# Ricci v. Chicago Mercantile Exchange/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Burger
* Dissenting Opinions Douglas Marshall
[p290] MR. JUSTICE WHITE delivered the opinion of the Court.
The question before us is whether in this antitrust case the Court of Appeals for the Seventh Circuit properly stayed further judicial action pending administrative proceedings which the court deemed available under the Commodity Exchange Act, 42 Stat. 998, as amended, 7 U.S.C. § 1 et seq.
The case began when petitioner Ricci filed a complaint against the Chicago Mercantile Exchange, its president, vice president, and chairman of the board, and against the Siegel Trading Company, a member of the Exchange, and its president, charging a conspiracy in violation of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1. The complaint alleged that Ricci had purchased a membership in the Exchange in 1967, using funds borrowed from the Trading Company, and that in February 1969 the Exchange, at the instance of the Trading Company, transferred the membership to another, without notice and hearing, utilizing a blank transfer authorization that had previously been revoked. [p291] Allegedly, this course of conduct violated both the rules of the Exchange and the Commodity Exchange Act and was pursuant to an unlawful conspiracy aimed at restraining the conduct of Ricci's business. The result was, the complaint asserted, that Ricci was excluded from trading on the Exchange from February 11, 1969, until March 4, 1969, when he purchased another membership at a considerably higher price than the transferred membership had previously cost.
On motion of respondents, the District Court dismissed the complaint. The Court of Appeals reversed that judgment; but because the challenged conduct was deemed subject to the jurisdiction of the Secretary of Agriculture (Secretary) or the Commodity Exchange Commission (Commission) by virtue of the provisions of the Commodity Exchange Act, the District Court was directed to stay further proceedings to permit administrative action to take place. 447 F.2d 713 (CA7 1971). We granted certiorari, 405 U.S. 953 (1972), and now affirm the judgment of the Court of Appeals.

## I

The Commodity Exchange Act, first passed in 1922 and from time to time amended—the most recent [p292] substantial amendments being in 1968—makes dealing in commodity futures a crime except when undertaken by or through members of a board of trade that meets certain statutory criteria and that is designated as a "contract market" by the Secretary. 7 U.S.C. §§ 6 and 6h. Contract markets must file with the [p293] Secretary their bylaws, rules, and regulations, and have the express statutory duty to enforce all such prescriptions (1) "which relate to terms and conditions in [p294] contracts of sale... or relate to other trading requirements, and which have not been disapproved by the Secretary of Agriculture pursuant to" his statutory authority, id., § 7a (8), or (2) "which provide minimum financial [p295] standards and related reporting requirements for futures commission merchants who are members of such contract market, and which have been approved by the Secretary of Agriculture," id., § 7a (9). If any contract market is not enforcing its rules of government made a condition of its designation, or if it is violating any provision of the Act, the Commission, an official agency established by the Act, is authorized, upon notice and hearing and subject to judicial review, to suspend or revoke the designation of the board of trade as a contract market, id., § 8 (a), or may [p296] order such contract market and any director, officer, agent, or employee to cease and desist from such conduct, id., at § 13a. Under the relevant regulations, any [p297] interested person having information concerning such violation may request the Commission to institute proceedings, or the Commission may initiate proceedings on its own motion, and there is provision for persons seeking intervention in such proceedings.

## II

[p298] It was against this statutory background that petitioner alleged he had been deprived of his membership contrary to the rules of the Exchange, the Commodity [p299] Exchange Act, and the Sherman Act. And it was in this context that the Court of Appeals, having concluded that the specific Exchange rules allegedly violated were within the bounds of adjudicative and remedial jurisdiction of the Commodity Exchange Commission, directed the District Court to hold its hand and afford the opportunity for administrative consideration of the dispute between petitioner and the alleged coconspirator-defendants.
The problem to which the Court of Appeals addressed itself is recurring. It arises when conduct seemingly [p300] within the reach of the antitrust laws is also at least arguably protected or prohibited by another regulatory statute enacted by Congress. Often, but not always, the other regime includes an administrative agency with authority to enforce the major provisions of the statute in accordance with that statute's distinctive standards, which may or may not include concern for competitive considerations.
Silver v. New York Stock Exchange, 373 U.S. 341 (1963), was a case where the conduct challenged in an antitrust complaint was not within the jurisdiction of an administrative agency but was nevertheless claimed to be immune from antitrust challenge by virtue of the Securities Exchange Act of 1934. Silver sought to recover damages allegedly suffered when his wire connections with Exchange members were terminated without notice or hearing under Exchange rules adopted pursuant to the Securities Exchange Act of 1934, 48 Stat. 881, as amended, 15 U.S.C. § 78a et seq.. Under this Act, the Securities and Exchange Commission had general power to approve or disapprove Exchange rules, but it had no authority to deal with challenges, such as Silver's, to specific applications of Exchange rules. Moreover, the statute conferred on the Exchange no express exemption from the antitrust laws. We declined to hold that Congress intended to oust completely the antitrust laws and supplant them with the self-regulatory scheme authorized [p301] by the Exchange Act. Repeal of the antitrust laws was to be implied "only if necessary to make the Securities Exchange Act work, and even then only to the minimum extent necessary." 373 U.S., at 357. The question thus became the extent to which, if any, the "character and objectives of the duty of exchange self-regulation contemplated by the Securities Exchange Act are incompatible with the maintenance of an antitrust action." Id., at 358. Conceding that the "entire public policy of self-regulation, beginning with the idea that the Exchange may set up barriers to membership, contemplates that the Exchange will engage in restraints of trade which might well be unreasonable absent sanction by the Securities Exchange Act," id., at 360, and hence that "particular instances of exchange self-regulation which fall within the scope and purpose of the Securities Exchange Act may be regarded as justified in answer to the assertion of an antitrust claim," id., at 361, the Court finally concluded that nothing in the terms or policy of the Act required or contemplated that a self-regulating exchange be permitted to impose serious deprivations without notice and opportunity for a hearing, and that neither the statute nor Exchange rules posed any legal barrier to the antitrust action.
In arriving at this conclusion, the Court expressly noted that the Securities and Exchange Commission had no authority to review specific instances of enforcement of Exchange rules; that this "obviate[d] any need to consider whether petitioners were required to resort to the Commission for relief before coming into court," id., at 358, and avoided "any problem of conflict or coextensiveness of coverage with the agency's regulatory power," ibid.; and that if there had been such jurisdiction in the Commission with "ensuing judicial review... a different case would arise concerning exemption from [p302] the operation of laws designed to prevent anticompetitive activity, an issue we do not decide today." Id., at 358 n. 12.
That "different case" is now before us, but in the context of the Commodity Exchange Act, and we agree with the Court of Appeals that, given administrative authority to examine the Ricci-Exchange dispute in the light of the regulatory scheme and Exchange rules, the antitrust action should be stayed until the administrative officials have had opportunity to act. This judgment rests on three related premises: (1) that it will be essential for the antitrust court to determine whether the Commodity Exchange Act or any of its provisions are "incompatible with the maintenance of an antitrust action," id., at 358; (2) that some facets of the dispute between Ricci and the Exchange are within the statutory jurisdiction of the Commodity Exchange Commission; and (3) that adjudication of that dispute by the Commission promises to be of material aid in resolving the immunity question.
[p303] As to the first premise, the argument that the Commodity Exchange Act to some extent limits the applicability of the antitrust laws, and may limit them in this case, is plainly substantial. Repeal of the antitrust laws is not to be lightly assumed. United States v. Philadelphia National Bank, 374 U.S. 321, 350 (1963); Silver v. New York Stock Exchange, supra, at 357; California v. FPC, 369 U.S. 482, 485 (1962); Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456-457 (1945); United States v. Borden Co., 308 U.S. 188, 198 (1939). But here the express will of Congress is that to deal in commodity futures one must either be, or deal through, a member of a board of trade having specified qualifications and carrying official designation as a contract market. The Act clearly contemplates a membership organization and hence the existence of criteria for the acquisition, transfer, and loss of membership. The Chicago Mercantile Exchange has such membership rules, and it had the statutory duty to enforce them to the extent that they constituted or were related to "trading requirements," 7 U.S.C. § 7a (8). If the transfer of Ricci's membership was pursuant to a valid rule, the immediate question for the antitrust court is whether the rule itself and Ricci's exclusion under it are insulated from antitrust attack. The question has substance, for the Commodity Exchange Act, like the Securities Exchange [p304] Act, contemplates that the Exchange and its members will "engage in restraints of trade which might well be unreasonable absent sanction" by the Act. Silver v. New York Stock Exchange, supra, at 360. See Board of Trade of the City of Chicago v. United States, 246 U.S. 231, 238 (1918). On the other hand, if, as Ricci alleges, loss of his membership was contrary to Exchange Rules, the antitrust action should very likely take its normal course, absent more convincing indications of congressional intent than are present here that the jurisdictional and remedial powers of the Commission are exclusive.
The question whether this membership dispute is within the jurisdiction of the Commodity Exchange Commission, the second premise for our judgment, was answered in the affirmative by the Court of Appeals. Because trading in futures may be done only by or through members, the membership rules of the Exchange were held to relate to "trading requirements" and were thus among those rules which the Exchange could not ignore without violating the Act and bringing itself within the jurisdiction of the Commission to adjudicate and remedy any violation "of the provisions of this chapter or any of the rules, regulations, or orders of the Secretary... or the commission thereunder...." 7 U.S.C. §§ 8 (a) and 13a. We need not finally decide the jurisdictional issue for present purposes, but there is sufficient statutory support for administrative authority in this area that the agency should at least be requested to institute proceedings.
[p305] We also think it very likely that a prior agency adjudication of this dispute will be a material aid in ultimately deciding whether the Commodity Exchange Act forecloses this antitrust suit, a matter that seems to depend in the first instance on whether the transfer of Ricci's membership was in violation of the Act for failure to follow Exchange rules. That issue in turn appears to pose issues of fact and questions about the scope, meaning, and significance of Exchange membership rules. These are matters that should be dealt with in the first instance by those especially familiar with the customs and practices of the industry and of the unique marketplace involved in this case. United States v. Western Pacific R. Co., 352 U.S. 59, 64-65, 65-66 (1956); Far East Conference v. United States, 342 U.S. 570, 574-575 (1952). They are matters typically lying at the heart of an administrative agency's task and here they appear to be matters that Congress has placed within the jurisdiction of the Commodity Exchange Commission. We should recognize "that the courts, while retaining the final authority to expound the statute, should avail themselves of the aid implicit in [p306] the agency's superiority in gathering the relevant facts and in marshaling them into a meaningful pattern." Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 498 (1958). The adjudication of the Commission, if it is forthcoming, will be subject to judicial review and would obviate any necessity for the antitrust court to relitigate the issues actually disposed of by the agency decision. Cf. United States v. Philadelphia National Bank, 374 U.S., at 353-354; Federal Maritime Board v. Isbrandtsen Co., supra, at 498-499. Of course, the question of immunity, as such, will not be before the agency; but if Ricci's complaint is sustained, the immunity issue will dissolve, whereas if it is rejected and the conduct of the Exchange warranted by a valid membership rule, the court will be in a much better position to determine whether the antitrust action should go forward. Affording the opportunity for administrative action will "prepare the way, if the litigation should take its ultimate course, for a more informed and precise determination by the Court of the scope and meaning of the statute as applied to [these] particular circumstances." Ibid.

## III

MR. JUSTICE MARSHALL's dissent concedes, as it must, that it is essential for the antitrust court to make proper accommodation "between usual antitrust principles and the self-regulatory and exclusionary powers that the exchanges were obviously intended to exercise." It also concedes that where the regulatory regime is administered by an agency, the antitrust court will stay its hand to permit institution of administrative proceedings if they are "likely to make a meaningful contribution to the resolution of this lawsuit." Our differences thus narrow to whether proceedings in the Commodity Exchange [p307] Commission would be of sufficient aid to justify a stay of this antitrust action.
The dissent asserts that for present purposes the only relevant issue in the antitrust action is "whether either the rules, or their application, serves a legitimate self-regulatory goal," that the Commission has no jurisdiction to determine facts relevant to whether Exchange rules are consistent with or essential to legitimate self-regulatory ends, and that we have mistakenly premised our opinion on the existence of such jurisdiction, without which there is no basis for deferring to agency proceedings. This misapprehends our opinion and fails to come to grips with reality. We make no claim that the Commission has authority to decide either the question of immunity as such or that any rule of the Exchange takes precedence over antitrust policies. Rather, we simply recognize that Congress has established a specialized agency that would determine either that a membership rule of the Exchange has been violated or that it has been followed. Either judgment would require determination of facts and the interpretation and application of the Act and Exchange rules. And either determination will be of great help to the antitrust court in arriving at the essential accommodation between the antitrust and the regulatory regimes: The problem disappears entirely if it is found that there has been a violation of the rule; on the other hand, if it is found that the Exchange has merely followed and enforced its own rules, the antitrust court will be in a [p308] position to make a more intelligent and sensitive judgment as to whether the antitrust laws will punish what an apparently valid rule of the Exchange permits.
Accordingly, the judgment is affirmed.
So ordered.

## Notes

* ↑ Petitioner alleged in his complaint that when he was informed that Siegel Trading Company claimed to be the owner of his membership, he notified the Exchange that he was the owner of the membership; that the Trading Company was indebted to him for $18,000 in brokerage fees which offset the $15,000 he had borrowed to acquire his membership; and that the Trading Company did not have a lien on his membership under the rules of the Exchange. App. 11.
* ↑ Recognizing the public interest involved in "[t]ransactions in commodity involving the sale thereof for future delivery [futures]" and the burden upon interstate commerce imposed by "sudden or unreasonable fluctuations in... prices," 7 U.S.C. § 5, Congress, to regulate "futures" transactions, passed the "Grain Futures Act," 42 Stat. 998, the title being changed to the present "Commodity Exchange Act" in 1936, 49 Stat. 1491. The constitutionality of regulating futures trading under the Commerce Clause, Art. I, § 8, cl. 3, of the Constitution was upheld in Board of Trade of the City of Chicago v. Olsen, 262 U.S. 1 (1923). The following will indicate the content and scope of the Act: Trading in futures is to be done only by or through a member of a "contract market," 7 U.S.C. §§ 6 and 6h. The Commodity Exchange Commission (Commission) may take measures to prevent excessive speculation, id., § 6a, and certain other transactions are prohibited, id., §§ 6a and 6c. Futures commission merchants and floor brokers must register with the Secretary of Agriculture (Secretary) (a member of the Commission, id., § 2), id., §§ 6d and 6e, and to do so, must meet certain financial requirements, id., § 6f. Customers' money, securities, and property must be handled in a prescribed fashion, id., § 6d, and futures commission merchants and floor brokers must meet reporting and record keeping requirements established by the Secretary and keep such books and records open for inspection, id., § 6g. Specified transactions must be reported to the Secretary and books and records of same kept, which shall be subject to inspection, id., § 6i. To be designated a "contract market" a board of trade must meet certain conditions and requirements, id., § 7; and a contract market must perform certain duties, id., § 7a. The contract market can have its designation suspended or revoked, id., §§ 7b and 8, or be subjected to cease-and-desist orders, id., § 13a. For stated reasons persons may be excluded from trading on a contract market by the Secretary, id., § 9, or be subjected to a cease-and-desist order, id., § 13b, and it is unlawful for such persons to trade while banned, id., § 12b. Contract markets are not to exclude from membership cooperative associations or corporations except under certain conditions, id., § 10a. A contract market may have its designation vacated and subsequently be redesigned, id., § 11. The Secretary may make investigations and reports, id., § 12, and may disclose the names of traders on commodity markets, id., § 12-1. Certain acts may be punished as felonies or misdemeanors, id., §§ 13, 13-1, 13a, and 13b. Persons involved in violations of the Act or rules issued thereto may be held responsible as principals, id., § 13c (a). The Secretary or Commission is not required to report minor violations of the Act "for prosecution, whenever it appears that the public interest does not require such action," id., § 13c (b).
* ↑ Title 7 U.S.C. § 6 provides: "It shall be unlawful for any person to deliver for transmission through the mails or in interstate commerce by telegraph, telephone, wireless, or other means of communication any offer to make or execute, or any confirmation of the execution of, or any quotation or report of the price of, any contract of sale of commodity for future delivery on or subject to the rules of any board of trade in the United States, or for any person to make or execute such contract of sale, which is or may be used for (a) hedging any transaction in interstate commerce in commodity or the products or by-products thereof, or (b) determining the price basis of any such transaction in interstate commerce, or (c) delivering commodity sold, shipped, or received in interstate commerce for the fulfillment thereof, except, in any of the foregoing cases, where such contract is made by or through a member of a board of trade which has been designated by the Secretary of Agriculture as a 'contract market,' as hereinafter provided in this chapter, and if such contract is evidenced by a record in writing which shows the date, the parties to such contract and their addresses, the property covered and its price, and the terms of delivery: Provided, That each board member shall keep such record for a period of three years from the date thereof, or for a longer period if the Secretary of Agriculture shall so direct, which record shall at all times be open to the inspection of any representative of the United States Department of Agriculture or the United States Department of Justice." Title 7 U.S.C. § 6h states: "It shall be unlawful for any person— "(1) to conduct any office or place of business anywhere in the United States or its territories for the purpose of soliciting or accepting any orders for the purchase or sale of any commodity for future delivery, or for making or offering to make any contracts for the purchase or sale of any commodity for future delivery, or for conducting any dealings in commodities for future delivery, that are or may be used for "(A) hedging any transaction in interstate commerce in such commodity or the products or byproducts thereof, or "(B) determining the price basis of any such transaction in interstate commerce, or "(C) delivering any such commodity sold, shipped, or received in interstate commerce for the fulfillment thereof, "if such orders, contracts, or dealings are executed or consummated otherwise than by or through a member of a contract market; or "(2) falsely to represent such person to be a member of a contract market, or the representative or agent of such member, or to be a futures commission merchant registered under this chapter, or the agent of such registered futures commission merchant, in soliciting or handling any order or contract for the purchase or sale of any commodity in interstate commerce or for future delivery, or falsely to represent in connection with the handling of any such order or contract that the same is to be or has been executed on, or by or through any member of, any contract market."
* ↑ Title 7 U.S.C. § 7a provides: "Each contract market shall— ..... "(8) Enforce all bylaws, rules, regulations, and resolutions, made or issued by it or by the governing board thereof or any committee, which relate to terms and conditions in contracts of sale to be executed on or subject to the rules of such contract market or relate to other trading requirements, and which have not been disapproved by the Secretary of Agriculture pursuant to paragraph (7) of section 12a of this title; and revoke and not enforce any such bylaw, rule, regulation, or resolution, made, issued, or proposed by it or by the governing board thereof or any committee, which has been so disapproved...." Disapproval by the Secretary is to be pursuant to 7 U.S.C. § 12a, which provides: "The Secretary of Agriculture is authorized— ..... "(7) to disapprove any bylaw, rule, regulation, or resolution made, issued or proposed by a contract market or by the governing board thereof or any committee which relates to terms and conditions in contracts of sale to be executed on or subject to the rules of such contract market or relates to other trading requirements, when he finds that such bylaw, rule, regulation, or resolution violates or will violate any of the provisions of this chapter, or any of the rules, regulations, or orders of the Secretary of Agriculture or the commission thereunder."
* ↑ Title 7 U.S.C. § 7a states: "Each contract market shall— ..... "(9) Enforce all bylaws, rules, regulations, and resolutions made or issued by it or by the governing board thereof or by any committee, which provide minimum financial standards and related reporting requirements for futures commission merchants who are members of such contract market, and which have been approved by the Secretary of Agriculture."
* ↑ The Commission is composed of the Secretaries of Agriculture and Commerce and the Attorney General, or their designees, the Secretary of Agriculture or his designee serving as chairman, 7 U.S.C. § 2.
* ↑ Title 7 U.S.C. § 8 (a) provides: "The commission is authorized to suspend for a period not to exceed six months or to revoke the designation of any board of trade as a 'contract market' upon a showing that such board of trade is not enforcing or has not enforced its rules of government made a condition of its designation as set forth in section 7 of this title or that such board of trade, or any director, officer, agent, or employee thereof, otherwise is violating or has violated any of the provisions of this chapter or any of the rules, regulations, or orders of the Secretary of Agriculture or the commission thereunder. Such suspension or revocation shall only be after a notice to the officers of the board of trade affected and upon a hearing: Provided, That such suspension or revocation shall be final and conclusive, unless within fifteen days after such suspension or revocation by the commission such board of trade appeals to the court of appeals for the circuit in which it has its principal place of business, by filing with the clerk of such court a written petition praying that the order of the commission be set aside or modified in the manner stated in the petition, together with a bond in such sum as the court may determine, conditioned that such board of trade will pay the costs of the proceedings if the court so directs. The clerk of the court in which such a petition is filed shall immediately cause a copy thereof to be delivered to the Secretary of Agriculture, who shall thereupon notify the other members of the commission and file in the court the record in such proceedings, as provided in section 2112 of Title 28. The testimony and evidence taken or submitted before the commission, duly filed as aforesaid as a part of the record, shall be considered by the court of appeals as the evidence in the case. The proceedings in such cases in the court of appeals shall be made a preferred cause and shall be expedited in every way. Such a court may affirm or set aside the order of the commission or may direct it to modify its order. No such order of the commission shall be modified or set aside by the court of appeals unless it is shown by the board of trade that the order is unsupported by the weight of the evidence or was issued without due notice and a reasonable opportunity having been afforded to such board of trade for a hearing, or infringes the Constitution of the United States, or is beyond the jurisdiction of the commission."
* ↑ Title 7 U.S.C. § 13a states: "If any contract market is not enforcing or has not enforced its rules of government made a condition of its designation as set forth in section 7 of this title, or if any contract market, or any director, officer, agent, or employee of any contract market otherwise is violating or has violated any of the provisions of this chapter or any of the rules, regulations, or orders of the Secretary of Agriculture or the commission thereunder, the commission may, upon notice and hearing and subject to appeal as in other cases provided for in paragraph (a) of section 8 of this title, make and enter an order directing that such contract market, director, officer, agent, or employee shall cease and desist from such violation, and if such contract market, director, officer, agent, or employee thereafter and after the lapse of the period allowed for appeal of such order or after the affirmance of such order, shall fail or refuse to obey or comply with such order, such contract market, director, officer, agent, or employee shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $10,000 or imprisoned for not less than six months nor more than one year, or both. Each day during which such failure or refusal to obey such order continues shall be deemed a separate offense."
* ↑ Title 17 CFR § 0.53 provides: "(a) Application to institute proceedings. Any interested person having any information of any violation of the act, or of any of the orders or regulations promulgated thereunder, by any board of trade or by any director, officer, agent, or employee thereof may file with the Act Administrator [see infra] an application requesting the institution of such proceeding as is authorized under the act. Such application shall be in writing, signed by or on behalf of the applicant, and shall include a short and simple statement of the facts constituting the alleged violation and the name and address of the applicant and the name and address of the person against whom the applicant complains." (The "Act Administrator," who "administers and is responsible for the enforcement of the [Act]," id., § 140.1, is the Administrator of the Commodity Exchange Authority, United States Department of Agriculture, id., § 0.52 (r).) "(b) Status of applicant. The person filing an application as described in paragraph (b) of this section shall have no legal status in the proceeding which may be instituted as a result of the application, except where the applicant may be permitted to intervene therein, in the manner provided in this subpart, or may be called as a witness, and the applicant's identity shall not be divulged by any employee of the Department, except with the applicant's prior consent or upon court order. "(c) Who may institute. If, after investigation [by regional offices of the Commodity Exchange Authorities, id., § 140.1 (d)] of the matters complained of in the application described in paragraph (a) of this section, or after investigation made on its own motion, the Commission has reason to believe that any board of trade or any director, officer, agent, or employee thereof has violated or is violating any of the provisions of the act, or of any of the regulations promulgated thereunder, the Commission will institute an appropriate proceeding: Provided, That in any case, except one of willfulness or one in which the public health, interest or safety otherwise requires, prior to the institution of a proceeding for the suspension or revocation of any designation of a contract market, facts or conditions which may warrant such action shall be called to the attention of the market in writing and such market shall be accorded opportunity to demonstrate or achieve compliance with all lawful requirements. Proceedings will be instituted only upon complaints issued by the Commission and will not be instituted upon pleadings filed by private persons." Should the Commission institute proceedings after investigation, ibid., unless the respondent is allowed by the Commission to consent to an order, id., § 0.54, proceedings are held before a referee from the Department of Agriculture, id., §§ 0.52 (p) and (s) and 0.55 et seq., an oral hearing being granted on request, id., § 0.61. The Commission prepares its order based on consideration of the record of the proceedings, including a report prepared by the referee, id., §§ 0.66, 0.68, and 0.70, oral argument being held before the Commission in certain instances, id., § 0.69.
* ↑ Title 17 CFR § 0.58 states: "At any time after the institution of a proceeding, and before it has been submitted to the Commission for final consideration, the Commission or the referee may, upon petition in writing and for good cause shown, permit any person to intervene therein. The petition shall state with preciseness and particularity: (a) The petitioner's relationship to the matters involved in the proceeding, (b) the nature of the material he intends to present in evidence, (c) the nature of the argument he intends to make, (d) any other reason that he should be allowed to intervene." As indicated in n. 2, supra, while the Commission has been vested with authority to take disciplinary action against a contract market and its officers, agents, and employees, the Secretary has been given such authority against persons other than contract markets, including individuals, associations, partnerships, corporations, and trusts, 7 U.S.C. § 2, and may either exclude them from trading on a contract market, id., § 9, or may issue a cease-and-desist order, id., § 13b. The regulations providing for institution of and intervention in disciplinary proceedings before the Secretary, 17 CFR §§ 0.3 and 0.8, are virtually identical to the regulations for Commission proceedings quoted above and in n. 9, supra.
* ↑ Rules the Court of Appeals found related to "trading requirements" were Rule 307, which provides for the sale of membership, and Rule 322, which concerns qualifications to trade. Rule 307 provides: "Membership in the Exchange is a personal privilege subject to sale and transfer only as authorized herein. When a member or the legal representative of a deceased or incompetent member desires to sell a membership, he shall sign an authorization to transfer in such form as shall be prescribed by the Board. An individual who desires to purchase a membership shall notify the President to such effect and when an agreement with a seller shall have been made shall sign a confirmation of purchase and shall deposit with the President a transfer fee in the amount of $100.00 and also a certified check, payable to the Exchange, for the amount of the agreed purchase price." Rule 322 states: "A member may be qualified to trade on the Spot and To-Arrive Calls provided he has been authorized by a firm or corporation which has been qualified pursuant to Rule 810 to engage in trading on said calls. A member may be qualified to trade on the futures call provided he has been authorized by a firm or corporation which is a Clearing Member."
* ↑ See, e.g., Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213 (1966); United States v. Philadelphia National Bank, 374 U.S. 321 (1963); Silver v. New York Stock Exchange, 373 U.S. 341 (1963); Pan American World Airways v. United States, 371 U.S. 296 (1963); California v. FPC, 369 U.S. 482 (1962); United States v. Radio Corp. of America, 358 U.S. 334 (1959); Far East Conference v. United States, 342 U.S. 570 (1952); Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945); United States v. Borden Co., 308 U.S. 188 (1939); United States Navigation Co. v. Cunard S.S. Co., 284 U.S. 474 (1932); Keogh v. Chicago & N.W. R. Co., 260 U.S. 156 (1922).
* ↑ Thus our judgment is not that Congress intended the Commodity Exchange Act to be the exclusive instrument for the governance of the Exchange and its members. The purpose and structure of the Act and our past cases appear to foreclose any such conclusion. Carnation Co. v. Pacific Westbound Conference, supra; United States v. Philadelphia National Bank, supra; Silver v. New York Stock Exchange, supra; Pan American World Airways v. United States, supra; United States v. Borden Co., supra. Nor do we find that Congress intended the Act to confer general antitrust immunity on the Exchange and its members with respect to that area of conduct within the adjudicative or rule-making authority of the Commission or the Secretary. See United States v. Philadelphia National Bank, 374 U.S., at 350-354; California v. FPC, supra; Maryland & Virginia Milk Producers v. United States, 362 U.S. 458 (1960); United States v. Radio Corp. of America, 358 U.S., at 339-352. The Act contains no categorical exemption of this kind; indeed, it confers no express exemption at all, not even with respect to conduct that is directed or authorized by the Commission or the Secretary. Moreover, the area of administrative authority does not appear to be particularly focused on competitive considerations; there is no express provision in the Act directing administrative officials to consider the policies of the antitrust laws in carrying out their duties and there is no other indication that Congress intended the adjudicative authority given the Commission and the Secretary to be a complete substitute for judicial enforcement of the antitrust laws. Cf. California v. FPC, supra.
* ↑ MR. JUSTICE MARSHALL'S dissent complains that jurisdiction of the Commodity Exchange Commission is not clear, that the Commission need not institute proceedings, that the complainant must intervene to become a party, and that agency remedies are discretionary. But proceeding by complaint and intervention is not an unusual system for invoking administrative action. And surely if administrative proceedings are sought in vain, there would be no further problem for the antitrust court. In any event it should be pointed out that the regulations require investigation of complaints and provide that "the Commission will institute an appropriate proceeding" if investigation reveals reason to believe that the Act is being violated. 17 CFR § 0.53 (c). (Emphasis added.) See n. 9, supra.
* ↑ Likely issues for the factfinder are whether Ricci revoked the transfer authorization before or after he was informed that his membership was transferred; whether the transfer authorization was valid; whether the Trading Company had a lien against Ricci's membership because of its loan to Ricci for the purchase of a membership; whether the Trading Company owed brokerage fees to Ricci; and, if so, whether these brokerage fees could be offset against the debt for the membership purchase.
* ↑ MR. JUSTICE MARSHALL'S dissent also asserts that because Ricci's complaint asserts a conspiracy, the matter at issue lies beyond any possible self-regulatory goals of the Exchange. But this simply ignores and refuses to accept the factfinding function of the Commission. It also fails to recognize that the allegation simply characterizes as a conspiracy what may be an attempt to invoke the membership rules of the Exchange.