Articles Posted in State-Action Immunity

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Author: Jarod Bona

Maybe everyone really is conspiring against you? If they are competitors—that is, they have a horizontal relationship—they may be committing a per se antitrust violation.

A group boycott occurs when two or more persons or entities conspire to restrict the ability of someone from competing. This is sometimes called a concerted refusal to deal, which unlike a standard refusal to deal requires, not surprisingly, two or more people or entities.

A group boycott can create per se antitrust liability. But the per se rule is applied to group boycotts like it is applied to tying claims, which means only sometimes. By contrast, horizontal price-fixing, market allocation, and bid-rigging claims are almost always per se antitrust violations.

We receive many calls and messages about potential group boycott actions. This is probably the most frustrating type of antitrust conduct to experience as a victim. Companies often feel blocked from competing in their market. They might be the victim of marketplace bullying.

You can also read our Bona Law article on five questions you should ask about possible group boycotts.

Many antitrust violations, like price-fixing, tend to hurt a lot of people a little bit. A price-fixing scheme may increase prices ten percent, for example. Price-fixing victims feel the pain, but it is diffused. Typically either the government or plaintiff class-action attorneys have the biggest incentive to pursue these claims.

Group boycott activity, however, is usually directed toward one or very few victims. The harm is not diffused; it is concentrated. And it is often against a competitor that is just trying to establish itself in the market. The victim is often a company that seeks to disrupt the market, creating a threat to the established players.

The defendants may act like bullies to try to keep that upstart competitor from gaining traction in the market. Sometimes trade associations lead the anticompetitive charge.

Group boycott activity often occurs when someone new enters a market with a different or better idea or way of doing business. The current competitors—who like things just the way they are—band together to use their joint power to keep the enterprising competitor from succeeding, i.e. stealing their customers.

Sometimes group boycott claims are further complicated when the established competitors—the bullies—use their relationships with government power to further suppress competition. Indeed, sometimes the competitors actually exercise governmental power.

This is what occurred in the NC Dental v. FTC case (discussed here, and here; our amicus brief is here): A group of dentists on the North Carolina State Board of Dental Examiners engaged in joint conduct, using their government power, to thwart teeth-whitening competition from non-dentists.

This, in my opinion, is the most disgusting of antitrust violations: a group of bullies engaging government power to knock out innovation and competition. And I am very happy to see the Federal Trade Commission take a pro-active role against such anticompetitive thuggery.

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Author: Jarod Bona

The United States Court of Appeals for the Fifth Circuit agreed on July 17, 2018 to stay the FTC’s Action against the Louisiana Real Estate Appraisers Board.

The Fifth Circuit’s one-line decision rejects the FTC’s opposition to the Board’s requested stay and allows immediate appellate review of the FTC’s significant state-action-immunity rejection.

You might recall that we wrote about the FTC’s state-action-immunity decision the day it occurred, concluding that then Commissioner Ohlhuasen’s opinion was well-reasoned and thorough.

You can review the documents in the FTC administrative action against the appraisal board here.

This FTC administrative action arises out of allegations that a Louisiana board of appraisers required appraisal management companies to pay appraisers what it described as a “customary and reasonable” fee for real estate appraisal services. The FTC argues that this is illegal price-fixing, which, of course, violates Section 5 of the FTC Act.

What is particularly interesting about this case is that it addresses one of the most significant applications of the active supervision prong of the state-action-immunity doctrine since the US Supreme Court decided NC Dental.

You might recall that, in most cases, entities that want to claim state-action immunity must satisfy both prongs of the Midcal test: (1) the challenged restraint must be clearly articulated and affirmatively expressed as state policy; and (2) the policy must be actively supervised by the state itself.

You can read our analysis of active supervision and related FTC guidance on the requirement here.

As we described in our prior article, Commissioner Ohlhausen effectively addressed important factual and legal issues that make up the active-supervision standard, offering useful guidance to boards and those that challenge them under the antitrust laws.

For example, the FTC applied three elements that it held—in this case—form part of active supervision: (1) the development of an adequate factual record; (2) a written decision on the merits; and (3) a specific assessment of how the private action compares with the substantive standard from the legislature.

While the Fifth Circuit’s stay decision is not good news for the FTC’s current action, it may be good news for state boards and others that want guidance on the active-supervision requirements of state-action immunity.

The Supreme Court’s NC Dental decision offered some parameters of what doesn’t constitute active supervision, mostly from prior cases. But at this point, the law is light on the specifics. A federal appellate decision that fully engages on these issues will help state boards, victims of state boards, district courts, and, in fact, the Federal Trade Commission.

Besides the substantive active supervision issue, this case presents the drama of the Louisiana governor trying to get around the state-supervision deficiencies through executive order in response to the FTC’s initial antitrust complaint. The board argued that the executive order made the FTC’s case moot. The FTC, of course, rejected that argument.

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Real-Estate-Appraisers-Antitrust-FTC-300x188Author: Jarod Bona

On April 10, 2018—the eve of my panel on state action immunity issues at the ABA Antitrust Spring Meeting in DC, the FTC granted, in essence, partial summary judgment against the Louisiana Real Estate Appraisers Board on state action immunity. You can read the FTC decision—hot off the press—right here.

I won’t go into a lot of detail here as you can read the decision, but here is short summary:

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Author: Aaron Gott

Last month, the U.S. Supreme Court granted a writ of certiorari to decide a circuit split on an important procedural question concerning the state-action immunity to the federal antitrust laws: whether a decision denying the state-action immunity is immediately appealable or must await a final decision just like most issues raised on a motion to dismiss.

The case, SolarCity Corporation v. Salt River Project Agricultural Improvement and Power District, is about a power company that changed its rate structure to make it less appealing for consumers to switch to solar power. Power companies are typically quasi-natural monopolies because of the way power is delivered—through a massive infrastructure of physical lines.

Update: The parties reached a settlement and filed a stipulated dismissal dated March 20, 2018. So the US Supreme Court will not hear this case.

But new technology is changing that: people can generate electricity straight from the sun by installing panels on their roofs, and soon it will be more cost effective to install batteries to hold that power for when it is needed than to continue paying the power company. In places like Southern California, where the price of peak electricity is more than four times the national average, solar power is a no-brainer.

It comes as no surprise that some power companies are using their incumbency to slow the disruption of this innovative technology. SolarCity (now Tesla, Inc.) sued an Arizona power district for attempting to maintain its monopoly over the supply of electrical power in its territory, alleging that the power district created new fees that penalize solar customers, which ultimately had its intended effect: solar retailers received 96% fewer applications for new solar systems among customers in the power district after the new rates took effect.

The power district moved to dismiss, arguing that it is immune from the federal antitrust laws under the state-action immunity. The district court denied the motion because the power district had not met its burden of showing that it acted pursuant to a clearly articulated state policy to displace competition. The power district sought an order certifying the denial for interlocutory appeal, which was also denied. Nevertheless, the power district immediately appealed to the Ninth Circuit, arguing that a denial of the state-action immunity should be immediately appealable under the collateral order doctrine.

Before we dive into the Ninth Circuit decision, let’s discuss some of these terms.

The Collateral Order Doctrine

The collateral order doctrine is an exception to the general rule that the federal courts of appeal have jurisdiction to hear only appeals of “final orders” from the district courts.  The exception is narrow and must be strictly applied.

A collateral order is appealable immediately if it meets three requirements: first, the order being appealed must be conclusive. Second, it must address a question that is separate from the merits of the case. Third, it must raise “some particular value of a high order” and evade effective review if not considered immediately.

With these requirements, there are only a few categories of decisions that meet the collateral order doctrine, and they are all “immunities”: Eleventh Amendment immunity, absolute immunity, qualified immunity, foreign and tribal sovereign immunity. Given this, it might seem that the state-action “immunity” also fits. But it isn’t quite that simple because the state-action immunity isn’t actually an immunity, but a judicially recognized exemption.

What Is An Immunity?

Read broadly, an immunity could mean many different things. It could mean immunity from suit, immunity from liability, or even just immunity from money damages.

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For the third time in recent years, the US Supreme Court decided to review an antitrust case involving state-action immunity.

Unlike the first two cases, however, the primary issue in this case is procedural: The petition requesting review fairly described the issue as “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.”

The case at issue is a Ninth Circuit case called SolarCity Corporation v. Salt River Project Agricultural Improvement and Power District. SolarCity, of course, is now a unit of Elon Musk’s Tesla.

You can read our more complete analysis of the upcoming SolarCity case here.

Update: The parties reached a settlement and jointly dismissed the case from the US Supreme Court.

The substantive case underneath the procedural issue involves a monopolization lawsuit by SolarCity against a public entity power company in Arizona, which is the only supplier in that area of traditional electrical power.

Here is what they did: SolarCity, like other solar-energy-panel companies, was having success in selling and leasing rooftop solar panels to customers, especially in sunshine places like Arizona (and Southern California, of course). Instead of viewing the move toward solar power as good for the environment and peoples’ pocketbooks, the power company—a public entity—viewed it as a threat. And, like many government entities that view private enterprise as a threat to their budgets and influence, the power district changed the rules.

That is, the power company changed the pricing structure so customers that acquire power from their own system—a solar-panel system, for example—must pay a prohibitively large penalty. The government entity’s rule change had its intended effect: SolarCity received ninety-six percent fewer applications for new solar-panel systems in that territory.

This is, of course, one of the grossest forms of government abuse and a disgrace to competition. It is also one of the reasons why Luke Wake of the NFIB Small Business Legal Center and I argued both as an amicus in Phoebe Putney and in a law review article that the Supreme Court should adopt a market-participant exception to state-action immunity. If a government entity is a commercial participant in a market, it shouldn’t be immunized from cheating in that market.

Bona Law currently has another case pending in the Ninth Circuit in which government entities that compete in the market violated antitrust laws and are using the shield of state-action immunity to try to get away with it.

The Collateral Order Doctrine

In the SolarCity case, the trial court rejected state-action immunity at the motion-to-dismiss stage. Typically, a defendant that loses a motion to dismiss cannot appeal the issues until later in the case, sometimes after trial. The plaintiff gets to take a shot at proving its case.

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Author: Aaron Gott

Senators Mike Lee, Ted Cruz, and Benjamin Sasse recently proposed a bill to enact the Restoring Board Immunity Act of 2017, which would give state licensing boards antitrust immunity that they may not otherwise be entitled to under the state-action immunity doctrine. The bill provides this immunity if the states fulfill some conditions: they must make efforts to reform their occupational licensing schemes and either provide active supervision of boards by creating an office to oversee them or provide for a specific form of judicial review of licensing board actions.

While the bill seeks to make some promising advancements to curtail overbearing state occupational regulation, it misses the mark in several ways.

As a Bona Law attorney, I regularly help clients suffering the wrath of professional licensing boards. It is very rewarding work, but it is also difficult work because the entire system—from state executive branches to federal courts—overwhelmingly defers to these licensing boards. The boards are confident in their ability to do whatever they want because they’ve enjoyed extreme deference in constitutional cases since the progressive era.

Our most effective tool is the threat of antitrust litigation—a tool that has only recently been used. First I’ll explain how all of this works so that you can better understand why this bill is a bad idea.

How Licensing Boards Work

Most licensing boards are created by some enabling statute that was pushed through the state legislature after a bunch of competitors in the same industry got together and formed a powerful lobby. Nine times out of ten, a professional licensing board justifies its existence and its conduct with vague and unsupported claims that public welfare is at stake. The enabling legislation often provides the governor the authority to appoint members of the profession, and perhaps one or two “public” members (persons who are not part of the profession), to serve on the licensing board.

Invariably, the board members who also compete in the market eventually use their power on the board to benefit their own pecuniary interests:

Licensing Requirements. . Organizations like the Institute for Justice have analyzed state-by-state data and published significant literature about occupational overregulation. The bill appears most focused on licensing requirements. Antitrust litigation typically does not focus on the licensing requirements category of restraints because they are easy to pretextually justify, because the lobbying effort is protected by the Noerr-Pennington doctrine, and because they primarily affect new entrants (who are unlikely to organize a collective resistance, let alone the resources to finance antitrust litigation).

This raises an important question: if most antitrust litigation against boards does not relate to the occupational licensing reforms sought by the bill, why are we considering a broad antitrust exemption as the carrot for states to implement the reforms?

Expanding the Scope of Practice. Where boards prevent competitors who are not licensees within their jurisdiction from competing with them. A seminal example is what occurred in North Carolina Board of Dental Examiners v. FTC: the North Carolina dental board sent cease-and-desist letters to nondentist teeth whiteners asserting that teeth whitening was the practice of dentistry. Teeth whitening is not mentioned in the North Carolina statutes governing dentistry, but the board asserted it anyway because the dental board members and their professional trade group friends were losing profits to disruptive nondentist competitors who offered lower prices to consumers.

Similarly, the California Veterinary Medicine Board recently sent cease-and-desist letters to animal chiropractors, claiming that performing chiropractic adjustments on animals is the practice of veterinary medicine (even though performing human chiropractic adjustments is not the practice of human medicine).

Setting the Rules of Competition. Where boards prevent competitors who are licensees within their jurisdiction from competing in ways they don’t like. For example, some state funeral director boards have imposed or considered imposing substantial infrastructural requirements on their licensees (such as having an embalming room) with the ultimate goal of restricting the geographic scope of competition.

Side note: state funeral director boards have been among the worst culprits of blatant anticompetitive activity, even going so far as enacting rules to prevent monks who handcraft caskets from competing in the lucrative market for casket sales.

As you can see, boards have substantial power and states don’t seem to care that they regularly abuse it. So at first glance, a bill that incentivizes states to reassess their occupational licensing schemes with a critical eye is probably a good thing, right? If that were what it did, and it didn’t attempt to foreclose otherwise legitimate antitrust claims through the state action doctrine, then it wouldn’t be so objectionable.

The Bill

You can read the text of the bill here, but it works like this: all licensing boards and their members are not subject to the Sherman Act if the following conditions are met:

  1. The actions of the board/member are authorized by a nonfrivolous interpretation of the occupational licensing laws of the state.
  2. The state adopts a policy of using less restrictive alternatives to occupational licensing;
  3. The state either:
    1. Enacts legislation providing for active supervision of the actions of an occupational licensing board, which requires creating a central office to oversee all licensing boards; or
    2. Enacts legislation providing for judicial review of occupational licensing laws.

The bill has a savings clause that states the immunity only applies to “personal qualifications required to engage in or practice a lawful occupation.” As you will see below, this clause could be very important, depending on how courts would construe it.

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The doctrine of federal antitrust law includes several immunities and exemptions—entire areas that are off limits to certain antitrust actions. This can be confusing, especially because these “exceptions” arise, grow, and shrink over time, at the seeming whim of federal courts.

As a matter of interpretation, the Supreme Court demands that courts view such exemptions and immunities narrowly, but they are still an important part of the antitrust landscape. This includes, prominently, the Filed Rate Doctrine, which is the topic of this article.

Here at The Antitrust Attorney Blog, we write about these antitrust exceptions periodically. In particular, we spend a lot of time on state-action immunity, but have also published articles on, for example, the baseball antitrust exemption, and the business of insurance exception (which, unlike many others, arose from statute: The McCarran-Ferguson Act).

What is the Filed Rate Doctrine?

The filed rate doctrine is simply a judicially created exception to a civil antitrust action for damages in which plaintiffs challenge the validity of rates or tariff terms that have been filed with and approved by a federal regulatory agency.

But what does that mean?

In some industries, notably insurance, energy, and shipping (or other common carriers), the participants must file the rates that they offer to all or most customers with a government agency. This regulatory agency must then, in some manner, approve those rates. This approach is an exception to a typical market and was more common in certain industries pre-deregulation.

The idea of filing these rates is that the benevolent and all-knowing government agency, rather than the market, will best look after customers. It arises from the same seed as socialism and was particularly popular in the early to mid-20th century when the view that educated people could perform better than markets was in vogue.

Anyway, these “filed rates” are still with us and are a defense, through the filed rate doctrine, to certain antitrust actions.

The filed rate doctrine itself arose in a 1922 US Supreme Court case called Keogh v. Chicago & Northwest Railway Co., 260 U.S. 156 (1922). In that case, the plaintiffs sought antitrust damages by arguing that defendants violated the Sherman Act and the rates charged by certain common-carrier shippers were higher than they would have been in a competitive market.

The defendants, however, had filed these rates with the Interstate Commerce Commission (ICC), a federal agency that had approved them. The Supreme Court responded by precluding plaintiffs’ antitrust lawsuit on that basis, as the rates, once filed, “cannot be varied or enlarged by either contract or tort of the carrier.” It is the legal rate.

The Supreme Court has since reaffirmed this holding, most prominently in a case called Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409 in 1986, which you can read at the link if you want to dig deeper.

When Does the Filed Rate Doctrine Preclude Antitrust Liability?

The filed rate doctrine is a defense to an antitrust lawsuit, premised on damages, so long as the claim requires the Court to examine or second guess the rates filed with a federal agency.

So if you are a plaintiff that wants to bring an antitrust action against a defendant that filed rates, you could (1) seek certain types of injunctive relief; and (2) develop your action in a way that doesn’t require the Court to determine liability or calculate damages by comparing current filed rates to a hypothetical rate in a but-for world. This can get complicated, so if you are not an antitrust attorney, you might want to find one.

If you are or represent a defendant that has been sued under the antitrust laws and the defendant company files rates with some agency, you should also seek antitrust-specific guidance. You might have a strong defense.

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If you have sold or purchased a home recently, you might be under the impression that real estate commissions—the price to engage a real estate broker—are fixed or otherwise set by law in different geographic markets. They aren’t—to do so amounts to price-fixing, which is a per se violation of the antitrust laws.

Like any other competitor—professional or not—real estate brokers and agents must compete for customer business on price, quality, and everything else. If competing professionals were to join together to fix commissions at a set price, they would violate the antitrust laws. And since it would be a per se violation, there are potential criminal penalties.

In fact, the U.S. Department of Justice, Antitrust Division, is engaged in prosecuting some other real-estate participants for per se antitrust violations—bid rigging: Several Northern California real-estate investors have pled guilty for bid rigging public real estate foreclosure auctions. Similar bid rigging of foreclosure auctions apparently occurred in Georgia, as well. We wrote about these bid rigging investigations long ago when DOJ’s antitrust activity was in its early stages.

But let’s return to real estate brokers and commissions: It is true that in most geographic regions, you see commissions at around the same level, no matter who you hire as a real estate agent. That will sometimes happen in a market; there is a rate that is around the market rate and most will price around that rate.  We wrote a prior article about this situation, where real estate commissions ended up at the same level, but not due to any agreement. This was not an antitrust violation.

For some reason, however, there is an impression with real estate commissions that there is a “standard” or “legal” rate that real estate agents must price. If you are a consumer in this industry, it is important that you know that this is absolutely incorrect. If your real estate broker tells you otherwise, have them read one of our most popular articles: Five Antitrust Concerns for Real Estate Professionals.

Then, go ahead and negotiate. That is your right. You don’t have a right to win the negotiation, but real estate agents don’t have a right to agree among each other on prices either.

If you are a competitor for real estate services, it is particularly important that you understand that you can’t fix prices with other agents. If you do, you might find yourself on the wrong side of an antitrust lawsuit—possibly even brought by Bona Law—as we receive a lot of calls and emails about these issues. Or, worse, you could receive a call from a Department of Justice lawyer that opened an investigation into you or your company.

My interest in this issue goes beyond my role running a boutique antitrust law firm: I am also a long time real estate investor and I have a California real estate license. To capitalize on that background, we recently started a new blog directed at real estate investors, called Titles & Deeds. If you want to learn more, you can read about our real estate blog here.

This, of course, leads us to Kansas. I bet you didn’t see that coming. Let me explain.

Are the Kansas Real Estate Commission and its Members About to Violate the Antitrust Laws?

On June 16, 2017, Andrew Finch, Acting Assistant Attorney General for DOJ, wrote a letter to the Kansas Real Estate Commission expressing concern about a regulation the Commission is considering that would make it easier to fix prices by forbidding real estate brokers from competing on price by offering gift cards or similar items.

Apparently, according to the DOJ law, Kansas state law forbids real estate brokers from offering rebates, but doesn’t define the term “rebates.” The Kansas state ban, of course, is highly anticompetitive. It directly restricts price competition and harms consumers in Kansas. The Kansas government has unfortunately chosen to protect profits in the real estate profession over the well-being of its citizens.

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Update: As you may have heard, the Senate confirmed Judge Neil Gorsuch to the U.S. Supreme Court. Read below for my thoughts on the confirmation process and Justice Gorsuch and antitrust.

We have entered a Supreme-Court-Justice-Nomination season. These are always interesting times for lawyers, politicians, and real people.

There are only nine Justices on the Supreme Court, so whenever there is an opening, it is a big deal. Appointments are for life, or until a Justice wants to leave, for whatever reason (or impeachment, but we haven’t had to worry about that lately). So the nomination seasons are whenever they are.

For lawyers, it is the rare time when the rest of the country cares about what they care about. Thus, news talk shows and articles are full of attorney quotes, ideas, and predictions about, first, who they think the nominee will be; and second, after the name is known, whether that person is qualified.

A Supreme Court Justice, as a job, is not an easy one. Sure, it comes with some perks like lifetime appointment, cool robes, and the right to interrupt attorneys whenever you want. But it is a lot of pressure because you are making decisions in a wide variety of legal subjects, covering constitutional, statutory, and even federal common law, each of which may create upheavals for huge groups of people.

As a Justice, you can’t afford the time to become and stay an expert in every area of law, but you (and your Justice colleagues) are making decisions that set the parameters for all legal fields, even over experts in those fields. Some may say that this is a feature not a bug. But, from the perspective of the individual Justice, it creates an enormous responsibility to think through everything you do. You can’t just take an opinion off.

Because of the impact and responsibility of a Supreme Court Justice, this isn’t a job for anyone. You have to love the law and want to contribute positively to it—in a way that might even seem a little obsessive.

So let’s talk about qualifications: At least since I’ve been following it, it is unusual to see a nominee for the US Supreme Court that isn’t qualified to work on the Court. That is, the qualifications of the men and women that Presidents of both parties have nominated over the last couple of decades have been impressive and adequate for the extremely high standards of the Court. That includes DC Circuit Judge Merrick Garland.

But, unfortunately, the word “qualifications” has become a word that every side, at one time or another, has lifted to mean “I think will do what I want on the rare controversial case that could likely go either way on the law,” or some other interest-focused meaning.

That is because most people, especially people on television, don’t like to just say, honestly, that they support or oppose a particular nominee for pure reasons of self or philosophical interest. Instead, they filter out their own biases by using the word “qualified” or “not-qualified,” or “extremist” or some other mismatched word. The reasons for this probably range from cognitive dissonance to political marketing.

President Donald Trump Nominates Judge Neil Gorsuch to the US Supreme Court

Thanks for sticking around through that long-winded introduction. I added the context I wanted to add, so I can now speak (well, write) more transparently.

Judge Gorsuch is a federal appellate judge on the Tenth Circuit Court of Appeals (which hears appeals from district courts in Colorado, Kansas, Oklahoma, New Mexico, Utah, and Wyoming). He has a BA from Columbia, graduated from Harvard Law in 1991 (exactly one decade before I did), and has a Doctor of Philosophy Degree in Law from Oxford. He clerked on the DC Circuit with Judge David B. Sentelle, then clerked on the United States Supreme Court with both Justices Byron White and Anthony Kennedy. He later worked with the Department of Justice and for many years at a strong law firm.

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FTC State Action ImmunityIn early 2015, the U.S. Supreme Court held in North Carolina State Board of Dental Examiners v. FTC that the “active state supervision” prong of the state-action immunity from antitrust liability test applied to state licensing boards controlled by market participants. You can read my analysis of the decision here. And you can read the amicus brief that Bona Law filed in the case here.

(Besides the “active state supervision” requirement, state-action-immunity applicants must also demonstrate that the challenged restraint was clearly articulated and affirmatively expressed as state policy by a state sovereign, like a state legislature. The Supreme Court recently addressed this requirement in FTC v. Phoebe Putney Health System, Inc. I filed an amicus brief in this case, which you can review here.)

Update: The FTC applied its Active State Supervision criteria in an enforcement action against the Louisiana Real Estate Appraisers Board.

The Basics of Antitrust Liability and State-Action Immunity for State Regulatory Boards

I have written quite a bit about state action immunity and the NC Dental case, so I won’t give a lot of background here. You can read my prior articles.

But here are the basics: Not surprisingly, state and local governments often engage in anticompetitive behavior. Sometimes this includes conduct that the federal antitrust laws prohibit.

But, owing to federalism and the fact that governments get away with things they shouldn’t, sometimes state and federal governments have a get-out-of-antitrust-liability card called “state-action immunity.” Like all antitrust exemptions, Courts interpret the scope of state-action immunity narrowly.

In most situations, a state or local government seeking state-action immunity must demonstrate that (1) the state sovereign—usually the legislature or state supreme court acting legislatively—clearly articulated and affirmatively expressed the challenged restraint as state policy (See Phoebe Putney); and (2) that the state actively supervises the anticompetitive policy.

Before the US Supreme Court decided the NC Dental case, it was an open question whether state licensing or regulatory boards were required to show both prongs of what is called the Midcal test, or just the first prong. That is, it wasn’t a given that these state boards had to show active supervision. I addressed that very issue in a law review article, which you can read here. But apparently my article wasn’t enough to end discussion on the issue, so the US Supreme Court went ahead and addressed it in the NC Dental v. FTC case.

The Supreme Court in NC Dental went on to hold that a state board on which a controlling number of decision-makers are market participants in the regulated occupation must satisfy the active supervision requirement to invoke state-action antitrust immunity.

(As an aside, certain municipalities do not need to show active state supervision, but I suspect that courts will continue to narrow this exception. Luke Wake and I argued in another law review article that whenever the government entity becomes a market-participant, it should lose its state-action immunity entirely. I mention this here because it is often a local government entity that competes directly in the market and tries to invoke state-action immunity.).

So we now know that anticompetitive conduct by state regulatory boards are subject to antitrust scrutiny unless they can show both prongs of the Midcal test, including active state supervision. But what is active state supervision?

What is Active State Supervision for State-Action Immunity from Antitrust?

Active Supervision is something that the US Supreme Court has on occasion addressed, but there isn’t a clear standard. It simply hasn’t come up enough to create a dense body of law. So the guidance is slim.

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