Credit Suisse v. Billing and a Case for Antitrust Immunity for Mortgage Lenders Subject to Federal Regulation

It is widely perceived that the Supreme Court’s recent decision in Credit Suisse Securities (USA) LLC v. Billing conferred on the securities industry enormous protection from antitrust liability. In Billing, the Court held that Congress had impliedly repealed the antitrust laws with respect to certain industry practices in the initial public offering of securities. Other federally regulated or quasi-regulated industries undoubtedly will look to this decision to determine whether practices in their respective industries qualify for similar immunity. While many practitioners may have hoped for a more generic articulation of the guiding principles in determining the interplay between federal regulation and the antitrust laws, rather than one so specific to securities regulation, Billing does illustrate an approach that can be of value to other federally regulated industries.
This article considers the broader application of Billing, taking practices in the federally-regulated mortgage lending industry as an illustrative case.

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