However, Ayres notes what he sees as a weakness in the U.S. Sherman Antitrust Act, which is that it is only violated if an actual anti-competitive agreement is put in place. That loophole famously allowed American Airlines (AMR) to avoid penalty even after its chief executive was recorded openly proposing to a competitor that they both lower their prices simultaneously. The JPMorgan e-mail does not appear to prove an anti-competitive agreement existed between the two banks, Ayres says.
The Federal Trade Commission has argued it has broader powers under Section Five of the Federal Trade Commission Act, which prohibits "unfair methods of competition," according to William Page, a senior associate dean at University of Florida's law school who has written two books on anti-trust issues involving Microsoft (MSFT).
Page would not say whether he thought the e-mail described illegal activity, or warranted further investigation, saying only that he found it "interesting."
"The fact that you have the heads of these two banks talking directly: whenever you have that kind of direct communication there's going to be some question about what it is they're actually discussing," Page says.In addition to the banks mentioned above, the e-mail describes both bank chiefs as interested in buying Citigroup's (C - Get Report) Banamex unit. Santander confirmed it tried to buy Banamex but was told it was not for sale. Dimon also advises Santander to "take a good look," at Citigroup's U.S. consumer finance business, a business Dimon likes but says "does not fit in any one of JPMorgan's key divisions."