain business from trueEX customers that might migrate away from trueEX and to MarkitSERV for trade processing because of its STP network.
Third, unlike the monopolist in Aspen Skiing, MarkitSERV asserts that it had at least one legitimate business reason for discontinuing the provision of drop-copy service to trueEX — preventing trueEX from permitting truePTS to access Markit-SERV’s network without MarkitSERV’s permission.
During the argument of the motion, the Court asked counsel for MarkitSERV to identify the provision or provisions of the BTA that limit what trueEX may do with its access to the MarkitSERV network. Although counsel directed the Court’s attention to certain defined terms in the BTA, none answered the question definitively.
When a contract is ambiguous, the Court may consider extrinsic evidence to aid in its interpretation.
While it is debatable on this record whether trueEX has shown that it is likely
The foregoing is sufficient to resolve the likelihood-of-success prong of the preliminary injunction standard. Nevertheless, prudence suggests that the Court rule also on plaintiffs’ likelihood of success on their other antitrust and quasi-contractual claims.
2. Essential Facilities
Plaintiffs contend that MarMt-SERV’s STP network is a facility essential to competition in the IRS post-trade processing market and that MarkitSERV’s denial of access to it violates Section 2. To bring a successful Section 2 essential facilities claim, a plaintiff must prove: “(1) control of the essential facility by a monopolist; (2) a competitor’s inability practically or reasonably to duplicate the essential facility; (3) the 'denial of the use of the facility to a competitor; and (4) the feasibility of providing the facility.”
Here, plaintiffs contend that (1) Mark-itSERV “has éxclusive control over the drop-copy STP function, which is essential to any SEF seeking to provide IRS trade processing services”; (2) “it is impossible for trueEX and truePTS to ‘practically or reasonably duplicate the provision of connectivity' to MarkitSERV clients” because “[duplicating Markit-SERV’s STP infrastructure would require a massive investment of time and money, m'aking it impractical (and unprofitable) from a business standpoint”; (3) “Markit-SERV is acting to deny trueEX and truePTS access to and use of this essential facility”; and (4) “past practice demonstrates that it is feasible for Markit-SERV to provide STP connectivity.”
As an initial matter, the continued viability of the essential facilities doctrine has been called into question in recent years.
The fact that trueEX has built direct connections to or otherwise managéd to process trades for three of its fourteen active dealers and thirteen of its twenty-two active buy-side clients seriously under
Moreover, trueEX has not adequately shown for purposes of this claim that it was denied access to MarkitSERV’s STP network, “[T]he indispensable requirement for invoking the [essential facilities] doctrine is the unavailability of access to the ‘essential facilities’; where access exists, the doctrine serves ho purpose.”
B. Promissory Estoppel
“In New York, promissory es-toppel has three elements: ‘a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made, and an injury sustained by the party asserting the estoppel by reason of the reliance.’”
First, an essential element of a promis? sory estoppel claim is that the promisee—
Second, trueEX’s showing with respect to injury is inadequate. It contends that but for MarkitSERV’s promise it “would have sought judicial relief sooner, seeking to enjoin MarkitSERV from further pursuing termination of the [BTA],”
II. Balance of Hardships
When balancing the hardships, “the issue is whether [the movants] would suffer decidedly greater harm from an erroneous denial of an injunction than the defendants would suffer from an erroneous grant.”
In this case, the risk to Markit-SERV of an erroneous injunction is slight. True, issuance of a preliminary injunction would require MarkitSERV to assist a competitor with which it no longer “wish[es] to .deal” — a cognizable harm, at least in the abstract.-
In contrast, the risks to trueEX of a wrongful denial of an injunction would be more serious. Without a preliminary injunction, trueEX is likely to suffer economic injury in the form of lost clients and lost revenue, injury that has the potential to be ruinous in nature. (More on that point later.) Furthermore, trueEX almost certainly would lose some customers between now and a final decision on the merits which would be unlikely to “return to [trueEX] even if [MarkitSERV] ultimately were enjoined.”
In light of the foregoing, the Court concludes that the balance of hardships tips decidedly in trueEX’s favor. While the extent of any hardship from an erroneous ruling on this motion is not certain, the harm trueEX faces were MarkitSERV not enjoined when it should have been is far more severe than any potential harm facing MarkitSERV.
III. Public Interest
The Court “must ensure [also] that the ‘public interest would not be dis-served’ by the issuance of a preliminary injunction.”
IV. Threat of Irreparable Harm
Irreparable harm is “the sine qua ñon for preliminary injunctive relief.”
trueEX contends that it will suffer irreparable harm in the form of major disruption to its business if a preliminary injunction does not issue. Specifically, it asserts that it “cannot survive as a business without connectivity to MarkitSERV’s network” because “nearly every trade that happens on trueEX’s platform includes at least one counterparty that needs Markit-SERV connectivity to receive real-time updates for their books and .records.”
Although the full extent to which trueEX’s business relies on the drop-copy workflow is not clear from the record, the Court finds that drop-copy functionality is vitally ■ important to trueEX’s business. STP facilitation is essential to many entities that trade IRS, especially.dealers.
MarkitSERV, unsurprisingly, contends that it does. It points to 2016 data showing that nearly 60 percent of the notional value of trueEX’s ' U.S. dollar-denominated trades bypassed MarkitSERV’s network. From that datum, MarkitSERV asks the Court to infer that most of trueEX’s business would be unaffected by the discontinuation of drop-copy service. While Markit-SERV seems to concede ' that trueEX would be likely to sustain some disruption to its business, it contends that the disruption would not rise to the level of threatening trueEX’s continued viability.
trueEX argues strenuously to.the contrary. It urges the Court to reject Markit-SERV’s argument for two primary reasons.
First, trueEX accuses MarkitSERV of “cherry-pick[ing] [its] data” because Mark-itSERV looked only at 2016 and focused only on U.S. dollar swaps,, “which ignores a substantial portion of the platform’s volume.”
Second, trueEX contends that even if MarkitSERV were correct that 60 percent of its trades currently bypass the Markit-SERV network, trueEX still could- not function as an SEF without drop-copy service.
Since both sides are guilty of cherry-picking data — as the hearing on this motion showed — the Court is not persuaded one way or the other by the conflicting numbers relied on by the parties. Nevertheless, the Court finds that there would be an actual and imminent threat to the continued viability of trueEX if. Markit-SERV were to discontinue drop-copy service to it. Most market participants consider STP facilitation a deal breaker. In the cases in which trueEX does not have a direct connection to a customer for STP facilitation, that customer will abandon trueEX’s platform for a trading platform that can provide STP. Currently, eleven of trueEX’s active dealer clients lack direct connections. When those dealers leave the trueEX platform, buy-side clients who remain on- the platform will have only three dealers providing liquidity — as compared to the thirty-three dealers accessible through TradeWeb, for example. As a result, “no ■ rational buy-side participant would choose to trade on a SEF that is completely, cut off from, the, vast majority of the IRS market, and therefore lacks the liquidity and efficiency that participants expect and demand from a SEF.”
trueEX is likely also to suffer irreparable harm in the form of lost goodwill. “[T]erminating the deliveiy of a unique product to a distributor whose customers expect and rely on the distributor for a continuous supply of that product almost inevitably creates irreparable damage to the good will of the distributor.”
Here, trueEX’s customers expect and rely on it to perform trade processing using STP. Not only have clients indicated a strong preference for STP — in one case referring to the lack of STP as a “deal breaker” — some have threatened to stop doing business with trueEX if it no longer can provide STP facilitation.
In the circumstances, termination of the BTA quite likely would cause irreparable
Conclusion
The historic purpose .of a preliminary injunction is to maintain the status quo pending a full trial where all facts and arguments may be considered with adequate preparation and in their complete context. As the foregoing demonstrates, this is a case in which full and expanded consideration is essential. At a minimum, there are serious questions going to, the merits. In the circumstances, the balance of hardships tips decidedly in trueEX’s favor. For those and all the reasons stated above, plaintiffs’ motion for a preliminary injunction [DI 22] is granted with respect to trueEX. It is.denied, however, with respect' to truePTS, principally because truePTS has not shown any likelihood of success on its claims.
It is important to recognize that the Court is dealing here only with a preliminary injunction the purpose of which is to preserve the status quo pending trial.'The Court already has raised with the parties the question whether trueEX, were it to prevail, would be entitled to a permanent injunction requiring MarkitSERV to continue to deal with it in perpetuity in the manner it did prior to the termination notice,
In all the circumstances, defendants MarkitSERV Limited and MarkitSERV, LLC be and they hereby are enjoined and restrained, pending hearing and determination of the action, from directly or indirectly terminating the BTA or discontinuing the provision of drop-copy service to plaintiff trueEX, LLC.
No bond is required because the Court finds that there is nd likelihood of harm to defendants.
The foregoing constitute the Court’s findings of fact and conclusions of law.
SO ORDERED.
. CSX Corp. v. Children's Inv. Fund Mgmt. (UK) LLP, 562 F.Supp.2d 511, 519 (S.D.N.Y. 2008), aff'd in part, vacated in part, and remanded, 654 F.3d 276 (2d Cir. 2011).
. Id.
. Id.
. Levy Deck [DI 30] ¶ 5.
. Other buy-side participants include “pension funds, insurance firms, asset mánagement funds, and hedge funds.” Hirani Decl. [DI 25] ¶ 7.
. "The major dealers of IRS include all the large global banks, such as Goldman Sachs, JP Morgan, Barclays, and Citigroup. Swap dealers are designated 'market makers’ in IRS, meaning they make markets by providing quotes to buy-side market participants seeking to trade IRS.” DI 25 ¶ 5.
. DI 30 ¶ 5.
. DI 25 1! 2.
. DI 30 ¶ 6.
. DI 25 ¶ 8; see also Levy Dec!., Ex. A [DI 30-1],
. DI 30 ¶ 7.
“A substantial volume of IRS trades are not executed on SEFs.” DI 30 ¶ 8. For purposes of this motion, however, we are concerned only with cleared IRS trades executed on SEFs.
. DI 25 ¶ 9; DI 30 ¶ 7.
. DI 30 ¶ 9.
. DI 25 ¶ 12.
. DI 25 ¶ 13.
. DI 30 ¶ 3.
. DI301Í4.
. See DI 30 ¶ 22,
. See, e.g., 0125¶21.
. DI 30 ¶ 4.
. DI 25 ¶ 19; DI 30 ¶ 3.
. DI 25 ¶ 20.
. DI 30 ¶ 3.
. DI 25 ¶¶ 21-22.
. DI 25 ¶ 23.
. Prelim. Inj. Hr’g Tr. 36:1-14, June 6, 2017.
. DI 25 ¶ 24.
. DI 25 ¶¶ 16-17.
. APIs "allow a programmer writing an application to instruct an operating system or another program to carry out specific tasks. In essence, [APIs] act as building blocks. When programmers have the [APIs], they can create software to complete tasks through the program providing tire interfaces by putting the interfaces together. If programmers do not have the [APIs] they must completely recreate instructions for the tasks with original code.” Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1008 n.3 (10th Cir. 2002) (citations omitted).
.DI 25 ¶ 16; DI 30 ¶ 34.
. DI 25 ¶ 16.
. DI 25 ¶ 28.
. DI 30 ¶ 34.
. DI 30 ¶ 14.
. DI 25-1.
. DI 30 ¶ 15.
. DI 30 ¶ 24.
. DI 30 ¶ 24.
. DI 30 ¶ 35.
. DI 25 ¶ 37.
. DI 30 ¶ 37.
. DI 25 ¶ 38.
. DI 25 ¶ 37.
. DI 25 ¶ 37.
. See Pls.’ Br. [DI 23] at 3.
truePTS contends also that even once it has developed its own network, it still will require drop-copy functionality from Markit-SERV "so it can ‘talk’ to MarkitSERV for clients that ... rely on MarkitSERV’s STP for their books and records.” DI 25 ¶ 62.
. DI 25 ¶ 40.
. DI 25 ¶ 40.
. Brockett Deck, Ex. 4 [DI 40-4] at 1.
. DI 30 ¶ 42.
. DI 30 ¶ 42.
. See DI 30 ¶ 39.
. Hirani Deck, Ex. 2 [DI 25-2],
. DI 23 at 1.
. DI 30 ¶ 49; DI 25 ¶ 47.
. DI 30 ¶ 49.
Certain buy-side counterparties do not require STP facilitation. See DI 30 ¶ 27. For trades involving such counterparties, trueEX would not need a direct connection to the buy-side customer in order to process trades involving them, assuming the dealer counterparty is directly connected -to the trueEX network.
. DI 25 ¶ 49.
. DI 25 ¶ 51.
. DI 25 ¶ 51.
. DI 30 ¶ 47.
. DI 25 ¶¶ 56-60.
. DI 25 ¶ 54.
. DI 25 ¶ 55.
. DI 25 ¶ 56.
For example, Mr. Hirani says trueEX received the following email from a dealer; "I just received a call from [MarkitSERV] that the relationship between TrueEX and [MarkitSERV] has dissolved ... and they will no longer support the drop copy deals.... [I]f our connection is not setup and we do not have [MarkitSERV], this will break our STP and I will need to discuss ... options for future activity.” DI 25 ¶ 56.
. MarkitSERV contends that “[t]wo of the dealers use MarkitSERV for some of their [t]rueEX-based trades, but also have a direct connection to [t]rueEX, and so could easily bypass MarkitSERV for each of their trades if they chose to do so.” DI 30 at 10 n.6.
. DI 30 ¶ 26.
. DI 30 ¶ 31 (quoting DI 25 ¶ 25).
. DI 30 ¶ 32.
. DI 30 ¶ 33.
. DI 30 ¶ 28.
. DI 30 ¶ 34.
. DI 29 at 3,
. Hirani Reply Deck [DI 41] ¶ 18.
. DI 41 ¶¶ 19-20 (footnotes omitted).
. DI 41 ¶ 24.
. DI 41 ¶ 26.
. DI 41 ¶ 31.
. DI 41 ¶ 32.
. DI 25 ¶ 62.
. DI 25 ¶ 63.
. See Dll.
. DI‘25 ¶ 53.
The parties did not provide the Court with a copy of the standstill agreement. The Court relies instead on the parties’ representations concerning the agreement’s terms.
. DI 25 ¶ 63.
. 15 U.S.C. § 26.
. N.Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir.), cert. dismissed sub nom. Allergan PLC v. N.Y. ex rel. Schneiderman, - U.S. -, 136 S.Ct. 581, 193 L.Ed.2d 421 (2015).
. Plaintiffs pursue also claims for attempted monopolization. As they note in their opening brief, the elements of attempted monopolization "essentially track those required for a successful monopolization claim[. Hence,] a finding of ... monopolization will also lead to a finding of attempted monopolization.” DI 23 at 13-14 n.6 (internal quotation marks omitted). Accordingly, the Court assesses the merits only of the monopolization claims.
. 15 U.S.C. § 2.
. Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004) (quoting United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)).
. Id. (emphasis omitted).
. Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 124 (2d Cir. 2007) (quoting Morris Commc'ns Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1295 (11th Cir. 2004)).
. Hr’g Tr. 36.
. Trinko, 540 U.S. at 408, 124 S.Ct 872 (quoting United States v. Colgate & Co., 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992 (1919)).
. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 601, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985).
. Trinko, 540 U.S. at 408, 124 S.Ct. 872.
. Id.
. In re Adderall XR Antitrust Litig., 754 F.3d 128, 134 (2d Cir. 2014) (internal quotation marks omitted) (quoting In re Elevator Antitrust Litig., 502 F.3d 47, 52, 53 (2d Cir. 2007) (per curiam)).
. Trinko, 540 U.S. at 408, 124 S.Ct. 872.
. Id. at 409, 124 S.Ct. 872.
. Adderall, 754 F.3d at 135.
. Trinko, 540 U.S. at 409, 124 S.Ct. 872.
. Aspen Skiing, 472 U.S. at 603, 105 S.Ct. 2847.
. Trinko, 540 U.S. at 409, 124 S.Ct. 872.
. Id. (emphasis in original).
. Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1075 (10th Cir. 2013); see also Aspen Skiing, 472 U.S. at 604, 105 S.Ct. 2847 (“Since the jury was unambiguously instructed that Sid Co.’s refusal to deal with Highlands 'does not violate Section 2 if valid business reasons exist for that refusal, we must assume that the jury concluded thát there were no valid business reasons for. the refusal.”).
. Trinko, 540 U.S. at 409, 124 S.Ct. 872.
. As plaintiffs’ motion treats truePTS and trueEX as separate entities despite the fact that they are "sister companies” that share the same staff, the Court proceeds on that ■ assumption. It offers no view as to whether the relationship between them is such that they should be treated as a single entity for antitrust purposes.
.DI 30 ¶ 20.
. DI 30 ¶ 20.
. The Court is obliged by Rule 52(a)(2) to make findings of fact in deciding a motion for an interlocutory injunction, Such findings are provisional in the sense that they are not binding on a motion for summary judgment or at trial and are subject to change as the litigation progresses.
It is well to mention also that the parties explicitly waived an evidentiary hearing on this motion [see DI 43; -DI 45] and thus consented to the making of findings entirely on the paper record before the Court. See, e.g., Consol. Gold Fields PLC v. Minorco, S.A., 871 F.2d 252, 256 & n.3 (2d Cir. 1989); Fengler v. Numismatic Americana, Inc., 832 F.2d 745, 748 (2d Cir. 1987). Review of such findings remains subject to the clearly erroneous standard. E.g., Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); 9 James Wm. Moore et al., Moore's Federal Practice § 52.31[6][a] (3d ed. 2017).
. DI 41 ¶ 1,2; DI 25 ¶ 51.
. Aspen Skiing, 472 U.S. at 603, 105 S.Ct. 2847.
. Id. at 603-04, 105 S.Ct. 2847.
. Id. at 604, 105 S.Ct. 2847.
. Id. at 603, 105 S.Ct. 2847.
. See DI 30 ¶ 51; Novell, 731 F.3d at 1076-78; MetroNet Servs. Corp. v. Qwest Corp., 383 F.3d 1124, 1132 (9th Cir. 2004).
. Novell, 731 F.3d at 1076.
. MarkitSERV advances other business reasons for its decision to terminate, which the Court on the present record finds are pretextual. See DI 23 at 18 n.8; DI 38 at 4-10.
. Morris, 364 F.3d at 1295 (“[Rjefusal to deal that is designed to protect or further the legitimate business purposes of a defendant does not violate the antitrust laws, even if that refusal injures competition.”); id. (“PGA met its business justification burden by showing that it seeks to prevent Morris from 'free-riding' on PGA's RTSS technology.”),
. See Hr’g Tr. 53-57, 67-69.
. Of course, it is possible that the BTA is utterly silent on the question and that the problem here arises because none of the contracting parties foresaw the possibility that trueEX might use its access to the Markit-SERV network in the present circumstances.
. Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 27 (2d Cir. 1988).
. Jacobson & Co. v. Armstrong Cork Co., 548 F.2d 438, 444 (2d Cir. 1977).
. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 569 (2d Cir. 1990) (quoting MCI Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1132-33 (7th Cir. 1983)).
. DI 23 at 21-22.
. Trinko, 540 U.S. at 411, 124 S.Ct. 872 ("We have never recognized such a doctrine and we find no need either to recognize it or to repudiate it here.”); RxUSA Wholesale Inc. v. Alcon Labs., 391 Fed.Appx. 59, 61 (2d Cir. 2010) ("[T]o the extent that such a claim is viable, RxUSA's essential facilities claim fails against the Manufacturers, at the very least because RxUSA is able to obtain pharmaceutical products from other sources, albeit at a higher price.”); Elevator Antitrust, 502 F.3d 47, 54 (2d Cir. 2007) (describing Aspen Skiing-type termination of prior course of dealing as “the sole exception to the right of refusal to deal”).
. Twin Labs., Inc. v. Weider Health & Fitness, 900 F.2d 566, 570 (2d Cir. 1990).
. Eggers Decl., Ex. 2 [DI 31-2],
. DI 23 at 3.
. DI 23 at 21.
Plaintiffs argue also that even if they were able to replicate "full STP functionality,” "the only way to coordinate transactions” with IRS counterparties that use Markit-SERV for trade processing "would be through the transmission of drop-copy reports, which cannot occur without Markit-SERV’s cooperation.” Id. The world plaintiffs describe, however, is not the one in which we. live. They essentially ask the Court to predict how MarkitSERV would behave in future circumstances quite different from those we are faced with here. The Court declines to do so.
. Trinko, 540 U.S. at 411, 124 S.Ct. 872.
. MetroNet, 383 F.3d at 1130; see also Aerotec Int'l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171, 1185 (9th Cir. 2016).
. Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 44 (2d Cir. 1995).
. Schmidt v. McKay, 555 F.2d 30, 36 (2d Cir. 1977).
. DI 23 at 24.
. SeeD125 ¶ 60.
. The Court does not consider potential harm to truePTS in balancing the equities of this case in view of its conclusion that truePTS has not shown a likelihood of success on any of its claims.
. Foulke ex rel. Foulke v. Foulke, 896 F.Supp. 158, 162 (S.D.N.Y. 1995) (citing Holford USA Ltd. v. Cherokee, Inc., 864 F.Supp. 364, 374 (S.D.N.Y. 1994)); see also Buffalo Forge Co. v. Ampco-Pittsburgh Corp., 638 F.2d 568, 569 (2d Cir. 1981); Tradescape.com v. Shivaram, 77 F.Supp.2d 408, 411 (S.D.N.Y. 1999).
. United Asset Coverage, Inc. v. Avaya Inc., 409 F.Supp.2d 1008, 1042 (N.D. Ill. 2006). The Court notes that in both of the cases on which MarkitSERV relies for that proposition, the court concluded that the movant had not carried its burden on irreparable harm, thereby rendering any forced dealing that would have flowed from an injunction a severe hardship for the defendant. See Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 764 (2d Cir. 1979) ("Having already held that Kahn has failed -to prove a probability of irreparable damage resulting from termination of its Baldwin dealership, there is little to add on the subject of the balance of hardships.”); Avaya, 409 F.Supp.2d at 1039-42. Here, in contrast, trueEX has persuaded the Court that it likely will face irreparable harm if a preliminary injunction is not granted.
. Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 909 (2d Cir. 1990).
. Tradescape.com, 77 F.Supp.2d at 411.
. Id. at 412.
. Salinger v. Colting, 607 F.3d 68, 80 (2d Cir. 2010) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)).
. United States v. Columbia Pictures Indus., Inc., 507 F.Supp. 412, 434 (S.D.N.Y. 1980).
. MarkitSERV claims that the public interest in freedom of contract would be served by denying the injunction. DI 29 at 29. The Sherman Act, however, embodies Congress’ judgment that freedom of contract in some circumstances must bow to the public's interest in promoting competition and efficiency. See 15 U.S.C. § 1 (declaring "illegal” "[e]very contract ... in restraint of trade”). Where the contractual right is alleged to violate the antitrust laws, the public interest in antitrust enforcement and preservation of competition outweighs the interest in freedom of contract. For similar reasons, MarkitSERV's contention that "competition is ill-served by forcing [it] to share its network, since it reduces both parties’ incentives to invest in their respective facilities” is unpersuasive in the present context. While much ink has been spilled debating the wisdom of the refusal to deal doctrine, see, e.g., W. Carlton, A General Analysis of Exclusionary Conduct and Refusals To Deal-Why Aspen and Kodak Are Misguided, 68 Antitrust L.J. 659, 677 (2001), such claims remain cognizable under our antitrust laws. Forced dealing may, as MarkitSERV contends, undermine competitive incentives, but the law recognizes that such a result may be justified in some circumstances.
. USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1295 (2d Cir. 1995).
. Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999).
. Nemer Jeep-Eagle, Inc. v. Jeep-Eagle Sales Corp., 992 F.2d 430, 435 (2d Cir. 1993) (quoting John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 588 F.2d 24, 28-29 (2d Cir. 1978)); see also Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1186 (2d Cir. 1995) ("Major disruption of a business can ... constitute irreparable injury.”).
. Jacobson, 548 F.2d at 445.
. DI 23 at 25.
. Id.
. DI 25 ¶ 28.
. DI 41 ¶ 23.
. DI 41 ¶ 23.
. DI 41 ¶ 24.
. Reuters, 903 F.2d at 907-08.
. Id.
. See DI 25 ¶¶ 56-60.
. DI 25 ¶ 56,
. Rex Med. L.P. v. Angiotech Pharms. (US), Inc., 754 F.Supp.2d 616, 622 (S.D.N.Y. 2010).
. Hr’gTr. 4:14-21.
. Id. at 64:13-65:2.
. Doctor’s Assocs., Inc. v. Distajo, 107 F.3d 126, 136 (2d Cir. 1997).
Reference
- Full Case Name
- TRUEEX, LLC, et ano. v. MARKITSERV LIMITED, et ano.
- Cited By
- 10 cases
- Status
- Published