## Facts

- trueEX LLC operated a swap execution facility (SEF) for interest-rate swaps; truePTS LLC was formed to develop an independent post-trade processing service.
- MarkitSERV provided electronic post-trade processing and confirmation services in the interest-rate swaps market and maintained a dominant processing network.
- Many SEFs used MarkitSERV’s “drop-copy” workflow, which received trade data from a SEF and routed it to counterparties, clearinghouses, and repositories.
- trueEX used MarkitSERV’s drop-copy services and, in practice, relied on MarkitSERV’s infrastructure to complete post-trade processing for trueEX’s customers.
- trueEX formed truePTS to reduce dependence on MarkitSERV and to compete with MarkitSERV in post-trade processing.
- After learning of the planned competing platform, MarkitSERV notified trueEX that it intended to terminate drop-copy and related services; truePTS was not yet fully operational.
- trueEX and truePTS sued, asserting federal antitrust claims and (by trueEX only) a state-law promissory estoppel claim, and moved for a preliminary injunction to prevent termination during the litigation.

## Issues

1. Whether plaintiffs met the standards for a preliminary injunction by showing irreparable harm, likelihood of success (or serious questions plus a hardships balance in their favor), and that relief would serve the public interest.
2. Whether plaintiffs were likely to succeed on Sherman Act § 2 theories premised on monopolization/attempted monopolization and exclusionary conduct via termination of access to MarkitSERV’s network (a refusal-to-deal theory).
3. Whether trueEX was likely to succeed on promissory estoppel by proving a clear and unambiguous promise of continued service and reasonable reliance.

## Decision

- The court denied the motion for a preliminary injunction.
- Plaintiffs failed to show a likelihood of success (or sufficiently serious questions) on the antitrust claims, including antitrust standing and actionable exclusionary conduct.
- Plaintiffs failed to show a likelihood of success on promissory estoppel because the asserted assurances did not constitute a clear and unambiguous promise.
- Plaintiffs did not establish irreparable harm warranting mandatory injunctive relief, and equitable/public-interest considerations did not favor compelling an ongoing commercial relationship.

## Legal Principles

- A preliminary injunction requires irreparable harm and either likelihood of success on the merits or serious questions plus a decisively favorable balance of hardships, along with consistency with the public interest.
- Private antitrust plaintiffs must show antitrust injury (harm to competition, not merely harm to a competitor) and must be appropriate “efficient enforcers” of the antitrust laws.
- Unilateral refusal-to-deal theories are generally disfavored; a firm typically has no antitrust duty to continue dealing with a rival absent narrow, exceptional circumstances.
- Conduct that disadvantages a particular rival is not enough; § 2 liability focuses on harm to the competitive process (e.g., effects on prices, output, or quality) rather than on a private dispute over access terms.
- Under New York law, promissory estoppel requires a clear and unambiguous promise; indefinite business communications and course-of-dealing typically do not satisfy that requirement.

## Conclusion

The court refused to enjoin MarkitSERV from terminating services because plaintiffs did not demonstrate irreparable harm or a sufficient showing on the merits of their Sherman Act § 2 and promissory estoppel theories, particularly given the narrow scope of refusal-to-deal liability and the absence of a definite promise of continued service.


trueEX LLC v. MarkitSERV Ltd., 266 F. Supp. 3d 705 (S.D.N.Y. 2017)