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CHICAGO � While the Chicago Board of Trade and the Chicago Mercantile Exchange are trying to consummate their merger and shoo away competing bids, they’re grappling with a European rival nipping at their heels in federal court. The European exchange, Eurex A.G., sued the Chicago institutions through its U.S. affiliates in October 2003 on antitrust claims and is now demanding documents in discovery that the Chicago exchanges have filed with the U.S. Justice Department as part of their proposed merger. US Futures Exchange v. Board of Trade of the City of Chicago, No. 04-6756 (N.D. Ill.). Eurex argues that the so-called Hart-Scott-Rodino documents may shed light on the anti-competitive practices that it alleges occurred when it tried to enter the markets for U.S. Treasury futures and options on U.S. Treasury futures. For its part, the Chicago Board of Trade (CBOT) and Mercantile Exchange are seeking partial summary judgment, filing many supporting documents under seal in the U.S. District Court for the Northern District of Illinois in an attempt to get rid of at least the predatory pricing allegations. Nine firms involved At a hearing this week, U.S. District Judge James Zagel didn’t express interest in ruling on that issue without some progress in discovery, and called for a status hearing on June 1. “It’s one competitor making life miserable for another competitor,” said David Marx, an antitrust attorney in the Chicago office of McDermott, Will & Emery who isn’t involved in the case. “They’re shaking the tree to see if they might get something out of those historic documents that might be helpful to them.” CBOT, Chicago Mercantile Exchange and Eurex each declined to comment. The lawsuit has pulled nine firms into the case over the years and currently includes Morgan, Lewis & Bockius; Shearman & Sterling of New York; and Anderson Kill & Olick of New York representing Eurex; Bell, Boyd & Lloyd and Kevin M. Forde Ltd., both of Chicago, representing CBOT; and New York’s Skadden, Arps, Slate, Meagher & Flom and Washington’s Kellogg, Huber, Hansen, Todd, Evans & Figel representing the Chicago Mercantile Exchange. Attorneys for all three legal teams declined to comment. Eurex’s attempt to enter the U.S. Treasury markets failed in 2004, and last year it sold a 70% stake in its U.S. Futures Exchange to Man Group PLC of London, though Eurex retained the litigation in Chicago under the agreement. Eurex, which brought the case through its U.S. Futures Exchange and U.S. Exchange Holdings affiliates, alleged that CBOT conspired with the Chicago Mercantile Exchange in violation of the Sherman Act to monopolize the U.S. Treasury markets and claimed that the exchanges created “unfounded fears” in Congress and the Commodity Futures Trading Commission about its plan. As a result, Eurex lost business and was hampered in entering the markets, it said. Zagel in 2005 denied a motion to dismiss the case after it was transferred from the U.S. District Court for the District of Columbia. The case is likely to go to trial as opposed to settling because Eurex is looking for a structural change in the markets, said antitrust attorney Nathan Eimer at Eimer Stahl Klevorn & Solberg in Chicago. “It’s hard to see how Eurex would be happy with a settlement,” said Eimer, who is not involved in the case. “It’s not a matter of dollars,” Eimer said. The summary judgment decision will be an important test of the case, Eimer said. The defendants are trying to chip away at the case, and this is a way to narrow it and then later win on the narrower case, he said. There was little activity in the case until Eurex earlier this year stoked the battle by requesting the Hart-Scott-Rodino documents several months after the exchanges announced their merger last October. These are documents the Justice Department requires before approving a merger. Then in March, the Intercontinental Exchange made a $9.9 billion competing bid to buy CBOT. Zagel during the hearing agreed with Morgan Lewis attorney John Shenefield, who is representing Eurex, that it’s relevant to the case to know when the Justice Department will make a decision on the merger proposal. Attorneys for the exchanges told Zagel that they couldn’t say when the regulators might be finished with the review.

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