Daily Rules, Proposed Rules, and Notices of the Federal Government
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)-(h), the United States hereby publishes below the comments received on the proposed Final Judgment in
Copies of the comments and the response are available for inspection at the Department of Justice Antitrust Division, 450 Fifth Street, NW., Suite 1010, Washington, DC 20530 (telephone: 202-514-2481), on the Department of Justice's Web site at
UNITED STATES OF AMERICA,
Civil Action No.: 11-civ-6875 WHP
Hon. William Pauley III
Pursuant to the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. SS 16(b)-(h) ("Tunney Act"), the United States files the public comments concerning the proposed Final Judgment in this case and the United States' response to those comments. After careful consideration, the United States continues to believe that the relief sought in the proposed Final Judgment will provide an effective and appropriate remedy for the antitrust violation alleged in the Complaint. The United States will move the Court for entry of the proposed Final Judgment after the public comments and this Response have been published in the
The United States brought this lawsuit against Defendant Morgan Stanley on September 30, 2011, to remedy a violation of Section 1 of the Sherman Act, 15 U.S.C. SS 1. In January 2006, Morgan Stanley Capital Group Inc. ("MSCG"), a subsidiary of defendant Morgan Stanley,
Simultaneously with the filing of the Complaint, the United States filed a proposed Final Judgment and a Stipulation signed by the United States and Morgan consenting to the entry of the proposed Final Judgment after compliance with the requirements of the Tunney Act. Pursuant to those requirements, the United States filed a Competitive Impact Statement ("CIS") in this Court on September 30, 2011; published the proposed Final Judgment and CIS in the
As alleged in the Complaint and as discussed more fully in the CIS [Dkt. #2] at 2-7, this case involves Morgan's participation in an agreement with KeySpan that caused an anticompetitive effect in the New York City Capacity Market.
In 2005, KeySpan, a pivotal capacity supplier, anticipated that tight supply and demand conditions in the New York City capacity market would ease due to entry of new generation. Concerned that market entry would lead to lower prices and revenues, KeySpan studied various options, including the direct purchase of Astoria. Such an acquisition, however, would have raised significant market power concerns. KeySpan decided instead to approach Morgan to arrange a financial transaction that would provide KeySpan an indirect financial interest in Astoria's capacity sales. Morgan informed KeySpan that such an agreement between Morgan and KeySpan would be contingent on Morgan also entering into an agreement with Astoria, the only other generator with sufficient capacity to offset Morgan's payments to KeySpan.
In January 2006, Morgan entered into a financial derivative agreement with KeySpan (the "Morgan/KeySpan Swap"), and, at the same time, an offsetting agreement with Astoria (the "Morgan/Astoria Hedge"). Under the terms of the Morgan/KeySpan Swap, when the market clearing price for capacity was above a certain amount, Morgan essentially was required to pay KeySpan a multiple of the difference between the clearing price and the strike price.
The revenues from Astoria's capacity sales that KeySpan obtained through the Morgan/KeySpan Swap effectively eliminated KeySpan's incentive to compete for sales in the same way a purchase of Astoria or a direct agreement between KeySpan and Astoria would have done. As a result, KeySpan consistently bid its capacity into the capacity auctions at the highest allowed price and, despite the addition of significant new generating capacity in New York City, the market price of capacity did not decline.
On February 22, 2010, the United States filed suit against KeySpan for its role in the Morgan/KeySpan Swap. Simultaneous with the filing of its Complaint, the United States filed a proposed Final Judgment requiring KeySpan to pay to the United States $12 million as disgorgement of ill-gotten gains. See Complaint, United States v. KeySpan Corp., No. 10-1415 (S.D.N.Y. Feb. 22, 2010). On February 2, 2011, after completion of the Tunney Act procedures, the Court entered the KeySpan Final Judgment, and, in making its public interest determination, found that disgorgement is available to remedy violations of the Sherman Act. See United States v. KeySpan Corp., 763 F. Supp. 2d 633, 638-41 (S.D.N.Y. 2011) (WHP).
On September 30, 2011, the United States filed the current suit against Morgan for its role in the Morgan/KeySpan Swap. The United States alleges that Morgan entered into an agreement (the Morgan/KeySpan Swap), the likely effect of which was to increase prices in the New York City Capacity Market, in violation of Section 1 of the Sherman Act, 15 U.S.C. SS 1. Simultaneous with the filing of its Complaint, the United States filed a proposed Final Judgment requiring Morgan to pay to the Treasury of the United States $4.8 million as disgorgement of ill-gotten gains. The proposed Final Judgment requires Morgan to disgorge profits gained as a result of its unlawful agreement in restraint of trade. As stated in the CIS, the proposed relief serves the public interest by depriving Morgan of ill-gotten gains, thereby deterring Morgan and others from engaging in similar anticompetitive conduct in the future.
The Tunney Act calls for the Court, in making its public interest determination, to consider certain factors relating to the competitive impact of the judgment and whether it adequately remedies the harm alleged in the complaint. See 15 U.S.C. SS 16(e)(1)(A) and (B) (listing factors to be considered).
This public interest inquiry is necessarily a limited one, as the United States is entitled to deference in crafting its antitrust settlements, especially with respect to the scope of its complaint and the adequacy of its remedy. See generally United States v. Microsoft Corp., 56 F.3d 1448, 1458-62 (DC Cir. 1995); United States v. SBC Commc'ns, 489 F. Supp. 2d 1, 12-17 (D.D.C. 2007). Under the Tunney Act, the "Court's function is not to determine whether the proposed [d]ecree results in the balance of rights and liabilities that is the one that will best serve society, but only to ensure that the resulting settlement is within the reaches of the public interest." KeySpan, 763 F. Supp. 2d at 637 (quoting United States v. Alex Brown & Sons, 963 F. Supp. 235, 238 (S.D.N.Y. 1997) (quoting Microsoft, 56 F.3d at 1460) (emphasis in original), aff'd sub nom, United States v. Bleznak, 153 F.3d 16 (2d Cir. 1998)).
With respect to the scope of the complaint, the Tunney Act review does not provide for an examination of possible competitive harms the United States did not allege. See, e.g., Microsoft, 56 F.3d at 1459 (holding that it is improper to reach beyond the complaint to evaluate claims that the government did not make).
With respect to the sufficiency of the proposed remedy, the United States is entitled to deference as to its views of the nature of the case, its perception of the market structure, and its predictions as to the effect of proposed remedies. See, e.g., KeySpan, 763 F. Supp. 2d at 642; SBC Commc'ns, 489 F. Supp. 2d at 17 (holding that the United States is entitled to deference as to predictions about the efficacy of its remedies). Under this standard, the United States need not show that a settlement will perfectly remedy the alleged antitrust harm; rather, it need only provide a factual basis for concluding that the settlement is a reasonably adequate remedy for the alleged harm. SBC Commc'ns, 489 F. Supp. 2d at 17. A court should not reject the United States' proposed remedies merely because other remedies may be preferable. KeySpan, 763 F. Supp. 2d at 637-38.
The United States received formal comments from the Public Service Commission of the State of New York ("PSC") and from AARP, a nonprofit organization that helps people over the age of fifty.
The comments raise three central objections: (1) that the proposed $4.8 million dollar disgorgement is inadequate to deter similar anticompetitive conduct or otherwise serve its remedial purpose, especially given the likely magnitude of the injury to consumers from any increase in New York City capacity prices (PSC Cmts at 7-14; AARP Cmts at 11-16 and 19-25); (2) that the decree does not contain an admission of wrongdoing by Morgan (AARP Cmts at 16-18); and (3) that the disgorged proceeds, rather than being remitted to the Treasury, should directly or indirectly benefit electricity consumers who paid higher electricity rates as a result of the illegal agreement (AARP Cmts at 10-16).
AARP recommends that the United States withdraw from the proposed settlement and proceed in the litigation or renegotiate a settlement with Morgan that would provide equitable relief to electric utility customers, an admission by Morgan of its violation of the Sherman Act, a quantification of the total harm to consumers, and a disgorgement of all profits Morgan realized from the transaction at issue. AARP Cmts at 28. The PSC asks the Court to order the United States to supplement the record. PSC Cmts at 16.
The United States has carefully considered these objections but finds that they do not warrant modification of the proposed Final Judgment.
The commenters argue that disgorgement of $4.8 million is an inadequate remedy that will not serve as an effective deterrent, especially when compared to Morgan's approximately $21.6 million net revenues earned under the Swap and the increased prices paid by electricity consumers. Such concerns are misplaced.
The proposed remedy constitutes significant and meaningful relief. In its action against KeySpan, the United States sought disgorgement under the Sherman Act for the first time. In approving that settlement, this Court recognized that the disgorgement by a power generator engaged in an alleged anticompetitive scheme would become "an important marker for enforcement agencies and utility regulators alike." KeySpan, 763 F. Supp. 2d at 642. In this case, the United States seeks disgorgement from the financial services firm that facilitated the transaction. Just as the KeySpan remedy created an important marker for disgorgement from the principal competitor in an anticompetitive scheme, the proposed remedy in this unprecedented case demonstrates the United States' resolve to pursue financial services firms that leverage derivative agreements for anticompetitive ends, and the antitrust liability that may result from such enforcement actions. Financial services firms contemplating the use of such anticompetitive agreements will now recognize the prospect of Sherman Act liability and disgorgement, thereby diminishing their appetite for and deterring this illegal conduct. Indeed, the filing of the proposed settlement has already prompted legal commentators to warn about the enforcement issues raised by this case, including the duty of financial services firms to consider the implications of their agreements on competition in the underlying markets.
The PSC and AARP nevertheless argue that disgorgement of anything short of the $21.6 million in net revenues earned by Morgan under the Swap
The United States recognizes that it has not proved its case at trial and that "a court considering a proposed settlement does not have actual findings that the defendant engaged in illegal practices, as would exist after a trial." SBC Commc'ns, 489 F. Supp. 2d at 15 (citing Microsoft, 56 F.3d at 1461). The $4.8 million disgorgement amount is the product of settlement negotiations and accounts for litigation risks and costs. It is appropriate to consider litigation risk and the context of a settlement when evaluating whether a proposed remedy is in the public interest.
Here, the litigation costs and risks are not insignificant. The United States would have had to establish at trial that the KeySpan Swap caused anticompetitive effects in the New York capacity market, a complex endeavor that would have required substantial fact and expert testimony and evidence. And, in the present case against Morgan Stanley, the United States would have had the additional burden of establishing the liability of a financial services firm for using a derivative agreement to facilitate an anticompetitive effect even though the company itself was not a participant in the underlying market. Assuming the United States prevailed on liability, there would be additional risk, as discussed above, in establishing the proper disgorgement amount. While the United States is confident that it could prevail on these issues at trial, the settlement obviates the risk--and significant cost--of litigation.
The PSC and AARP also argue that the reasonableness of the proposed remedy should be evaluated in light of the ratepayer harm caused by Morgan. PSC Cmts at 13-15; AARP Cmts at 5, 11, 16. In essence, they seek a disgorgement amount that takes into account the losses suffered by retail electricity consumers. As this Court recognized in KeySpan, such comments "fail to comprehend the nature of the disgorgement remedy. The 'primary purpose of disgorgement is not to compensate investors,' but rather to divest a wrongdoer of the proceeds of their misconduct." KeySpan, 763 F. Supp. 2d at 642 (quoting SEC v. Cavanaugh, 445 F. 3d 105, 117 (2d Cir. 2006)). Indeed, the extent of market harm is not relevant to the disgorgement calculation; once a violation has been established, a district court "possesses the equitable power to grant disgorgement without inquiring whether, or to what extent, identifiable private parties have been damaged by [the violation]."
In this case, the source of Morgan's ill-gotten gains is the revenues it earned under the derivative agreements. Indeed, the derivative agreements represent Morgan's only source of revenue in this case. Morgan did not participate in the actual capacity market and thus it did not earn any auction revenues, much less pocket consumer overpayments. Moreover, as the United States explained in the KeySpan proceedings,
AARP argues that the proposed final judgment is not in the public interest because it does not contain an admission or finding that Morgan violated the law. Similarly, the PSC quotes language from SEC v. Citigroup challenging the sufficiency of a consent judgment "that does not involve any admissions" by the defendant.
Government antitrust suits are governed by a specialized statutory regime that provides no basis to require that consent decrees include either a finding or an admission of liability.
Congress confirmed its continuing recognition of the importance of consent decrees when it amended the Clayton Act in 1974 to specify procedural requirements governing a district court's determination of whether entry of a proposed consent decree in a government antitrust case is in the public interest. Antitrust Procedures and Penalties Act, SS 2, Pub. L. No. 93-528, 88 Stat 1706 (1974), codified at 15 U.S.C. SS 16(b)-(h) ("Tunney Act"). The repeated references to the "alleged" violation in the language of the Tunney Act strongly suggest that Congress did not expect decrees arising under the antitrust laws to contain admissions of liability.
The entry of a consent decree is a judicial act which requires the approval of a United States district court. Once entered the consent decree represents a contract between the government and the respondent upon which the parties agree to terminate the litigation. Pursuant to the terms of the decree, the defendant agrees to abide by certain conditions in the future. However the defendant does not admit to having violated the law as alleged in the complaint. Obviously, the consent decree is of crucial importance as an enforcement tool, since it permits the allocation of resources elsewhere.
The corresponding House Report is equally clear on the point: "Ordinarily, defendants do not admit to having violated the antitrust or other laws alleged as violated in complaints that are settled."
Accordingly, the government routinely enters into antitrust consent decrees explicitly disclaiming admissions or findings of liability.
Following enactment of the Tunney Act, courts have expressly recognized the Congressional intent to preserve the policy of encouraging antitrust consent decree expressed in that legislation.
AARP's contention that absent an admission of wrongdoing or an
AARP argues that Morgan's $4.8 million disgorgement payment should be made to entities other than the U.S. Treasury in order to benefit the electricity customers in New York City who paid higher prices as a result of Morgan's conduct. The United States shares AARP's concern for the New York City ratepayers and, indeed, brought this case and sought disgorgement in order to deter financial services firms from entering into financial arrangements that cause anticompetitive effects. The United States has carefully considered the suggested alternative uses for the disgorgement proceeds but has determined that payment to the U.S. Treasury is the most appropriate result in this circumstance.
The alternative distribution plan proposed by AARP seeks, in effect, to restore funds to ratepayers. As this Court recognized in KeySpan, 763 F. Supp. 2d at 643. A remedy that seeks to reimburse funds to New York City ratepayers would raise questions relating to the filed rate doctrine, which bars remedies (such as damages) that result, in effect, in payment by customers and receipt by sellers of a rate different from that on file for the regulated service. See generally Square D Co. v. Niagara Frontier, 476 U.S. 409, 423 (1986). Indeed, a lawsuit filed by private plaintiffs seeking damages from KeySpan and Morgan based on the Swap has been dismissed on the ground that the action is barred as a matter of law under the filed rate doctrine.
In this case, the United States specifically chose to seek disgorgement, rather than restitution, as a remedy for this violation. As discussed in the CIS, disgorgement is particularly appropriate on the facts of this case to fulfill the remedial goals of the Sherman Act. CIS at 9-10. Disgorgement also provides finality, certainty, avoidance of transaction costs, and potential to do the most good for the most people. As in KeySpan, the proposed remedy here is well within the reaches of the public interest.
After careful consideration of the public comments, the United States remains of the view that the proposed Final Judgment provides an effective and appropriate remedy for the antitrust violation alleged in the Complaint and that its entry would therefore be in the public interest.
The United States is submitting this Response and the public comments to the
Respectfully submitted, /s/ Jade Alice Eaton,
On September 30, 2011, the United States Department of Justice Antitrust Division ("DOT") filed a Complaint commencing this civil antitrust action against defendant Morgan Stanley. On the same day, DOJ filed a proposed Final Judgment, agreed to by Morgan Stanley, which would settle the case subject to court review and approval, along with a Competition Impact Statement ("CIS") in support of the proposed settlement.
AARP is a nonpartisan, nonprofit organization that helps people over the age of 50 to exercise independence, choice, and control in ways beneficial to them and to society as a whole.
Many AARP members were adversely affected by the antitrust violations alleged in this action, which artificially increased prices in the electric capacity markets of the New York Independent System Operator ("NYISO"). Although the excessive charges were paid in the first instance by load-serving utilities such as Con Edison, they were directly passed on to utility customers. Utility customers had no way to escape payment of the inflated charges when their monthly electric bills were adjusted to include the costs.
As consumers, AARP members depend upon the protection of the antitrust laws against the unlawful exercise of monopoly or market power, such as occurred in this case. They must also rely upon the vigorous enforcement of the antitrust laws by DOJ and the courts.
AARP commends DOJ for challenging Morgan Stanley's use of financial derivatives to facilitate gaming by
The Complaint alleges that Morgan Stanley violated Section 1 of the Sherman Act
Under Morgan Stanley's derivative contract with the largest seller in the relevant market, Keyspan Corporation ("Keyspan"), Morgan Stanley paid Keyspan whenever NYISO auction prices exceeded a fixed level ($7.57/MW). This rewarded Keyspan when it set the NYISO clearing price at the maximum. Even if all of its capacity was not sold at its high price, Keyspan was assured of benefitting from it through the derivative contract. Under Morgan Stanley's parallel derivative contract with Astoria, Morgan Stanley guaranteed Astoria a fixed floor price for all its capacity sales, regardless of the prices established in the NYISO auctions, and Astoria agreed to pay Morgan Stanley whenever the NYISO auction price exceeded the floor price in the derivative contract. Morgan Stanley could take profits reaped by Astoria due to the artificially high price, and give them to Keyspan. The derivatives thus worked to insure Keyspan against lost profits if it lost some sales by bidding high, at the market rate cap. They assured Astoria that it would receive a known fixed price for all of its capacity, regardless of the outcome of the NYISO auctions.
The NYISO pays the market clearing price to all sellers, including those who offered capacity at a lower price. As a result, the total economic damage to electric customers exceeds the ill-gotten gains of Morgan Stanley and the two utilities. There is no quantification or estimate of this damage to the public and to customers in the Complaint or other papers in the record. One major capacity buyer, Consolidated Edison Company of New York, Inc. ("Con Edison"), estimated the inflated capacity costs to be approximately $159 Million in 2006.
Simultaneously with the filing of the complaint, and without further proceedings, DOJ and Morgan Stanley filed a proposed Final Judgment, which embodies their agreement to settle the case. Key provisions of the Final Judgment are:
* Morgan Stanley admits no wrongdoing and the lawsuit is terminated,
* Morgan Stanley agrees to disgorge to the government only $4.8 million of its $21.6 million profit from its derivative contracts.
The Tunney Act establishes the procedure and standard of review applicable to the proposed settlement of an antitrust case brought by DOJ:
(1) Before entering any consent judgment proposed by the United States under this section, the court shall determine that the entry of such judgment is in the public interest. For the purpose of such determination, the court shall consider--
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest, and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
15 U.S.C. SS 16(e)(1). (Emphasis added). The Tunney Act standard was recently applied in the context of the DOJ settlement with Keyspan, involving the same derivative contract:
[T]he Tunney Act allows courts to weigh, among other things, the relationship between the allegations set forth in the government's complaint and the remedy imposed by the proposed final judgment, whether the proposed final judgment is overly ambiguous, whether the enforcement mechanisms it employs are adequate, and whether the proposed final judgment may affirmatively prejudice third parties. See United States v. Microsoft Corp., 56 F.3d 1448, 1461-62 (DCCir. 1995) (per curiam). The court may not, however, "make a de novo determination of facts and issues" in conducting its public interest inquiry. United States v. Western Elec. Co., 993 F.2d 1572, 1577 (DCCir.), cert. denied, 510 U.S. 984, 114 S.Ct. 487, 126 L.Ed.2d 438 (1993) (internal quotation and citation omitted). Rather, "jtjhe balancing of competing social and political interests affected by a proposed antitrust decree must be left, in the first instance, to the discretion of the Attorney General." Id. (internal quotation and citation omitted). The court should therefore reject the proposed final judgment only if "it has exceptional confidence that adverse antitrust consequences willresult--perhaps akin to the confidence that would justify a court in overturning the predictive judgments of an administrative agency." Microsoft, 56 F.3d at 1460 (internal quotations and citation omitted).
In conducting its inquiry, the court is not required to hold a hearing or conduct a trial. See 119 Cong. Rec. 24,598 (1973);
The Keyspan decision, quoted above, misapprehends the standard of review. The Tunney Act not only "allows" courts to consider the listed factors in its review. It requires such consideration. The Tunney Act was amended in the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 specifically to clarify that reviewing courts "shall" (instead of "may") take each of the *enumerated factors into account in their review of a proposed antitrust case settlement. 15 U.S.C. SSSS 16(e)(1)(A) and (B).
AARP demonstrates below that the proposed settlement fails to pass muster under the standards for approval of DOJ antitrust settlements. DOJ should withdraw its consent to the settlement, and conduct further proceedings to develop the record and proceed to trial, if a renegotiated agreement which addresses the concerns in these comments cannot be made.
1. The Proposed Settlement Is Not in the Public Interest Because It Provides No Benefit to Customers Harmed.
The Morgan Stanley/Keyspan/Astoria derivatives supported gaming of the NYISO market, causing very serious financial harm to customers by artificially inflating the NYISO market prices for electric capacity. The DOJ Complaint and Competitive Impact Statement ("CIS") very prominently state that the "likely effect" of the alleged antitrust violation "was to increase capacity prices for the retail electricity suppliers who must purchase capacity, and, in turn, to increase the prices consumers pay for electricity." Complaint, pp. 1-2, CIS 1-2 (emphasis added). The prayer for relief in the DOJ Complaint includes a request for equitable relief to "dissipate the anticompetitive effects of the violation." Complaint If 40. The only "anticompetitive effects" identified in the record are the artificial increase in NYISO prices and the higher prices paid by consumers.
The record at this stage contains no evidence of the magnitude of the injury to consumers, including many AARP members living in the New York City area. As previously discussed, there are indications outside the record that the price of capacity was artificially raised by approximately $157 million in 2006 by the gambit supported by the Morgan Stanley derivatives, and the term of the agreements went beyond 2006. The New York State Public Service Commission stated in its comments on the settlement of the Keyspan case arising from the same transactions that the harm to consumers "could have totaled hundreds of millions of dollars.* * *"
Under the proposed settlement there is not one penny for the injured consumers. Instead, the entire $4.8 million of monetary relief is to be paid to the United States Treasury. This does nothing to address the injury to those most directly harmed, the electric customers whose bills were artificially increased. There is no explanation in the CIS of why this is so.
The Tunney Act requires DOJ, in its CIS, to provide "a description and evaluation of alternatives to such proposal actually considered by the United States." 15 U.S.C. SS 16(b)(6). The CIS, however, contains no description or evaluation of alternative relief that would provide at least some benefit to the injured customers. Any claim by DOJ that equitable relief for the benefit of injured consumers was never "actually considered" would not be credible. In the Keyspan case, involving the same derivative agreement, the settlement also provided no relief to consumers. The absence of any equitable relief for consumers drew vigorous protest in that case, in the comments of the New York State Public Service Commission, the New York State Consumer Protection Board, the City of New York, Con Edison, and AARP. Surely DOJ would at least have considered, however briefly, whether to seek some measure of relief for electric customers who suffered from the wrong.
AARP expects that DOJ, in its response to these comments, will cite the recent court approval of the Keyspan settlement, which lacked any relief to customers. That, however, does not bar inclusion of such relief in the settlement of this case.
In rejecting requests for equitable relief to consumers the court in the Keyspan case relied upon a perceived "filed rate" barrier and potential "transaction costs" of administering monetary relief to customers, stating:
Finally, this Court rejects the notion that the Consent Decree should only be approved if the disgorged proceeds are returned to New York City consumers. While such relief might be optimal, payment of the disgorged proceeds to the Treasury is nevertheless "within the reaches of the public interest." Alex. Brown, 963 F. Supp. at 238 (quotations omitted). It can be effectuated without incurring transaction costs and inures to the public benefit. See
Moreover, the Government raises valid concerns regarding potential violation of the filed-rate doctrine.
"The filed rate doctrine bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable. Simply stated, the doctrine holds that any 'filed rate'--that is, one approved by the governing regulatory agency is per se reasonable and unassailable in judicial proceedings brought by ratepayers."
This case does not involve any utility rate filed by Morgan Stanley. It involves profits extracted from large numbers of customers by sellers using Morgan Stanley's services and derivative instruments as tools. Thus the "filed rate" rationale for not providing any relief to customers, perceived by the court to be a barrier in Keyspan,
The transaction cost issue perceived to be a barrier to customer relief in Keyspan is also easily hurdled. Just as utilities paid artificially inflated NYISO charges for capacity and passed those charges on to their customers, utilities can pass on equitable monetary relief intended for the benefit of their customers in the normal course of business without excessive transaction costs. For example, Con Edison passes on variations in capacity costs to its customers every month, in monthly rate adjustments, through its "Market Adjustment Clause." The Market Adjustment Clause takes into account 36 variable factors every month, including "(8) certain NYISO-related charges and credits * * *."
2. Whenever any public utility company or municipality, whose rates are subject to the jurisdiction of the commission, shall receive any refund of amounts charged and collected from it by any source, the commission shall have power after a hearing, upon its own motion, upon complaint or upon the application of such public utility company or municipality, to determine whether or not such refund should be passed on, in whole or in part, to the consumers of such public utility company or municipality and to order such public utility company or municipality to pass such refunds on to its consumers, in the manner and to the extent determined just and reasonable by the commission.
The New York State Public Service Commission supported the return of overcharges as equitable relief to customers in Keyspan. Surely the Public Service Commission would cooperate, if necessary in the oversight of monetary relief intended for utility customers when a provision for such relief is contained in an antitrust case settlement.
In sum, unlike Keyspan, there is no "filed rate" barrier in this case, and AARP has demonstrated that consumer benefits could be efficiently administered without the speculative transaction costs feared in Keyspan. The proposed remedy allowing the government to receive all the profits that Morgan Stanley agrees to cede, without consideration of the amount of harm suffered by customers and without any equitable relief to the customers, is not equitable and is not in the public interest.
2. The CIS Should Be Withdrawn or Amended by DOJ To Support Its Reasons for Termination of the Action With No Finding of Wrongdoing by Morgan Stanley.
As required by the Tunney Act, DOJ filed a Competitive Impact Statement ("CIS")
Proposed Final Judgment, p. 1. The importance of this provision letting Morgan Stanley off the hook is underscored by the Complaint, in which DOJ demands "What the Court adjudge and decree that the Morgan/Keyspan Swap constitutes an illegal restraint in the sale of installed capacity in the New York City market in violation of Section 1 of the Sherman Act." Complaint, P 39. Also, DOJ makes numerous references in the CIS to Morgan Stanley's conduct as having constituted a violation of the Sherman Act:
The United States brought this lawsuit against Defendant Morgan Stanley * * * to remedy a violation of Section 1 of the Sherman Act, 15 U.S.C. SS 1. [CIS 1]
The proposed Final Judgment remedies this violation * * * [CIS 2].
Disgorgement will deter Morgan and others from future violations of the antitrust laws. [CIS 2]
[D]isgorgement will effectively fulfill the remedial goals of the Sherman Act to "prevent and restrain" antitrust violations as it will send a message of deterrence to those in the financial services community considering the use of derivatives for anticompetitive ends. [CIS 9]
Despite these assertions by DOJ in its CIS that there were violations of the law, it is the Final Judgment that counts most. The Final Judgment affirmatively disavows any finding or admission that the law was violated by Morgan Stanley. There is no explanation or factual basis in the CIS to support DOJ's abandonment in the Final Judgment of the primary object of the action. It is incumbent upon DOJ to withdraw and amend its CIS to include its rationale for ending the case with no finding or admission that Morgan Stanley violated the antitrust laws, and with no commitment by Morgan Stanley that it will not engage in similar conduct in the future. The public should then be allowed an additional opportunity to respond to any amended or new CIS.
With no finding that Section 1 of the Sherman Act is violated by the use of financial derivatives to backstop risks when sellers game electricity markets, no one, including Morgan Stanley, really knows whether this gambit is actually illegal. As a result, Morgan Stanley and any other future wrongdoers will still lack scienter, an essential element for criminal sanctions under Section 2 of the Sherman Act. Thus, future wrongdoers can try the gambit again and need be concerned only about trivial civil sanctions.
3. DOJ Should Withdraw its Consent to the Settlement or Amend its CIS to Provide Support for its Conclusion that the Disgorgement Proposed in this Case will be a Deterrent.
Disgorgement of profits is one of the equitable remedies available to address violations of the Sherman Act. United States v. Keyspan Corp., 763 F. Supp. 2d 633, 638-641 (SDNY 2011). DOJ repeatedly emphasizes the settlement's
Disgorgement will deter Morgan and others from future violations of the antitrust laws. [CIS 2]
The proposed Final Judgment requires Morgan to disgorge profits gained as a result of its unlawful agreement restraining trade. Morgan is to surrender $4.8 million to the Treasury of the United States. [CIS 8]
Requiring disgorgement in these circumstances will thus protect the public interest by deterring Morgan and other parties from entering into similar financial agreements that result in anticompetitive effects in the underlying markets, or from otherwise engaging in similar anticompetitive conduct in the future. [CIS 8]
A disgorgement remedy should deter Morgan and others from engaging in similar conduct and thus achieves a significant portion of the relief the United States would have obtained through litigation * * * [CIS 11]
There is no evidence in the record, however, to support these broad claims that the settlement crafted by Morgan Stanley and DOJ would have any deterrent effect on anyone.
According to the CIS, "Morgan earned approximately $21.6 million in net revenues from the Morgan/Keyspan Swap and the Morgan/Astoria Hedge." CIS 6 DOJ acknowledges that only a portion of Morgan Stanley's profits would be disgorged if the proposed settlement is approved, attempting to put the best light on a small recovery:
While the disgorged sum represents less than all of Morgan's net transaction revenues under the two agreements, [fn. omitted] disgorgement will effectively fulfill the remedial goals of the Sherman Act to "prevent and restrain" antitrust violations as it will send a message of deterrence to those in the financial services community considering the use of derivatives for anticompetitive ends. [CIS 9] (emphasis added).
If the 21% to be disgorged under the proposed settlement is "less than all" of the $21.6 million profit, as DOJ puts it, perhaps the amount of ill-gotten gains retained by Morgan Stanley--$16.8 million, or 79%--might be said to be "nearly all" of the net profit.
The CIS fails to explain how disgorgement of only $4.8 million, and allowing Morgan Stanley to keep $16.8 million of its profits from the scheme would deter similar future conduct by Morgan Stanley or anyone. There is simply no evidence in the record to support DOJ's conclusion that the proposed settlement "will send a message of deterrence to those in the financial services community considering the use of derivatives for anticompetitive ends." Id. Given the minimal development of the record, no one can see the derivative instruments used by Morgan Stanley. If the offending derivative agreements are not disclosed, there is even less likelihood of deterring similar transactions by others. These should have been provided by DOJ with the CIS as "determinative documents.
DOJ is ordinarily entitled to deference in assessing the effectiveness of a remedy it agrees to, but here its conclusion that disgorgement of only $4.8 million is sufficient is refuted by every day common sense and arithmetic. The CIS does not explain in plain language how allowing a wrongdoer to keep 79% of its ill-gotten gains can be seen as any kind of "message of deterrent." Rather, the "message" to some may really be that large profits can still be made from gaming electricity markets using financial derivative agreements to support bidding strategies. If found out, there will probably be no criminal antitrust sanction, and at worst one may keep the majority of the profit in a settlement with DOJ. The real lesson taught by the proposed settlement to potential manipulators could actually encourage similar conduct and further harm competition. This is not a remote or speculative concern. "Manipulation is a potentially serious problem in all derivatives markets, energy included."
The $4.8 million disgorgement is probably well within the range of what Morgan Stanley's litigation expenses might be if the case is litigated. The real lesson of the disclaimer and the small disgorgement is that this is merely a nuisance settlement. As recently stated by Judge Rakoff in the course of rejecting a settlement proposed of the SEC:
[A] consent judgment that does not involve any admissions and that results in only very modest penalties is just as frequently viewed, particularly in the business community, as a cost of doing business imposed by having to maintain a working relationship with a regulatory agency, rather than as any indication of where the real truth lies.
SEC v Citigroup Global Markets, Inc., 11 Civ. 7387 (Nov. 28, 2011).
4. The CIS Fails to Support the Claim that the Settlement is Reasonable Because it Avoids Litigation Risk.
DOJ attempts to justify the proposed settlement by invoking its risk of litigation, i.e., that it might lose the case if it goes to trial:
The $4.8 million disgorgement amount is the product of settlement and accounts for litigation risks and costs. [CIS 9]
Had the case against Morgan proceeded to trial, the United States would have sought disgorgement of the $21.6 million in net transaction revenues Morgan earned under both the Morgan/Keyspan Swap and the Morgan/Astoria Hedge. At trial, Morgan--in addition to raising arguments as to its lack of liability in general--would have disputed that the entire $21.6 million earned under both agreements would be cognizable as ill-gotten gains. [CIS 9, fn 4].
While DOJ is ordinarily given considerable deference to its assessment of the merits of its case, it does not cite any authority or facts to show that this case is difficult. Based on the CIS and the record, there are written derivative contracts evidencing the profit-sharing arrangement of the utility counterparties, facilitated by Morgan Stanley as middleman. The utilities' bidding records should be readily available from the NYISO. What is the problem with the case? DOJ gives no hint that its case is in any way doubtful.
This case is only a variation on classic bid-rigging and price fixing. Here, Keyspan bid high, in order to elevate the auction price paid to all sellers, Astoria paid Morgan Stanley some of the extra profits it made due to the elevated price, and Morgan Stanley paid Keyspan, keeping a net $21.6 million profit for its services in facilitating the price raising game. Had the utility sellers made an agreement bilaterally with the same results, it would be seen as a crystal clear antitrust violation. See Addyston Pipe & Steel Co. v. United States, 175 US 211, 243 (1899) ("the defendants enter, not in truth as competitors, but under an agreement or combination among themselves which eliminates all competition between them for the contract, and permits one of their number to make his own bid and requires the others to bid over him"). It should be equally clear that a middleman like Morgan Stanley, who
The CIS makes an exaggerated claim that DOJ has won victory in the proposed settlement, stating:
A disgorgement remedy should deter Morgan and others from engaging in similar conduct and thus achieves a significant portion of the relief the United States would have obtained through litigation. * * * [CIS 11] (emphasis added).
If the $4.8 million to be disgorged is "a significant portion" of the relief sought in the complaint, then the $16.8 million retained by Morgan Stanley could be said to be three times as "significant" because Morgan Stanley keeps the bulk of its profit from facilitating the scheme.
5. The Keyspan Case Is Not A Barrier to a Consumer Remedy in This Case.
DOJ relies heavily on the prior decision approving the settlement of its antitrust case against Keyspan, involving the same derivative contract, where $12 million of Keyspan's $48 million profit was disgorged, with no equitable relief for consumers:
Keyspan, pursuant to a Final Judgment sought by the United States, has surrendered $12 million as a result of its role in the Morgan/Keyspan Swap.3 See United States v. Keyspan Corp., 763 T. Supp. 2d 633,637-38 (S.D.N.Y. 2011). Securing similar disgorgement from the other responsible party to the anticompetitive agreement will protect the public interest by depriving Morgan of a substantial portion of the fruits of the agreement. The effect of the swap agreement was to effectively combine the economic interests of Keyspan and Astoria, thereby permitting Keyspan to increase prices above competitive rates, and this result could not have been achieved without Morgan's participation in the swap agreement. Requiring disgorgement in these circumstances will thus protect the public interest by deterring Morgan and other parties from entering into similar financial agreements that result in anticompetitive effects in the underlying markets, or from otherwise engaging in similar anticompetitive conduct in the future.
CIS 8, (emphasis added). If disgorgement of $4.8 million constitutes a "substantial portion of the fruits of the agreement," then the amount of ill-gotten profits retained by Morgan Stanley is three times as "substantial."
As the emphasized language in the quotation above shows, the successful gaming of the NYISO market could not have been achieved by the utilities without Morgan Stanley acting as middleman. It was not something Keyspan and Astoria could have accomplished themselves in a bilateral agreement without flagrant and knowing violation of antitrust law, which might expose them to possible criminal charges and large fines under Section 2 of the Sherman Act. Because its role as middleman was crucial to the scheme, it is appropriate to require Morgan Stanley to disgorge proportionately more than Keyspan, not less.
The proposed settlement not only fails to "deprive the antitrust defendants of the benefits of their conspiracy." Intl Boxing Club v. United States, 358 U.S. 242 at 253 (1959). (quotation omitted), it does not even come close to that goal. Instead, it allows Morgan Stanley to retain the lion's share, 79%, of the benefits. "[A]dequate relief in a monopolization case should * * * deprive the defendants of any of the benefits of the illegal conduct * * *" United States v. Grinnell Corp., 384 U.S. 563, 577 (1966). Accord, United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 368 (1961) ("Those who violate the Act may not reap the benefits of their violations * * *" (quotations omitted)). In any settlement parties may obtain something less in the compromise than they initially sought when commencing the litigation, but the woefully trivial disgorgement by Morgan Stanley of only $4.8 million of its profits cannot possibly be an adequate equitable remedy or in the public interest.
AARP recommends that DOJ withdraw from the proposed settlement and proceed in the litigation, or renegotiate with Morgan Stanley to include the following in any new or revised settlement agreement:
A. Allocation of profits made by Morgan Stanley to provide equitable relief to electric utility consumers harmed by the violation,
B. Admission by Morgan Stanley of its violation of the Sherman Act as described in the Complaint,
C. Quantification of the total harm to consumers and markets, and
D. Disgorgement by Morgan Stanley of all profits it realized from the derivatives used to implement the price raising scheme.