Securities Activities of Banks in the GLB Era - Cleary Gottlieb Steen ...

standard of bank “coercion” required for a violation of the
Anti-tying Statute (the “Proposed Coercion Interpretation”).
(i) The rationale for the Proposed Large Customer Safe-
Harbor Exemption is based on the notion that large and
sophisticated customers are unlikely to be forced or
coerced by a bank to take unwanted products or
services. Based on that premise, the 2004 Bank
Submission contends that tying/reciprocal dealing
arrangements between a bank and such
large/sophisticated customers should not raise any of
the anti-competitive concerns that the Anti-tying
Statute was intended to prevent.
It is not expected, however, that the Board will act
favorably on the proposed Exemption in the near
future (it at all).
(ii) The Proposed Coercion Interpretation articulates a
“coercion analysis” to be applied as guidelines for
identifying customers that cannot be coerced by banks
into accepting unwanted products/services.
(A) The 2004 Bank Submission recommends that
the Board clarify that the “coercion analysis”
(set out in the Proposed Coercion
Interpretation) and the “meaningful option”
analysis (set out in the Proposed Anti-tying
Interpretation and described in Part I.C.1.b
below) for mixed-product arrangements be
applied as two separate tests under the Antitying
Statute (i.e., in the context of
circumstances where the Proposed Large
Customer Safe-Harbor Exemption, or any other
exemption from the Statute, is not available).
(B) Certain key principles of the “coercion
analysis” articulated in the Proposed Coercion
Interpretation include the following:
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