This short comment suggests a connection, so far unrecognized, between two antitrust cases currently awaiting decision by the Supreme Court. In one case, the Court is likely, though not certain, to overturn the long-standing rule that resale price maintenance is illegal per se. If that should occur, another case on the Court’s docket, involving the scope of the implied antitrust immunity enjoyed by underwriters of corporate securities offerings, would (or should) look very different. This comment suggests that, if the law of vertical restraints is finally rationalized so that an issuer of a security may lawfully restrict price and other competition among its distributors, the traditional basis for inferring a congressional intention to exempt securities offerings from the Sherman Act (a “clear repugnancy” between two statutory regimes) would at least arguably disappear. Although the justices are unlikely to see the point in the pending case on underwriter immunity, there might be room for future antitrust challenges to horizontal restraints conceived and implemented by underwriters in IPOs.
Clark C. Havighurst, Antitrust and IPOs in the Supreme Court (2007)