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Antitrust Report

M&A Antitrust Enforcement in FY 2010: Are the Obama Officials Promoting aNew or a Souped Up Model of Enforcement?

By Ilene Knable Gotts

A Report on Non-Reportable TransactionsBy Ronan P. Harty and Edward N. Moss

So You Still Think You’re Safe Under the Antitrust Laws? Another WordOf Advice To Those Who Would Ignore The States

By Robert M. Langer, Erika L. Amarante & Erik H. Zwicker

Ex Ante Licensing Negotiations In Standard Setting And The Rule Of ReasonBy James F. Rill and Christopher J. MacAvoy

bjacobson

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Reproduced by Wiggin and Dana LLP with permission. Copyright 2010 Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.

Board of EditorsRachel S. Brass, Editor-in-Chief Julian O. von Kalinowski, General Editor EmeritusGibson, Dunn & Crutcher LLP Gibson, Dunn & Crutcher LLP, RetiredSan Francisco, California

Cynthia E. Richman, Associate Editor Peter Sullivan, General Editor 1989–2001Gibson, Dunn & Crutcher LLP Gibson, Dunn & Crutcher LLPWashington, D.C. Los Angeles, California

New York, New York

Rebecca Justice Lazarus, Associate Editor D. Jarrett Arp, Editor in Chief 2002-2010Gibson, Dunn & Crutcher LLP Gibson, Dunn & Crutcher LLPSan Francisco, California Washington, D.C.

David BaltoWashington, D.C.

Maxwell M. BlecherBlecher & CollinsLos Angeles, California

Robert E. BlochMayer, Brown, Rowe & MawWashington, D.C.

John F. CliffordMcMillan BinchToronto, Canada

Robert E. CooperGibson, Dunn & Crutcher LLPLos Angeles, California

Michael L. DengerGibson, Dunn & Crutcher LLPWashington, D.C.

Eleanor M. FoxNew York UniversitySchool of LawNew York, New York

Ilene Knable GottsWachtell, Lipton, Rosen & KatzNew York, New York

Ronan P. HartyDavis Polk & WardwellNew York, New York

William J. KolaskyWilmer Cutler PickeringHale & Dorr LLPWashington, D.C.

Robert M. LangerWiggin & Dana LLPHartford, Connecticut

Marc D. MachlinPepper Hamilton LLPWashington, D.C.

Maureen McGuirlFensterstock & Partners, LLPNew York, New York

Bernard A. Nigro, Jr.Willkie Farr & Gallagher LLPWashington, D.C.

Janusz Ordover, Ph.D.New York UniversityDepartment of EconomicsNew York, New York

Richard Rapp, Ph.D.National EconomicResearch Associates, Inc.White Plains, New York

Michael ReynoldsAllen & OveryBrussels, Belgium

James F. RillHowrey LLPWashington, D.C.

J. William Rowley QCMcMillan BinchToronto, Canada

Robert A. SkitolDrinker Biddle & Reath LLPWashington, D.C.

Laurence T. SorkinCahill Gordon & Reindel LLPNew York, New York

Peter SullivanGibson, Dunn & Crutcher LLPLos Angeles, CaliforniaNew York, New York

Christof R. A. SwaakStibbeAmsterdam, Netherlands

Daniel G. SwansonGibson, Dunn & Crutcher LLPLos Angeles, California

Copyright � 2010 by Matthew Bender & Company, Inc., a member of the LexisNexis Group. All rights reserved.LexisNexis and the Knowledge Burst logo are trademarks of Reed Elsevier Properties Inc., used under license. MatthewBender is a registered trademark of Matthew Bender Properties Inc.ANTITRUST REPORT (USPS 004-149) (ISBN 978-0-8205-2986-8) is published quarterly for $662 per year and as part of thesubscription to Antitrust Laws and Trade Regulation ($3229) by Matthew Bender & Co., Inc., 1275 Broadway, Albany,N.Y. 12204-2694. Periodical Postage is paid at Albany, N.Y. and at additional mailing offices. Postmaster: Send addresschanges to Antitrust Report, 136 Carlin Rd., Conklin, N.Y. 13748-1531.

ISSUE 4, 2010

ANTITRUST REPORT

CONTENTS

M&A Antitrust Enforcement in FY 2010: Are theObama Officials Promoting a New or a Souped Up Modelof Enforcement? 3

By Ilene Knable Gotts

A Report on Non-Reportable Transactions 29By Ronan P. Harty and Edward N. Moss

So You Still Think You’re Safe Under the Antitrust Laws?Another Word Of Advice To Those Who Would IgnoreThe States 52

By Robert M. Langer, Erika L. Amarante & Erik H. Zwicker

Ex Ante Licensing Negotiations In StandardSetting And The Rule Of Reason 82

By James F. Rill and Christopher J. MacAvoy

LEADING CASES

By Elsa Sependa and Alastair MacIver

Limited Scope of European Union Legal PrivilegeConfirmed––In-house Counsel Excluded 93

Ninth Circuit Strikes Profit Sharing Agreement in Connection withMulti-Employer Collective Bargaining in State of California v.Safeway, Inc 97

Third Circuit Largely Rejects Claims of Purchase Allocation inInsurance Industry in In re Insurance Brokerage AntitrustLitigation 101

So You Still Think You’re Safe Under the Antitrust Laws? AnotherWord Of Advice To Those Who Would Ignore The States

By Robert M. Langer, Erika L. Amarante & Erik H. Zwicker*

Eight years ago, in the fall of 2002, we authoredan article in the pages of the Antitrust Report thatwarned of the dangers of assuming that stateantitrust law would always be the same as itsfederal counterpart.1 That warning is evenmore salient today than when originallywritten. The United States Supreme Court’s2007 decision in Leegin Creative Leather Products,Inc. v. PSKS, Inc.,2 holding that minimum resaleprice maintenance is no longer per se illegalunder Section 1 of the Sherman Act and shouldinstead be subject to the rule of reason, created aflood of debate (and, in some states, legislativeaction and litigation) over whether state antitrustlaw would follow the new federal standard. Inthe wake of Leegin, it is more important than everfor antitrust practitioners to stay apprised ofdevelopments in state antitrust law.

The differences between state and federal anti-trust law are not, by any stretch, limited to resaleprice maintenance. Indeed, the 2002 Article high-lighted three additional areas, including the stateresponse to the indirect purchaser doctrine ofIllinois Brick Co. v. Illinois,3 state court applicationof the United States Supreme Court’s decision inCopperweld Corp. v. Independence Tube Corp.,4 andthe applicable test for tying claims brought under

state law.5 Because there are so many areas inwhich state and federal antitrust laws mightdiffer both substantively and procedurally, theexamples in the 2002 Article were not meant tobe exhaustive, but merely illustrative.

Here, we highlight several more examples ofareas in which state antitrust law may differsubstantially from federal law.6 We start withan update on minimum resale price maintenancepost-Leegin, where there are currently more ques-tions than answers regarding a state’s ability tochoose not to follow the new federal rule. Wethen turn to a discussion of an important anti-trust immunity—the state action doctrine—

which may or may not apply under many stateantitrust statutes and case law. Last, we discussthe differences between the federal and stategrants of parens patriae authority, which canlead to significant differences in the types ofremedies that a state attorney general maypursue under state versus federal law.

While many state statutes contain ‘‘harmoniza-tion’’ provisions, which provide in varying formsthat state courts should be ‘‘guided by’’ or ‘‘givedue deference to’’ federal antitrust cases, theharmonization provisions are rarely mandatory.Due to principles of sovereignty and federalism,

*ROBERT M. LANGER, a member of the Board of Editors of ANTITRUST REPORT, is a partner in the Hartford office of

WIGGIN AND DANA LLP and head of the firm’s Antitrust and Consumer Protection Practice Group. Mr. Langer

previously served as the Assistant Attorney General in charge of both Antitrust and Consumer Protection for the

State of Connecticut. Erika L. Amarante is a partner in the New Haven office of WIGGIN AND DANA LLP. Erik H.

Zwicker is a former litigation associate at Wiggin and Dana LLP and previously worked in the Antitrust

Department of the Connecticut Attorney General’s Office. He will be joining the United States Attorney’s

Office for the District of Columbia, and this article is written in his personal capacity.

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A N T I T R U S T R E P O R T

states remain free, with certain limited excep-tions,7 to choose a different interpretation fortheir state statutes, especially if the statutorylanguage is different. And, since every commer-cial transaction that affects commerce in theUnited States also affects commerce within somestate, at least one state’s antitrust laws will likelyapply to every company’s competitive decisions.

The toughest question is whether a state withexisting precedent under its state law, and gener-ally following federal antitrust law as a guide,will adopt a complete reversal of federal pre-cedent, like the Leegin decision, into statejurisprudence. Several factors will play into theanalysis: (1) whether the language in the statestatute differs from the language of the corre-sponding federal statute; (2) how developed theexisting state case law is on a particular topic;and (3) whether the state has a statutory ‘‘harmo-nization’’ provision or tends to follow federalprecedents as persuasive authority. Applyingthese and other factors, the result could, andlikely will, be different for different states,leading to a patchwork of antitrust laws tocomplement, or contradict, federal antitrustlaw. That patchwork adds several layers ofcomplexity to any attempt to counsel clientsabout their competitive activities. The examplesthat follow serve as cautionary illustrations ofhow critical it can be to consider applicablestate antitrust statutes and jurisprudence whencounseling clients.

Minimum Resale Price Maintenance: The

Uncertain FutureWe start with the obvious and recent example

of the states’ response to Leegin. Before Leegin,minimum resale price maintenance had beentreated, without deviation, as per se illegal bothby federal and state courts since at least theU.S. Supreme Court decision of Dr. MilesMedical Co. v. John D. Park & Sons Co.8 in 1911.Leegin thus overruled almost a century of prece-dent by extending the rule of State Oil Co. v.Khan9 and holding that all ‘‘vertical price

restraints are to be judged by the rule ofreason.’’10 For such a watershed decision, Leeginhas had a smaller impact on actual business prac-tices than expected, and for good reason. Notonly did states respond with differing interpreta-tions of their antitrust laws, but Congress alsoproposed (and continues to debate) legislationto overturn Leegin.11

Ironically, five years before Leegin, the 2002Article raised the issue of whether state antitrustlaw would follow the rule of Khan,12 which heldin 1997 that maximum resale price maintenancewas subject to the rule of reason, and not perse illegal. The article noted that thirty-threestates joined in an amicus curiae brief urgingthe Court to reach the opposite result in Khan,and that certain states, including California, hadprecedent holding both minimum and maximumresale price maintenance per se illegal.13

Similarly, in Leegin, thirty-seven states joinedin an amicus curiae brief urging the Court topreserve the rule of per se illegality forminimum resale price maintenance, again to noavail.14 The days following Leegin thereforecreated more questions than answers regardinghow the states might respond.

The first test case came in March 2008, just ninemonths after the Leegin decision.15 The states ofMichigan, Illinois and New York filed suit in theSouthern District of New York against high-endfurniture maker, Herman Miller, Inc., for alleg-edly fixing the minimum resale price at whichthe company’s furniture was advertised oroffered for sale.16 The complaint alleged a viola-tion of Section 1 of the Sherman Act and thestate antitrust laws of New York, Michigan andIllinois.17 Although the complaint did not expli-citly allege the theory that minimum price resalemaintenance is per se illegal, it also did not allegerelevant market power, indicating that the stateswere relying on a per se analysis. The complaintmade no mention of Leegin, or the fact that perse allegations would no longer suffice underfederal law.18

The Herman Miller complaint was interestingfor several reasons. First, New York’s position

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was not surprising, given its role as lead in thestates’ amicus brief in Leegin and the publicpronouncements from the New York AttorneyGeneral’s Office regarding the Leegin decision’seffect on New York state law.19 What wassurprising, however, was that the New Yorkstate law allegations in the Herman Millercomplaint rested solely on several provisions ofthe Donnelly Act itself and not on Section 369-aof the New York General Business Laws,20 whichprohibits price fixing as a matter of contract law.Although the publicly-stated position of the NewYork Attorney General’s Office has been thatSection 369-a, although not part of the state anti-trust statute, renders minimum resale pricemaintenance per se unlawful,21 the HermanMiller complaint did not cite Section 369-a at all.22

Second, that Michigan joined the complaintwas surprising, given that: (a) the relevant provi-sion of the Michigan Antitrust Reform Act(Section 445.772) is nearly identical to Section 1of the Sherman Act,23 and (b) the statute furtherprovides that ‘‘[i]t is the intent of the legislaturethat in construing all sections of this act, thecourts shall give due deference to interpretationsgiven by the federal courts to comparable anti-trust statutes, including, without limitation, thedoctrine of per se violations and the rule ofreason.’’24 Although ‘‘due deference’’ does notmandate that Michigan courts follow applicablefederal precedents, it appears that, as a practicalmatter, Michigan state law has very few differ-ences from the Sherman Act. Indeed, in a pre-Leegin vertical price-fixing case decided in 1995,the United States District Court for the District ofMichigan pronounced that ‘‘Michigan antitrustlaw is identical to federal law and follows thefederal precedents.’’25

Third, most surprising of all, Illinois joined theHerman Miller complaint, despite the fact that thelanguage and history of its state law can be inter-preted to apply the rule of reason to all claims ofresale price maintenance.26 Illinois also has a stat-utory harmonization provision, which providesin relevant part ‘‘[w]hen the wording of this Actis identical or similar to that of a federal antitrust

law, the courts of this State shall use theconstruction of the federal law by the federalcourts as a guide in construing this Act.’’27

Thus, Illinois appears to have diverted from itsown statutory text and precedents in order to jointhe Herman Miller complaint.

For some states, there may be textual differ-ences in the language of the statute that wouldlend support to the argument that minimumresale price maintenance is per se illegal underthat state’s law. For example, California’s Cart-wright Act provides that it is unlawful to ‘‘fix atany standard or figure, whereby its priceto the public or consumer shall be in anymanner controlled or established, any articleor commodity of merchandise, produce orcommerce intended for sale, barter, use orconsumption in this State. . . .’’28 In February2010, the California Attorney General filed acomplaint in California state court againstDermaQuest, Inc., alleging that a vertical resaleprice maintenance agreement was ‘‘in per seviolation of the Cartwright Act’’ and California’sunfair competition law.29 Within three weeks,the California Attorney General achieved a stipu-lated final judgment, imposing an injunction andcivil penalties.30 Because of the consent decree,the court did not need to decide whether theCartwright Act really does hold minimumresale price maintenance per se illegal, insteadof applying the rule of reason. The same wastrue in Herman Miller, where a consent decreequickly entered and the court never decided theapplicable standard of review.31 Thus, it remainsan open question whether courts will treatminimum resale price maintenance as per seillegal under the state antitrust laws in Cali-fornia, Michigan, Illinois and New York.

New York may soon have its answer. In March2010, the New York Attorney General filed a veri-fied petition against Tempur-Pedic International,Inc. that alleged that the company violated statelaw by enforcing minimum retail prices for itsproducts.32 The case is not based on the DonnellyAct, like Herman Miller was, and instead bringstogether New York General Business Law

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Section 369-a33 with New York Executive LawSection 63(12), which authorizes the New YorkAttorney General to file a petition ‘‘[w]heneverany person shall engage in repeated fraudulentor illegal acts or otherwise demonstrate per-sistent fraud or illegality in the carrying on,conducting or transaction of business.’’34

Tempur-Pedic’s pending motion to dismiss willforce the Supreme Court of New York to deter-mine whether Section 369-a—which providesonly that resale price maintenance agreementsare unenforceable, not illegal—can be used torender an alleged vertical price maintenanceagreement per se illegal.

Even when the text of a state statute differssubstantially from the Sherman Act andexpressly prohibits price fixing, it is far fromcertain that the state will apply the per se ruleto allegations of minimum resale price main-tenance. For instance, Tennessee’s statuteexplicitly prohibits ‘‘all arrangements, contracts,agreements, trusts, or combinations betweenpersons or corporations designed, or whichtend, to advance, reduce, or control the price orthe cost to the producer or the consumer of anysuch product or article. . . .’’35 Analyzing thatstatute, the United States District Court for theEastern District of Tennessee recently predictedthat the Tennessee Supreme Court would notlikely depart from Leegin and, therefore,dismissed a minimum resale price maintenanceclaim under state law for failure to establish arelevant product market.36 According to theDistrict Court: ‘‘Plaintiffs have asserted nogood reason why the Tennessee courts wouldnot follow the holding of the United StatesSupreme Court in Leegin and analyze resaleprice maintenance agreements under the rule ofreason.’’37

A Kansas trial court reached a similar con-clusion in O’Brien v. Leegin Creative LeatherProducts.38 The applicable Kansas statutedeclares it unlawful to ‘‘fix any standard orfigure, whereby such person’s price to thepublic shall be, in any manner, controlled orestablished.’’39 Interpreting this statute, the

Kansas trial court rejected the per se rule andinstead opted in favor of applying a rule ofreason to the minimum resale price maintenanceclaim. The Kansas Supreme Court will reviewthat decision on direct appeal, and soon will bethe first appellate court to decide, post Leegin,whether a minimum resale price maintenanceclaim, prosecuted under state law, should beadjudged under the per se rule or the rule ofreason.40 As in most states, the outcome of theO’Brien case will depend on a variety of indivi-dualized factors. For instance, Kansas generallytakes a strict approach to resale price main-tenance agreements.41 There is no federalharmonization provision in the Kansas statute,and the Kansas Supreme Court has held thatwhile federal antitrust precedent ‘‘may bepersuasive authority for any state court inter-preting its antitrust laws, such authority is notbinding upon any court in Kansas interpretingKansas antitrust laws.’’42 Last, the KansasAttorney General has filed an amicus brief inthe O’Brien case arguing that resale price main-tenance is per se illegal under Kansas state law.43

Where the Kansas Supreme Court will land onthis issue remains to be seen.

One state has responded aggressively toLeegin, and amended its state antitrust statute toexpressly reject application of the rule of reasonto minimum resale price maintenance. In 2009,the Maryland General Assembly amended theMaryland Antitrust Act to provide explicitlythat ‘‘a contract, combination, or conspiracy thatestablishes a minimum price below which aretailer, wholesaler, or distributor may not sella commodity or service is an unreasonablerestraint of trade or commerce.’’44 Despite aharmonization provision in the Maryland Anti-trust Act,45 this 2009 amendment makes clearthat Maryland is intentionally departing fromfederal law with respect to the U.S. SupremeCourt’s decision in Leegin.

Whether the Maryland amendment complieswith principles of federalism is another openquestion. While Maryland and other states thatmay interpret their laws as prohibiting any and

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all minimum resale price maintenance agree-ments will argue that the United StatesSupreme Court decision in California v. ARCAmerica Corp.46 is dispositive, that decisiondealt only with the states’ ability to provide aremedy to indirect purchasers that would notbe available under federal law in the wake ofIllinois Brick.47 The Supreme Court held that therule limiting recoveries under the Sherman Actdid not also prevent indirect purchasers fromrecovering damages flowing from violationsunder state law.48

ARC America’s decision that a group of plain-tiffs could recover under state law when thatsame group could not recover under federallaw is fundamentally distinct from the questionof whether a party can be liable for a price-fixingconspiracy under state law yet not liable for thesame conduct under federal law.49 Simply put,ARC America concerned procedural, not substan-tive, differences in antitrust law.50 If there is afederal policy holding that resale price mainte-nance may be procompetitive and should bejudged under the rule of reason, query whetherthe states can contradict that federal policy.51 Thequestion of liability under one regime but not theother was neither addressed nor decided in ARCAmerica, and likely will not be addressed in theresale price maintenance context for many yearsto come.

The one consistent lesson in the three yearssince Leegin is that the shape of resale price main-tenance law will continue to be inconsistent anduncertain. Each state statute will require inter-pretation based on many individualized factors:the language in the statute’s text, the legislativehistory and intent, any pre-Leegin precedent onresale price maintenance, whether the state has aharmonization provision in its statute and/orfollows federal precedent in its case law and, ifso, how the harmonization is applied in practice.Analyzing these factors may lead to a differentresult in different states. Adding complexity,states may choose to follow the aggressive paththat Maryland blazed, and pass additional‘‘Leegin repealer’’ statutes. The future of resale

price maintenance law is likely to remainunsettled for many years to come.

State Action Immunity: Free From Federal Law

Does Not Spell Safe Under State LawThe state action doctrine is another area of

antitrust law where state laws may differ fromfederal jurisprudence. Born out of the U.S.Supreme Court decision of Parker v. Brown,52

the state action doctrine, as it was originallyconceived, stands for the proposition that afederal court cannot enjoin a state from creatingand effectuating a regulatory scheme on theground that the state policy impedes competi-tion.53 In its most succinct form, the state actiondoctrine provides that a state is immune fromfederal antitrust laws. Since state policies areoften implemented on a local or private level,however, the Supreme Court later extended thisholding to provide federal antitrust immunity tomunicipalities, and even private actors, forconduct that is the foreseeable result of a statestatute and, in the case of private actors, isactively supervised by the state.54 In CaliforniaRetail Liquor Dealers Association v. MidcalAluminum, Inc.,55 the Supreme Court announceda two-part test for determining whether stateaction immunity should apply: ‘‘[f]irst, the chal-lenged restraint must be ‘one clearly articulatedand affirmatively expressed as state policy’;second, the policy must be ‘actively supervised’by the State itself.’’56

But this is only half of the story. The stateaction doctrine is based on the principle thatfederal antitrust laws are not intended todisrupt or restrain clearly established state regu-latory policies.57 It does not follow that stateantitrust laws are equally impotent in regard tostate regulatory policies. The principles of feder-alism and comity, on which the federal stateaction doctrine stands, have no application inthe context of a state policing its own policies.

That said, state legislatures are free to specify ifand when a state policy or program is immunefrom antitrust scrutiny under its own state

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antitrust laws. Often, states will include a statu-tory exemption for state action in their antitruststatutes. However, the existence of a statutoryprovision immunizing state action from antitrustlaws does not guarantee immunity for privateactors participating in a government-run reg-ulatory program. The statutory exemption,depending on its precise language, could beinterpreted as a state parallel to the federalstate action immunity doctrine; it could be readto offer additional immunity from state antitrustlaws, or it could be construed to narrow stateaction immunity under state law.

As with resale price maintenance, discussedabove, it is critical to examine the text of eachparticular state statute, existing precedent andwhether the state has a harmonization provisionin order to evaluate the scope of state actionimmunity, if any, that exists under a particularstate’s law. Because that analysis will be indivi-dualized for each of the fifty states, we haveincluded a state-by-state chart as an appendixto this article. As detailed in the appendix, atone end of the spectrum, there are more than adozen states that have not enacted any statutoryantitrust exemption for state or municipalaction.58 On the other extreme, seven statesexpressly incorporate the federal state actiondoctrine into their statutes.59 The majority ofstates fall somewhere in between: the statuteincludes some form of express immunity forstate or municipal action, and the language andhistory of the statutory text, as well as the state’sharmonization provision, if any, and case law,will determine the scope of that immunity.

Some states, like California and Oklahoma,have avoided the question altogether, at leastwith respect to certain governmental entities,by narrowing the definition of ‘‘persons’’subject to the state antitrust act.60 For example,the Cartwright Act defines the term ‘‘persons’’ toinclude ‘‘corporations, firms, partnerships andassociations,’’ thereby exempting states andmunicipalities from the provisions of the Act.61

The Oklahoma Antitrust Reform Act takesan even more direct approach by explicitly

excluding ‘‘the State of Oklahoma, its depart-ments, and its administrative agencies’’ fromthe definition of ‘‘person.’’62 These provisionssay nothing about whether private partiesacting pursuant to a state or municipal programwould be exempt from antitrust scrutiny. More-over, these provisions should not necessarily beread as statutory counterparts to Parker immu-nity. For example, in Fine Airport Parking v. Cityof Tulsa,63 the Oklahoma Supreme Court consid-ered a state antitrust claim against the City ofTulsa in which the plaintiff alleged that theCity operated an airport parking facility in viola-tion of the Oklahoma Antitrust Reform Act.Although the Court ultimately held that thecity’s conduct was not subject to state antitrustlaws because it was the intention of the statelegislature that the city act ‘‘as the arm of thestate for the public good’’ in its operations ofthe facility, Oklahoma’s highest court rejectedthe incorporation of the federal state actionimmunity doctrine into state law because ‘‘[t]heprinciples of federalism supporting the Parkerdoctrine are meaningless in an analysis of muni-cipal liability under the Oklahoma AntitrustReform Act.’’64

The Supreme Courts of Indiana and Wisconsinhave likewise determined that ‘‘federal pre-cedent is [not] appropriate in consideringwhether governmental immunity is available tomunicipal and local government units understate antitrust laws.’’65 Although neither statehas incorporated any governmental immunityinto its state antitrust statutes, courts in bothstates have found certain governmental actorsto be immune from state antitrust liability.66

Connecticut provides another example of anarrowly-construed doctrine of state actionimmunity. Connecticut General Statutes Section35-31(b) provides in relevant part that ‘‘Nothingcontained in [the Connecticut Antitrust Act] shallapply to those activities of any person when saidactivity is specifically directed or required bya statute of this state, or of the United States.’’67

In 1975, in Mazzola v. Southern New England Tele-phone Co.,68 the Connecticut Supreme Court

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interpreted Section 35-31(b) to represent ‘‘anarrowly drawn version of the doctrine of ‘stateaction’ immunity from antitrust liability articu-lated by the United States Supreme Court inParker v. Brown.’’69 As the Mazzola court pointedout, the ‘‘Parker doctrine draws a firm line, inshort, between activities actually commandedby the state, which are immune from antitrustliability and action merely approved or toler-ated.’’70 In contrast, Section ‘‘35-31(b) limits [theParker] holding by purporting to immunize onlyactivities which are ‘specifically’ required ordirected by state or federal statutes.’’71 TheCourt therefore determined that the govern-mental immunity under Connecticut law wasmore narrow than that under the federal cases.

Thirty years later, the Connecticut SupremeCourt revisited Section 35-31(b), to decidewhether Connecticut’s passage of a harmoniza-tion provision in 1992 required the Court toincorporate the broader federal standards forstate action immunity it had rejected inMazzola. In Miller’s Pond Co. v. City of NewLondon,72 the Supreme Court answered thatquestion in the negative, and adhered to thenarrowly-defined state action immunity setforth expressly in Section 35-31(b) and its priordecisions. First, the Miller’s Pond court noted thatthe state’s new harmonization statute ‘‘merelygave legislative imprimatur to what this courthas been doing long before its enactment,namely, looking to case law construing relevantfederal statutes as persuasive authority.’’73 TheCourt also held that the harmonization statutewas without application when analyzinga ‘‘state antitrust statute without federalparallel.’’74 Second, because state courts are notrequired to ‘‘incorporate the federal case lawdefining state action immunity into’’ Section 35-31(b), the Court held that it would follow Mazzolaas the governing standard for state action immu-nity from Connecticut antitrust laws.75

The lesson is clear: State action immunity fromfederal antitrust laws does not ensure state actionimmunity from state antitrust laws. Therefore,before advising a client in a highly regulated

industry about whether and how to proceedwith a regulatory program that may result inanticompetitive effects, practitioners need toconsider not only the Parker progeny but alsostate statutory exemptions, state harmonizationstatutes and state case law interpreting the appli-cation of Parker to state antitrust laws.

Parens Patriae Authority: Expanded Damages,

Longer Time To Sue?Why are the differences between federal and

state antitrust laws so relevant for the antitrustpractitioner? The answer is that private plaintiffsand state attorneys general alike have the oppor-tunity to choose wholesale which law they wantto apply. Whether it is to have standing as anindirect purchaser, to benefit from the per serule when alleging a maximum or minimumresale price maintenance violation or to sue forconduct that fits squarely within Parker, privateplaintiffs can take advantage of the divergencebetween federal and state law by filing suitunder state antitrust statutes rather than Title15 of the United States Code. State attorneysgeneral, too, can be expected to pursue a claimunder federal law, state law or both dependingupon which is more favorable to their case.76

The same holds true when a state attorneygeneral brings suit, ‘‘not because of any parti-cular injury to a business of the state,’’ but onbehalf of ‘‘all her citizens,’’77 or parens patriae.Federal law grants state attorneys generalparens patriae standing to bring a federal anti-trust claim in federal court.78 Most stateattorneys general also have parens patriaeauthority to bring a state claim in state court.79

In some instances, key procedural differencesbetween the federal grant of parens patriaeauthority and the state grant of parens patriaeauthority can lead to a greater price tag for aclient defending an antitrust claim under statelaw. Therefore, parens patriae is not only avehicle by which state attorneys general canbring federal and state antitrust claims onbehalf of the citizens of the state, it is also

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another example where the difference betweenfederal and state antitrust law can lead theunknowing practitioner to give inaccurate, andcostly, advice.

Twenty-three states and the District ofColumbia80 have granted state attorneysgeneral standing, by statute, to bring a parenspatriae claim under state antitrust law.81 Otherstates have granted state attorneys generalparens patriae authority under the commonlaw.82 For example, in Louisiana, there is noexplicit parens patriae provision in the state’santitrust statutes. Nevertheless, Louisianacourts have recognized parens patriae authorityarising from Article IV, Section 8 of the LouisianaConstitution, which provides that ‘‘the attorneygeneral shall have authority . . . to institute,prosecute, or intervene in any civil action orproceeding’’ as necessary ‘‘for the assertion orprotection of any right or interest of thestate.’’83 Similarly, although the Maine antitrustlaws do not have a statutory provision grantingparens patriae standing to the state attorneygeneral, at least one federal court has held thatthe Maine Attorney General has authority asparens patriae to seek damages under Maine’santitrust laws.84

For the antitrust practitioner, a state attorneygeneral’s authority to bring a parens patriaeaction under state law is significant, not justbecause a state attorney general can choose thelaw most favorable to the state, but also becausethe state authority may provide for additionalremedies, or procedural advantages, that wouldbe unavailable under the federal counterpart. Asjust one example, state law can differ on the issueof when a state might bring an action. Whilefederal antitrust law has a four-year statute oflimitations for a parens patriae actions,85 statesmay have limitations periods of varying length,or none at all. Maine has a six-year statuteof limitations that is applicable to all civilactions.86 In non-antitrust cases, the MaineAttorney General has taken the position thatthe six-year statute of limitations is not enforce-able against the state.87 Whether that argument

would prevail in a parens patriae case based onthe Maine antitrust act remains to be seen.

Similarly, while Connecticut’s statute containsa four-year statute of limitations for seekinginjunctive relief or treble damages,88 the statutedoes not specifically state a limitations period foran antitrust action brought by the State as parenspatriae.89 At least one trial court has held thatthere is no statute of limitations for parenspatriae actions under Connecticut law.90 Thereis an argument, however, that the four-yearlimitations period applies when the State issuing ‘‘on behalf of the people of the state,’’ ifthe individuals themselves would be time-barred from bringing a claim in their ownright.91 That issue remains open under Connec-ticut law. Maine and Connecticut are just twoexamples where the limitations period may belonger than that under federal law, or evennon-existent. These differences can be criticalwhen advising clients, and illustrate the need tostay apprised of developments under state law.

In addition to the discrepancy between thefederal and state statutes of limitations, federalstatutory parens patriae authority and stateparens patriae authority also diverge becauseSection 4C of the Clayton Act limits a stateattorney general’s authority to ‘‘act as parenspatriae’’ only on behalf of ‘‘natural persons’’and does not permit a state attorney general torecover damages on behalf of business entities.92

Close attention to state parens patriae statutes,however, provides at least the argument thatthis is not always the case under state law. Forexample, Connecticut’s parens patriae statuteprovides that the ‘‘Attorney General may . . ., inenforcing the provisions of this chapter, bring anaction’’ as ‘‘parens patriae for persons residing inthe state.’’93 Not only does the Connecticutstatute, unlike its federal counterpart, omit themodifier ‘‘natural’’ before ‘‘person,’’ but theConnecticut Antitrust Act also defines ‘‘person’’to mean ‘‘any individual, proprietorship,corporation, limited liability company, firm,partnership, incorporated and unincorporatedassociation, or any other legal or commercial

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entity.’’94 This possible expansionunder state parens patriae authority,even if it remains an open question,changes the calculus in evaluating aclient’s risks.

Connecticut, like Nevada andVirginia, is also one of three statesthat explicitly provides, by statute,that the state attorney general canrecover damages to the state’sgeneral economy as the result of anantitrust violation.95 Federal parenspatriae authority does not permit therecovery of damages to a state’sgeneral economy.96 Although neitherNevada nor Virginia courts haveexpounded in a reported decision todate on the general economy damageprovision, the Connecticut SupremeCourt has determined that ‘‘the statehas standing to pursue a parenspatriae antitrust claim for damagesto its general economy pursuant to§ 35-32(c)(2).’’97 In State v. Marsh &McLennan Cos.,98 the Court consideredConnecticut’s harmonization provi-sion, Section 35-44b, but held that theprovision does not require the Court‘‘to incorporate the federal preclusionof general economy damages into thestate antitrust scheme.’’99 Instead, theCourt noted that ‘‘our legislature,unlike Congress, expressly made[general economy damages] availablein parens patriae antitrust actions.’’100

To follow federal law in this regard‘‘would render the general economydamages provision of § 35-32(c)(2)superfluous, a result we cannot coun-tenance.’’101

The foregoing examples make clearthat the particular intricacies of astate’s parens patriae authority can

lead a practitioner, and hence aclient, down an unforgiving path faraway from the known boundaries offederal law. Careful attention to stateantitrust statutes and cases is there-fore a must for the antitrustpractitioner.

ConclusionIn 2002, we concluded that ‘‘the

most elementary lesson to learn fromthe states’ willingness to reject federalantitrust analysis when it strikes themas inconsistent with their own priorprecedent—or merely wrong—is thatit is very difficult to counsel corporateclients on how to avoid antitrustclaims.’’102 That statement holds truetoday. The patchwork of antitrustlaws in each state may complement,contradict or conflict with federallaw. There are myriad examples ofpossible differences between stateand federal law, and this article hashighlighted only a few. But the exam-ples discussed here and in the 2002Article should make it painfullyobvious to antitrust practitioners,and their clients, that they simplycannot ignore the laws of the statesin which they do business. Practi-tioners must pay close attention tostates’ ever-evolving, and often incon-sistent, approaches to federal law, aswell as their reactions to any possibleor future changes in the federal law.Only by staying apprised of state anti-trust law can we hope to evaluate andaddress more accurately the uniqueantitrust issues, choices, and risksfacing our clients on a daily basis.

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NOTES

1 See Robert M. Langer, Suzanne E.Wachsstock and Erika L. Amarante, SoYou Think You’re Safe Under the AntitrustLaws? A Word of Advice to Those WhoWould Ignore the States, ANTITRUST REPORT

(Matthew Bender, Fall 2002) (hereinafterthe ‘‘2002 Article’’).2 551 U.S. 877 (2007).3 431 U.S. 720 (1977); see 2002 Article at 74–

79. Since the 2002 Article, there have beenmany additional decisions on the indirectpurchaser doctrine. For a fifty-state surveyof Illinois Brick repealer statutes, see MichaelA. Lindsay, Overview of State RPM, ANTI-

TRUST SOURCE, October 2009, available athttp://www.abanet.org/antitrust/at-source/09/10/Oct09-LindsayChart10-23f.pdf.4 467 U.S. 752 (1984); see 2002 Article at 79–

82 (noting that the Louisiana SupremeCourt rejected Copperweld’s holdingunder its state antitrust act in LouisianaPower & Light Co. v. United Gas Pipe LineCo., 493 So.2d 1149, 1160 (La. 1986)). Sincethe 2002 Article was published, theLouisiana Legislature amended La. Rev.Stat. Ann. § 51:122 on August 15, 2003 toprovide that, under Louisiana antitrustlaw, ‘‘a parent corporation, limitedliability company, partnership, or partner-ship-in-commendam is not capable ofconspiring with any subsidiary that itcontrols, and each such controlledsubsidiary is not capable of conspiringwith any other wholly owned subsidiarycontrolled by the same common parent.’’La. Rev. Stat. Ann. § 51:122(c) (2010).5 See 2002 Article at 85–87.6 Again, as in 2002, we do not intend tooffer a comprehensive analysis of thematerial differences between state andfederal antitrust laws, or the proceduralinterrelationships between state andfederal enforcement bodies. Many

resources exist for such a comprehensiveoverview. See, e.g., ABA SECTION OF ANTI-

TRUST LAW, STATE ANTITRUST PRACTICE AND

STATUTES (4th Ed. 2009) (hereinafter‘‘STATE ANTITRUST PRACTICE AND STATUTES’’).7 There are circumstances where stateantitrust laws have been preempted. See,e.g., Connell Constr. Co. v. Plumbers &Steamfitters Local Union No. 100, 421U.S. 616, 635–37 (1975) (holding that,with respect to labor policy, ‘‘federal lawdoes not admit the use of state antitrustlaw to regulate union activity that isclosely related to organizational goals’’);Robertson v. NBA, 389 F. Supp. 867, 880–

81 (S.D.N.Y. 1975) (concluding that the‘‘interstate nature of professional basket-ball precludes state antitrust regulation’’);Partee v. San Diego Chargers FootballCo., 668 P.2d 674, 678–79 (Cal. 1983)(concluding that ‘‘application of theCartwright Act’’ to professional football,‘‘would be in conflict with the commerceclause’’).8 220 U.S. 373 (1911).9 522 U.S. 3 (1997).10 551 U.S. 877, 882 (2007).11 After Leegin, bills were sponsored inboth the House and Senate seeking tooverturn the decision. For example, inOctober 2007, Senators Kohl, Biden andClinton introduced Senate Bill 2261which proposed to add the followingsentence to Section 1 of the Sherman Act:‘‘Any contract, combination, conspiracy oragreement setting a minimum price belowwhich a product or service cannot be soldby a retailer, wholesaler or distributorshall violate this Act.’’ Discount PricingConsumer Protection Act, S. 2261, 110thCong. (1st Sess. 2007). Similar bills havebeen re-introduced each year in both theHouse and Senate. See, e.g., Discount

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Pricing Consumer Protection Act of 2009,H.R. 3190, 111th Cong. (1st Sess. 2009).12 See 2002 Article at 82–85 (discussingKhan, 522 U.S. at 3).13 See id. at 83–84.14 The State of New York took the lead inthe amicus brief, joined by the states ofAlaska, Arkansas, Connecticut, Delaware,Florida, Hawaii, Idaho, Illinois, Iowa,Kansas, Kentucky, Louisiana, Maine, Mary-land, Massachusetts, Michigan, Minnesota,Mississippi, Missouri, Montana, Nevada,New Hampshire, New Jersey, NewMexico, North Carolina, Ohio, Oklahoma,Oregon, Pennsylvania, South Carolina,South Dakota, Utah, Vermont, Washington,West Virginia, and Wyoming.15 The Leegin decision was issued on June28, 2007.16 New York v. Herman Miller, Inc., No.08-cv-2977 (S.D.N.Y. Mar 25, 2008).17 Id. Specifically, the complaint assertedviolations of N.Y. Gen. Bus. Law§§ 340(1), 342 & 342-a; 740 Ill. Comp. Stat.10/3; and the Mich. Comp. Laws Ann.§ 445.771 et seq. See Herman Miller, supran.16, at }} 47–49.18 See Herman Miller, supra n. 16.19 See, e.g., Jay L. Himes, New York’s Prohi-bition of Vertical Price-Fixing, N.Y.L.J. (Jan.29, 2008) at 4.20 N.Y. Gen. Bus. Law § 369-a, entitled‘‘Price-fixing prohibited,’’ provides inrelevant part: ‘‘[a]ny contract provisionthat purports to restrain a vendee ofa commodity from reselling suchcommodity at less than the price stipu-lated by the vendor or producer shall notbe enforceable or actionable at law.’’21 See Himes, supra n.19, at 4 (‘‘In view of§ 369-a, courts applying New York lawshould continue to treat vertical pricefixing as a per se Donnelly Act violation,

regardless of Leegin’s change in federalantitrust law.’’)22 See Herman Miller, supra n. 16, at } 47.Although the Donnelly Act does notcontain a statutory harmonization provi-sion, case law supports using federalprecedent as a guide. See, e.g., Anheuser-Busch, Inc. v. Abrams, 520 N.E.2d 535, 539(N.Y. 1988) (‘‘[The Act] should generallybe construed in light of Federal precedentand given a different interpretation onlywhere state policy, differences in statutorylanguage or legislative history justify sucha result.’’).23 Mich. Comp. Laws Ann. § 445.772(2010) provides: ‘‘A contract, combination,or conspiracy between 2 or more personsin restraint of, or to monopolize, trade orcommerce in a relevant market isunlawful.’’ Compare 15 U.S.C. § 1 (2010):‘‘Every contact, combination in the formof trust or otherwise, or conspiracy, inrestraint of trade or commerce among theseveral States, or with foreign nations, ishereby declared to be illegal.’’24 Mich. Comp. Laws § 445.784(2) (2010).25 Little Caesar Enters. v. Smith, 895 F.Supp. 884, 898 (D. Mich. 1995).26 See STATE ANTITRUST PRACTICE AND

STATUTES, Illinois, at 16-9 & n.59 (citinglegislative history of the Illinois statuteand noting that resale price maintenanceis prohibited only in cases when it unrea-sonably restrains trade or commenceunder the rule of reason); see also STATE

ANTITRUST PRACTICE AND STATUTES, Illinois,at 16-10 (‘‘Illinois case law on verticalprice fixing . . . is consistent with theholding in Leegin that the rule of reasonapplies to analysis of vertical price-fixingagreements’’).27 740 Ill. Comp. Stat. 10/11 (2010)(emphasis added).28 Cal. Bus. & Prof. Code § 16720 (2010).Besides California, more than a dozen

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states have language in their antitruststatutes that specifically mentions pricefixing or controlling prices and arguablymay require application of the per se ruleto minimum resale price maintenance.See, e.g., Michael A. Lindsay, Overview ofState RPM, ANTITRUST SOURCE, October2009, available at http://www.abanet.org/antitrust/at-source/09/10/Oct09-LindsayChart10-23f.pdf (citing statutory provisionsfrom California, Connecticut, Hawaii,Illinois, Indiana, Kansas, Maryland, Minne-sota, Mississippi, Montana, Nevada, NewJersey, New York, Ohio, South Carolina,Tennessee, and West Virginia).29 California v. DermaQuest, Inc., No.RG10497526, at }} 14, 17 (Cal. Sup.Ct. Feb. 5, 2010). California’s position inthis regard is not surprising. In fact, the2002 Article highlighted California as astate that might decline to follow Khan’sholding that maximum resale pricemaintenance agreements are subject tothe rule of reason. See 2002 Article at 84.30 See id., ‘‘Final Judgment IncludingPermanent Injunction,’’ February 23, 2010.31 See Herman Miller, supra n.16, ‘‘Stipu-lated Final Judgment and ConsentDecree,’’ March 25, 2008.32 See New York v. Tempur-Pedic Int’l,Inc., No. 04008337/10, (NY. Sup. Ct. Mar,29, 2010).33 N.Y. Gen. Bus. Law § 369-a (2010), supran. 20.34 N.Y. Exec. Law § 63(12) (2010).35 Tenn. Code Ann. § 47-25-101 (2010).36 See Spahr v. Leegin Creative LeatherProds., NO. 2:07-CV-187, 2008 U.S. Dist.LEXIS 90079, at *42 (E.D. Tenn. Aug. 20,2008), appeal dismissed, File No. 08-6165(6th Cir. Nov. 20, 2008).37 Id.38 O’Brien v. Leegin Creative LeatherProds., Inc., No. 04-CV-1668 (8th Judicial

Dist., Sedgwick County Kan. July 9, 2008),direct appeal to Kansas Supreme Courtgranted, file No. 101000 (Oct. 6, 2008).39 Kan. Stat. Ann. §§ 50-101 & 50-112(2009).40 O’Brien, supra n.38.41 See STATE ANTITRUST PRACTICE AND

STATUTES, Kansas, at 19-8; see also Joslin v.Steffen Ice & Ice Cream Co., 54 P.2d 941, 943(Kan. 1936) (holding that an oral agree-ment between an ice supplier andgrocery that fixed the grocery’s retailprice of ice violated Kansas law, withoutany analysis of competitive effects: ‘‘Amanufacturer of ice may fix the price atwhich he will sell his product, but thelaw will not permit him and his buyer toagree as to the price the latter will chargewhen he in turn sells that product to thirdparties’’).42 Bergstrom v. Noah, 974 P.2d 520, 531(Kan. 1999).43 See Brief for the State of Kansas asAmicus Curiae, O’Brien v. Leegin CreativeLeather Prods., No. 08-10100-S (Kan. Aug.12, 2010) (on file with authors).44 Md. Code Ann., Com. Law § 11-204(a)(2010).45 The Maryland Antitrust Act providesthat ‘‘[i]t is the intent of the GeneralAssembly that, in construing this subtitle,the courts be guided by the interpretationgiven by the federal courts to the variousfederal statutes dealing with the same orsimilar matters.’’ Md. Code Ann., Com.Law § 11-202(a)(2) (2010).46 490 U.S. 93 (1989).47 431 U.S. 720 (1977).48 490 U.S. at 100. See also 2002 Article at75.49 See Submission of Robert M. Langer tothe Federal Trade Commission, ResalePrice Maintenance Workshop—P090400,Dec. 10, 2008, at 9–10, available at

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www.ftc.gov/os/comments/resalepricemaintenance/index.shtm (hereinafter‘‘Langer Submission’’).50 See, e.g., Michael A. Lindsay, ‘‘ResalePrice Maintenance and the World AfterLeegin,’’ 22(1) ANTITRUST 32, 33 (Fall 2007)(‘‘ARC America dealt with a procedural orremedial rule, rather than a substantiverule of conduct. Leegin, however, dealtwith a substantive rule of conduct:whether minimum RPM agreements areautomatically illegal.’’); see also MichaelA. Lindsay, State Resale Price MaintenanceLaws After Leegin, ANTITRUST SOURCE (Oct.2009), at 5–6, available at http://www.abanet.org/antitrust/at-source/09/10/10-09.html.51 See Langer Submission, at 6–9. Toanswer this question properly wouldrequire a lengthy discussion of sovereignty,federalism and the Eleventh Amendmentthat is beyond the scope of this article. Fora discussion of these principles in anothercontext, see generally Robert M. Langer &Peter A. Barile III, Can the King’s Physician(Also) Do No Wrong? Health Care Providersand a Market Participation Exception to theState Action Immunity Doctrine, ANTITRUST

REPORT 2 (Matthew Bender, October 1999)(hereinafter ‘‘Langer & Barile’’).52 317 U.S. 341 (1943).53 State action immunity, as applied to thestate itself, is limited to equitable reliefbecause the Eleventh Amendment safe-guards the state from paying monetarydamages in federal court. See generallyLanger & Barile, supra n.51, at 5–9.54 See Town of Hallie v. City of Eau Claire,471 U.S. 34, 45 (1985) (extending stateaction immunity to a municipalitybecause the municipality’s actions weretaken ‘‘pursuant to a clearly articulatedstate policy’’); S. Motor Carriers RateConference, Inc. v. United States, 471U.S. 48, 65–66 (1985) (holding that thedefendants, private rate bureaus, were

immune from federal antitrust liabilitybecause their anticompetitive conductwas ‘‘taken pursuant to a clearly articu-lated state policy’’ and was ‘‘activelysupervise[d]’’ by the ‘‘States, throughtheir agencies’’). Along the same lines,the Clayton Act also expressly prohibitsthe recovery of damages ‘‘in any claimagainst a person based on any officialaction directed by a local government, orofficial or employee thereof acting in anofficial capacity.’’ 15 U.S.C. § 36(a) (2010).55 445 U.S. 97 (1980).56 Id. at 105 (quoting City of Lafayette v.Louisiana Power & Light Co., 435 U.S.389, 410 (1978)).57 See Parker v. Brown, 317 U.S. at 350–51(holding that the Sherman Act ‘‘gives nohint that it was intended to restrain stateaction or official action directed by astate’’).58 See generally Appendix (Arizona,Arkansas, Hawaii, Indiana, Louisiana,Mississippi, New York, North Carolina,Pennsylvania, South Dakota, Vermont,Wisconsin, and Wyoming). Of course, theabsence of a statutory provision does notmean that the state would not apply thestate action immunity doctrine, in someform, as a matter of common law. See,e.g., In re Bates, 555 P.2d 640, 642–43(Ariz. 1976) (citing Parker with approvalin the context of a federal and state anti-trust claim); Reppond v. City of DenhamSprings, 572 So.2d 224, 229–30 (La. Ct.App. 1990) (applying the federal stateaction immunity standard in decidingwhether a municipality was immuneunder Louisiana antitrust law); MadisonCablevision, Inc. v. City of Morganton,386 S.E.2d 200, 212–23 (N.C. 1989)(applying federal state action immunitytest to a state law claim).59 See generally Appendix (Colorado,Florida, Idaho, Massachusetts, NorthDakota, Rhode Island, and Utah).

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60 See id. (California, Ohio and Oklahoma).61 Cal. Bus. & Prof. Code § 16702 (2009); seealso Freitas v. City of San Francisco, 92 Cal.App. 913, 921 (Cal. Ct. App. 1979)(confirming that cities and political subdi-visions are not ‘‘persons’’ who can be suedunder the Cartwright Act).62 Okla. Stat. tit. 79, § 202(3) (2010).63 Fine Airport Parking, Inc. v. City ofTulsa, 71 P.3d 5 (Okla. 2003).64 Id. at 15, 23.65 Brownsburg Cmty. Sch. Corp. v. NatareCorp., 824 N.E.2d 336, 348 (Ind. 2005); seealso Hallie v. Chippewa Falls, 314 N.W.2d321, 323–24 (Wis. 1982) (stating that thefederal ‘‘Parker exemption is not applic-able’’ to a state antitrust claim becausethe ‘‘relationship between the federalgovernment and the states is not parallelto the relationship between the stategovernment and the cities’’).66 See Brownsburg, 824 N.E.2d at 341;Hallie, 314 N.W.2d at 326. But see AmericanMed. Transp. v. Curtis-Universal, Inc., 452N.W.2d 575, 579–83 (Wis. 1990) (holdingthat the city of Milwaukee is not immunefrom state antitrust liability in connectionwith its adoption of an allegedly anticom-petitive ambulance service system becausethe court could not conclude that ‘‘theauthority of towns and counties tocontract for ambulance services evinces alegislative intent to contract in a way thatleads to monopoly or restraint of trade’’)(internal quotations omitted).67 Conn. Gen. Stat. § 35-31(b) (2010)(emphasis added).68 363 A.2d 170 (Conn. 1975).69 Id. at 178 (internal quotations omitted).70 Id. at 179.71 Id. at 178. The Mazzola court character-ized the Parker test as allowing an antitrustexemption for activities that were‘‘commanded’’ or ‘‘directed’’ by a state

legislature. Id. Thus, the Court read assignificant the Connecticut GeneralAssembly’s choice of the phrase ‘‘specifi-cally directed or required by a statute.’’ Id.(emphasis added).72 873 A.2d 965 (Conn. 2005).73 Id. at 980 (citing Westport Taxi Serv., Inc.v. Westport Transit Dist., 664 A.2d 719, 728(1995)).74 Id. at 981.75 Id. at 979.76 For example, if the Maryland AttorneyGeneral’s Office is bringing a minimumresale price maintenance claim, it willlikely file suit under state law due toMaryland’s Leegin repealer statute.77 Hawaii v. Standard Oil Co., 405 U.S.251, 258 (1972).78 See Sections 4 & 16 of the Clayton Act, 15U.S.C. §§ 15c(a)(1) & 26 (2010). Section 4 ofthe Clayton Act grants state attorneysgeneral parens patriae authority torecover monetary damages. Section 16 ofthe Clayton Act has been interpreted togive state attorneys general parenspatriae standing to sue for injunctiverelief. See Georgia v. Pennsylvania R.R.Co., 324 U.S. 439 (1945).79 See, e.g., Cal. Bus. & Prof. Code§ 16760(a)(1) (‘‘[t]he Attorney Generalmay bring a civil action in the name ofthe people of the State of California, asparens patriae on behalf of naturalpersons residing in the state, in thesuperior court of any county which hasjurisdiction of a defendant, to securemonetary relief as provided in thissection for injury sustained by thosenatural persons to their property byreason of any violation of this chapter.’’).80 See D.C. Code Ann. § 28-4507 (2010).81 The twenty-three states are: (1)Arkansas—Ark. Code Ann. § 4-75-212(b)(2010); (2) California—Cal. Bus. & Prof

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Code § 16760(a)(1) (2010); (3) Colorado—

Colo. Rev. Stat. § 6-4-112(1) (2010); (4)Connecticut—Conn. Gen. Stat. § 35-32(c)(2010); (5) Delaware—Del Code Ann. Tit.6, § 2108(b) (2010); (6) Florida—Fla. Stat.Ann. § 542.27(2) (2010); (7) Hawaii—Haw. Rev. Stat § 480-14(c) (2010); (8)Idaho—Idaho Code § 48-108(2) (2010); (9)Illinois—740 Ill. Comp. Stat. Ann. 10/7(2)(2010); (10) Kansas—Kan. Stat. Ann. § 50-103(8) (2009); (11) Maryland—Md. CodeAnn., Com. Law § 11-209(b)(5) & (c)(2010); (12) Minnesota—Minn. Stat. Ann.§ 325D.59 (2009); (13) Nebraska—Neb.Rev. Stat. § 84-212 (2010); (14) Nevada—

Nev. Rev. Stat. § 598A.160 (2010); (15)Ohio—Ohio Rev. Code Ann. § 109.81(A)(2010); (16) Oklahoma—Okla. Stat. tit. 79,§ 205A (2010); (17) Oregon—Or. Rev. Stat.§ 646.775(1)(a) (2010); (18) Rhode Island—

R.I. Gen. Laws § 6-36-12(g) (2010); (19)South Dakota—S.D. Codified Laws § 37-1-33 (2010); (20) Utah—Utah Code Ann.§ 76-10-916(3) (2010); (21) Vermont—Vt.Stat. Ann. tit. 9, § 2458(b)(2) (2010); (22)Virginia—Va. Code Ann. § 59.1-9.15(d)(2010); and (23) West Virginia—W. Va.Code § 47-18-17(a) (2010).82 See, e.g., Minnesota ex rel. Humphrey v.RI-MEL Inc., 417 N.W.2d 102, 112 (Minn.Ct. App. 1987) (holding that the State ofMinnesota is authorized, despite theabsence of a parens patriae statute, tobring a parens patriae action under statelaw ‘‘for the protection of public rights’’).83 La. Const. Art. IV, § 8 (2010); see, e.g.,State v. Classic Soft Trim, Inc., 663 So. 2d835 (La. Ct. App. 1995); State v. BrunswickBowling & Billiards Dover, Inc., 665 S. 2d520 (La. Ct. App. 1995); State v. Bordens,Inc., 684 So. 2d 1024 (La. Ct. App. 1995).84 FTC v. Mylan Labs., 99 F. Supp. 2d 1, 7,(D.D.C. 1999). See also ANTITRUST PRACTICE

AND STATUTES, Maine, at 22–23.85 See 15 U.S.C. § 15b (2010) (‘‘[a]ny actionto enforce any cause of action under

section 4, 4A or 4C shall be foreverbarred unless commenced within fouryears after the cause of action accrued.’’).86 14 Me. Rev. Stat. Ann. § 752 (2009).87 See ANTITRUST PRACTICE AND STATUTES,Maine, at 22-19 (citing Jenness v. Nick-erson, 637 A.2d 1152, 1158 (Me. 1994);State v. Crommett, 116 A.2d 614, 616–17(Me. 1955)).88 Conn. Gen. Stat. § 35–40 (2010) providesthat ‘‘[a]ny action under sections 35-34 and35–35, shall be forever barred unlesscommenced within four years after thecause of action shall have accrued.’’89 Conn. Gen. Stat. § 35-32 (2010) permitsthe Attorney General to bring suchactions, and it is not specificallymentioned in the statute’s four-yearlimitations provision. See Conn. Gen.Stat. § 35–40 (2010).90 See STATE ANTITRUST PRACTICE AND

STATUTES, Connecticut, at 8–27 (citingState v. Mobilia, Inc., 1983-1 Trade Cas.(CCH) } 65,413 (Conn. Super. Ct. 1983).)91 Support for this argument appears inState v. Levi Strauss & Co., 471 F. Supp.363, 371 & n. 7 (D. Conn. 1979), whichheld on a motion to remand that theState’s parens patriae authority does not‘‘change the nature’’ of a suit brought onbehalf of a specific group of individuals,and that, therefore, each individual mustindependently meet the citizenship andamount in controversy requirements forfederal diversity jurisdiction.92 15 U.S.C. § 15c(a)(1) (2010).93 Conn. Gen. Stat. § 35-32(c) (2010).94 Conn. Gen. Stat. § 35-25(b) (2010).95 See Conn. Gen. Stat. § 35-32(c)(2) (2010)(‘‘[t]he Attorney General may also, in enfor-cing the provisions of this chapter, bring anaction in the name of the state as . . . parenspatriae with respect to damages to thegeneral economy of the state or any poli-

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tical subdivision thereof. . . .’’); Nev. Rev.Stat. § 598A.160(1)(b) (2010) (‘‘[t]heAttorney General may bring a civil actionfor any violation of the provisions ofthis chapter in the name of the Stateof Nevada and is entitled to recoverdamages . . . [a]s parens patriae, withrespect to direct or indirect damages tothe general economy of the State ofNevada or any political subdivision.’’); Va.Code Ann. § 59.1–9.15(d) (2010) (‘‘[t]heAttorney General may bring a civil actionto recover damages and secure other reliefas provided by this chapter as parens

patriae respecting injury to the generaleconomy of the Commonwealth.’’).96 See Hawaii v. Standard Oil Co., 405 U.S.251 (1972).97 See State v. Marsh & McLennan Cos.,944 A.2d 315, 318 (Conn. 2008).98 Id.99 Id. at 325.100 Id. at 328.101 Id. at 326.102 2002 Article at 88.

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Appendix One: State Action Immunity Chart

State Statutory Exemption Case Law

AL Ala. Code § 11-92A-12(19) (2010) (author-izing an industrial development authorityto exercise its granted powers even if ‘‘as aconsequence of the exercise of such powersit engages in activities that may be deemed‘anticompetitive’ within the contemplationof the antitrust laws of the state or of theUnited States’’).

Mobile County Water, Sewer & Fire Prot. Auth., Inc. v.Mobile Area Water & Sewer Sys., Inc., 567 F. Supp.2d 1342, 1358-59 (S.D. Ala. 2008) (holding thatAlabama law mirrors federal law with respect tostate action immunity).

AK Alaska Stat. § 45.50.572(g) (2010) (stating thatthe Alaska Restraint of Trade Act does ‘‘notforbid activities expressly required by aregulatory agency of the state’’ or ‘‘permittedby a regulatory agency of the state. . .if theregulatory agency has given dueconsideration to the possible anticompetitiveeffects before permitting the activities, andenforcement of the [Act] would bedisruptive of the regulatory scheme’’).

Chugach Elec. Ass’n v. Regulatory Comm’n of Alaska,49 P.3d 246, 252 (Alaska 2002) (applying thefederal state action immunity test, as articulated inMidcal, to a state law claim).

AZ The Arizona Uniform State Antitrust Actdoes not contain a statutory exemption forstate action.

In re Bates, 555 P.2d 640, 642-43 (Ariz. 1976) (citingParker with approval in the context of a federal andstate antitrust claim), aff’d in part, rev’d in part, 433U.S. 350 (1977); Mothershed v. Justices of the SupremeCourt,410F.3d602,609-10(9thCir.2005)(predictingthat ‘‘the ArizonaSupreme Courtwouldmost likelyfollow Bates’’ and apply the federal state actionimmunity doctrine to a state antitrust claim). But seeDelaney v. City of Phoenix, 1985-2 Trade Cas. (CCH)} 66,711 (Ariz. Super. Ct. 1985) (stating that Parkerimmunity is inapposite to a state antitrust claim butneverthelessfindingamunicipalityexemptbecausethe municipality’s conduct was specificallyauthorized by a state statute).

AR Arkansas antitrust statutes do not contain astatutory exemption for state action.

Gipson v. Morley, 233 S.W.2d 79, 83 (Ark. 1950)(holding that a taxpayer cannot enjoin the statefrom enforcing a state act that fixes the price ofalcohol because ‘‘it is within the competency of thelegislature to determine under the police powerwhat regulatory rules are needful in controlling atype of business fraught with perils to publicpeace, health and safety as is the liquor business’’);

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CA Cal. Bus. & Prof. Code § 16702 (2009)(defining the term ‘‘person’’ or ‘‘persons,’’as used in the Cartwright Act, to include‘‘corporations, firms, partnerships andassociations,’’ thereby exempting statesand municipalities from the provisions ofthe Act).

Freitas v. City of San Francisco, 92 Cal. App. 3d. 913,921 (Cal. Ct. App. 1979) (holding that cities andpolitical subdivisions of the state are not ‘‘persons’’who can be sued under the Cartwright Act); Penn v.City of San Diego, 188 Cal. App. 3d 636, 643 (Cal. Ct.App. 1987) (confirming the holding in Freitas).

CO Colo. Rev. Stat. § 6-4-108(4) (2010)(providing that ‘‘[a]ny person, activity, orconduct exempt or immune under the lawsof this state or exempt or immune from theprovisions of the federal antitrust laws shallbe exempt or immune from the provisionsof [the Colorado Antitrust Act] withoutregard to any monetary threshold imposedby federal law); Colo. Rev. Stat. § 6-4-114(3)(2010) (stating that ‘‘[n]o damages, costs,expert fees, costs of investigation, civilpenalties, or attorney fees may be recoveredfrom a governmental or public entity, orfrom any official, agent, or employee thereofacting in an official capacity, or from anyperson based on any official action directedby such governmental or public entity’’).

City of Colorado Springs v. Mountain View Elec.Ass’n, 925 P.2d 1378, 1387 (Colo. Ct. App. 1995)(stating that ‘‘federal case law on the subject’’ ofstate action immunity ‘‘is applicable to determinethe scope of immunity available under Coloradolaw’’).

CT Conn. Gen. Stat. § 35-31(b) (2010)(exempting activity that is ‘‘specificallydirected or required by a statute of thisstate, or of the United States’’).

Mazzola v. S. New England Tel. Co., 363 A.2d 170, 178(Conn. 1975) (stating that § 35-31(b) ‘‘represents anarrowly drawn version of the doctrine of ‘stateaction’ immunity from antitrust liability articulatedby the United States Supreme Court in Parker v.Brown’’); Miller’s Pond Co. v. City of New London, 873A.2d 965, 979 (Conn. 2005) (holding that Connecti-cut’s harmonization statute, Conn. Gen. Stat.§ 35-44(b), ‘‘does not require’’ state courts to ‘‘incor-porate the federal case law defining state actionimmunity into [the] construction of § 35-31(b)’’).

DE Del. Code Ann. tit. 6, § 2104(b) (2010)(excluding from antitrust liability any‘‘conduct or arrangement required by anystatute of this State or of the United States’’ or‘‘approved or required by a regulatory bodyor officer acting under statutory authority ofthis State or of the United States’’).

There are no reported decisions that construe orapply this exemption.


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DC D.C. Code Ann. § 28-4518 (2010)(exempting ‘‘conduct or activity specificallyregulated, permitted, or required by anyregulatory body, agency, or commissionacting under statutory authority of theDistrict of Columbia or the United States’’).


FL Fla. Stat. Ann. § 542.20 (2010) (stating thatthe Florida Antitrust Act immunizes ‘‘[a]nyactivity or conduct exempt under Floridastatutory or common law or exempt fromthe provisions of the antitrust laws of theUnited States’’).

Duck Tours Seafari, Inc. v. City of Key West, 875 So. 2d650, 653 (Fla. Dist. Ct. App. 2004) (confirming that‘‘the doctrine of state action immunity which hasdeveloped under federal antitrust law is also anavailable defense to a suit against a municipality fora violation of Florida’s antitrust laws’’ and applyingthe federal state action immunity test); SebringUtilities Comm’n v. Home Savings Ass’n, 508 So. 2d26, 28 (Fla. Dist. Ct. App. 1987) (stating that ‘‘theFlorida Antitrust Act provides any activity orconduct exempt under federal antitrust law is alsoexempt from the Florida Antitrust Act’’).

GA Ga. Code Ann. §§ 36-65-1, 2 (2010)(providing that ‘‘in the exercise of powersspecifically granted to them by law, localgoverning authorities of cities and countiesare acting pursuant to state policy’’ and thatin exercising such powers, ‘‘local governingauthorities shall be immune from antitrustliability to the same degree and extent asenjoyed by the State of Georgia’’).

Strykr v. Long County Bd. of Comm’rs, 593 S.E.2d348, 349 (Ga. 2004) (citing Town of Hallie in supportof holding a county immune under state andfederal antitrust laws); Executive Town & CountryServs. v. Young, 376 S.E.2d 190, 192 (Ga. 1989)(stating that, ‘‘[b]y the provisions of [Ga. CodeAnn. §§ 36-65-1, 2],’’ a ‘‘city is made specificallyimmune from antitrust liability’’).

HI The Hawaii Antitrust Act does not contain astatutory exemption for state action.

Big Island Small Ranchers Ass’n v. State, 588 P.2d430, 436 (Haw. 1978) (holding that Hawaii anti-trust statutes do not apply to the state of Hawaiiunder the theory of sovereign immunity); Daly v.Harris, 215 F. Supp. 2d 1098, 1125 (D. Haw. 2002)(holding that municipalities are not immune fromHawaii antitrust statutes but cannot be subject tothe treble damages provision).

ID Idaho Code § 48-107(1) (2010) (the IdahoCompetition Act does not apply to ‘‘(a)Activities that are exempt from the opera-tion of the federal antitrust laws’’; ‘‘(b)Activities required or affirmativelyapproved by any statute of this state or ofthe United States or by a regulatory agency

Plummer v. City of Fruitland, 87 P.3d 297, 301 (Idaho2004) (holding that when a city is ‘‘properly exer-cising its police power. . .it is accordingly affordedthe statutory exemption from the Idaho Competi-tion Act because such an exercise of police poweris authorized by the state constitution’’); Alpert v.Boise Water Corp., 795 P.2d 298, 303-04 (Idaho 1990)(citing Town of Hallie in support of upholding


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of this state or of the United States dulyacting under any constitutional or statutoryauthority vesting the agency with suchpower’’; or ‘‘(c) Activities of a municipalityor its officers or employees acting in anofficial capacity, to the extent that thoseactivities are authorized or directed by statelaw’’).

dismissal of state antitrust claims against a muni-cipality); Denman v. Idaho Falls, 4 P.2d 361, 362-63(Idaho 1931) (holding that state antitrust laws areinapplicable to valid exercises of a municipality’spower).

IL 740 Ill. Comp. Stat. 10/5(15) (2010) (the Illi-nois Antitrust Act does not apply to ‘‘theactivities of a unit of local government orschool district and the activities of theemployees, agents and officers of a unit oflocal government or school district’’).

Du Page Aviation Corp. v. Du Page Airport Auth., 594N.E.2d 1334, 1338-1340 (Ill. App. Ct. 1992)(holding that a municipal authority was immunefrom state antitrust claims under both 740 Ill.Comp. Stat. 10/5 and the federal state actionimmunity doctrine); Lathrop v. Juneau & Assocs.,Inc., 220 F.R.D. 330, 336 (S.D. Ill. 2004) (stating thatthe ‘‘Illinois legislature has explicitly provided thatmunicipalities may act in anticompetitive waysthat do not comply with federal anti-trust laws’’).

IN The Indiana Antitrust Act does not containa statutory exemption for state action.

Brownsburg Cmty. Sch. Corp. v. Natare Corp., 824N.E.2d 336, 348 (Ind. 2005) (rejecting ‘‘the federalstate action immunity doctrine under state anti-trust law’’ and stating that ‘‘federal precedent is[not] appropriate in considering whether govern-mental immunity is available to municipal andlocal government units under state antitrustlaws’’).

IA Iowa Code § 553.6(4), (5) (2010) (the IowaCompetition Law does not apply to ‘‘activ-ities or arrangements expressly approvedor regulated by any regulatory body orofficer acting under authority of this state orof the United States’’ or ‘‘activities of a cityor county, or an administrative or legalentity created by a city or county, whenacting within its statutory or constitutionalhome rule powers and to the same extentthat the activities would not be prohibited ifundertaken by the state.’’).

Fed. Land Bank of Omaha v. Tiffany, 529 N.W.2d 294,296-297 (Iowa 1995) (interpreting § 553.6(4)’sexemption to apply because federal state actionimmunity applies and § 553.2 of the Iowa Codeprescribes a ‘‘uniform application of the state andfederal laws prohibiting restraints of economicactivity and monopolistic practices’’).


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KS Kan. Stat. Ann. § 12-205(b) (2009)(exempting, from civil liability, conduct of‘‘municipalities and the officers andemployees thereof. . .except for injunctiverelief under the antitrust laws of the state ofKansas’’ and except as provided by Kan. Stat.Ann. § 12-205(d) (2009), which states that‘‘[n]othing contained in this section shallpreclude the attorney general or any countyor district attorney from bringing an actionagainst a municipality for a violation of theantitrust laws or any other laws of the state’’).

Classic Communications v. Rural Tel. Serv. Co., 956 F.Supp. 910, 919 (D. Kan. 1997) (stating that ‘‘Parkerimmunity is not applicable to state [antitrustclaims] because’’ where ‘‘federal antitrust laws arenot implicated, the purpose behind state actionimmunity disappears’’).

KY Ky. Rev. Stat. Ann. § 367.176(2) (2010)(providing that Kentucky’s analogue to §§ 1and 2 of the Sherman Act, Ky. Rev. Stat.Ann. § 367.175, ‘‘shall not apply to activitiesauthorized or approved under any federalor state statute or regulation’’).


LA Louisiana antitrust statutes do not contain astatutory exemption for state action.

Reppond v. City of Denham Springs, 572 So. 2d 224,229-30 (La. Ct. App. 1990) (applying the federalstate action immunity standard in decidingwhether a municipality is immune under the stateantitrust laws); Ehlinger & Assocs. v. LouisianaArchitects Ass’n, 989 F. Supp. 775, 785-86 (E.D. La.1998) (stating that ‘‘[i]t would indeed be anoma-lous to hold that state legislation that clearlyarticulated a policy to supplant competition withregulation intended that persons acting pursuantto that policy would be liable under the stateantitrust laws’’ and finding the defendantsimmune from state antitrust laws based on federalprecedent), aff’d, 167 F.3d 537 (5th Cir. 1998).

ME 10 Me. Rev. Stat. Ann. § 1104(4), (5) (2009)(stating that ‘‘[n]o damages, interest ondamages, costs or attorneys fees may berecovered [for antitrust violations] from anypolitical subdivision,. . .or official oremployee of a political subdivision acting inan official capacity’’ or ‘‘in any claim againsta person based on any official actiondirected by a political subdivision,. . .orofficial or employee of a political subdivi-sion acting in an official capacity’’).

Tri-State Rubbish, Inc. v. Town of Gray, 803 F. Supp.451, 455-461 (D. Me. 1992) (applying the federalstate action immunity doctrine in the context offederal and state antitrust claims).


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MD Md. Code Ann., Com. Law § 11-203(12)(2010) (exempting ‘‘the activity of. . .[a]political subdivision of the State infurnishing services or commodities’’).

ANA Towing, Inc. v. Prince Georges County, 552A.2d 1295, 1297-98 & n.2 (Md. 1989) (stating, in afootnote, that the Parker doctrine is not applicablein assessing claims under the Maryland AntitrustAct).

MA Mass. Gen. Laws Ann. Ch. 93, § 7 (2010)(excluding from the Massachusetts Anti-trust Act ‘‘(a) Any activities which areexempt from any of the federal antitrustlaws or the Federal Trade Commission Actother than by reason of the absence of asufficient involvement of or impact uponinterstate commerce; (b) Any activitieswhich are subject to regulation or supervi-sion by state or federal agencies; or (c) Anyactivities authorized or approved underfederal, state, or local law’’).

Commonwealth v. Mass. CRINC, 466 N.E.2d 792, 799(Mass. 1984) (stating that, ‘‘[b]ecause the [Massa-chusetts Antitrust Act] states that Federal case lawmust guide the interpretation of the State act, []and since Massachusetts courts have not hadoccasion to analyze this act, a review of Federallaw on the exemption issue is helpful in analysis ofState law’’); Monsanto Co. v. Dep’t of Pub. Utils., 586N.E.2d 982, 984 & n.4 (Mass. 1992) (relying onParker and its progeny to assess state actionimmunity from both federal and state antitrustclaims and holding that the plaintiff’s ‘‘claimunder the State antitrust law certainly must fail if[the plaintiff’s] Federal antitrust claim is fore-closed by the State action doctrine’’); InterfaceGroup v. Mass. Port Auth., 631 F. Supp. 483, 496 (D.Mass. 1986) (dismissing the plaintiff’s state anti-trust claims because the federal state actiondoctrine immunizes the defendant’s conduct fromfederal antitrust laws), aff’d in part, 816 F.2d 9 (1stCir. 1987).

MI Mich. Comp. Laws Ann. § 445.774(3) (2010)(providing that ‘‘[t]his act shall not beconstrued to prohibit, invalidate, or makeunlawful any act or conduct of any unit ofgovernment, when the unit of governmentis acting in a subject matter area in which itis authorized by law to act’’); Mich. Comp.Laws Ann. § 445.774(4) (2010) (declaringthat the ‘‘act shall not apply to a transactionor conduct specifically authorized underthe laws of this state or the United States, orspecifically authorized under laws, rules,regulations, or orders administered,promulgated, or issued by a regulatoryagency, board, or officer acting under stat-utory authority of this state or the UnitedStates’’).

Bio-Magnetic Resonance, Inc. v. Dep’t of Pub. Health,593 N.W.2d 641, 645 (Mich. Ct. App. 1999) (inter-preting § 445.774(3) broadly to exemptgovernmental activity even if it is an ultra viresact); BPS Clinical Labs. v. Blue Cross & Blue Shield,552 N.W.2d 919, 925 (Mich. App. Ct. 1996)(holding that a private-party defendant wasexempt from state antitrust laws, under§ 445.774(4), because the state authorized thedefendant’s actions).


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MN Minn. Stat. § 325D.55(2)(a) (2009) (excluding‘‘actions or arrangements otherwisepermitted, or regulated by any regulatorybody or officer acting under statutoryauthority of the State or the United States’’).

Minnesota-Iowa Television Co. v. Watonwan Televi-sion Improvement Ass’n, 294 N.W.2d 297, 305-06(Minn. 1980) (stating that § 325D.55(2)(a) ‘‘shouldbe narrowly construed’’ to effectuate the purposeof antitrust laws; finding that there is ‘‘nothing inthe regulation of the television industry. . .whichexempts the industry as a whole from the antitrustlaws’’; and holding that, to be exempt under the‘‘otherwise permitted’’ clause, the conduct must beeither ‘‘required or specifically permitted by thegovernment’’).

MS Mississippi antitrust statutes do not containa statutory exemption for state action.

B.T. Johnson Publ’g Co. v. Mills, 31 So. 101, 102(Miss. 1901) (holding that Mississippi’s ‘‘anti-trustlaws do not apply to the state, or any of its statu-tory agencies. . .’’); Martin v. Mem’l Hosp., 130 F.3d1143, 1151 (5th Cir. 1997) (denying state antitrustclaims against hospital that complied with specificstate regulatory regime, and stating that ‘‘[i]twould be counter-intuitive to allow liability underone state law for doing the very thing that thisCourt has held to be within the contemplation ofanother law of the same state.’’).

MO Mo. Rev. Stat. § 416.041.2 (2010) (stating that‘‘[n]othing contained in the Missouri anti-trust law shall be construed to apply toactivities or arrangements expresslyapproved or regulated by any regulatorybody or officer acting under statutoryauthority of this state or of the UnitedStates’’).

Fischer, Spuhl, Herzwurm & Assocs. v. Forrest T.Jones & Co., 586 S.W.2d 310, 314 (Mo. 1979)(holding that ‘‘[t]he exemption in § 416.041.2represents a codification of the ‘state action’doctrine of federal antitrust law, first enunciatedby the United States Supreme Court in Parker’’).

MT Mont. Code. Ann. § 50-4-601 (2010)(granting health care facilities and certainphysicians ‘‘state action immunity foractions that might otherwise be consideredto be in violation of state or federal, or both,antitrust laws’’); Mont. Code. Ann. § 30-14-105(1) (2010) (exempting ‘‘actions or trans-actions permitted under laws administeredby the Montana public service commissionor the state auditor’’).

Mont. Vending Co. v. Coca-Cola Bottling, Inc., 78P.3d 499, 504-05 (Mont. 2003) (holding thatMontana’s antitrust laws were ‘‘created to apply tobusinesses, not government’’) (emphasis inoriginal); Wiser v. State, 129 P.3d 133, 141 (Mont.2006) (concluding that the State Board of Dentis-try’s ‘‘regulatory function’’ cannot constitute anunlawful restraint of trade under state law).


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NE Both the Junkin Act and the ConsumerProtection Act contain analogues to theSherman Act, and both statutes contain alimited statutory exemption for state actionimmunity. See Neb. Rev. Stat. § 59-830(2010) (providing that ‘‘[n]o criminal actionmay be maintained under [the Junkin Act]against any person, corporation, organiza-tion, limited liability company, orassociation for acting pursuant to andunder the authority of any state or federallaw’’); see also Neb. Rev. Stat. § 59-1617(2010) (exempting certain categories of stateregulated conduct from civil liability underthe Consumer Protection Act).

Kuntzelman v. Avco Fin. Servs, Inc., 291 N.W.2d 705,707-08 (Neb. 1980) (stating that ‘‘[c]onduct is notimmunized [under the Consumer Protection Act]merely because the person so acting falls withinthe jurisdiction of a regulatory body,’’ but none-theless exempting the defendant because ‘‘theactions involved are regulated by a body or officeracting under statutory authority of this state or theUnited States’’) (internal quotations omitted).

There are no reported decisions that construe orapply the Junkin Act exemption.

NV Nev. Rev. Stat. § 598A.040(3) (2010) (statingthat the ‘‘provisions of this chapter do notapply to. . .[c]onduct which is expresslyauthorized, regulated or approved by: (a) Astatute of this state or of the United States;(b) An ordinance of any city or county ofthis state, except for ordinances relating tovideo service providers; or (c) An adminis-trative agency of this state or of the UnitedStates or of a city or county of this state,having jurisdiction of the subject matter’’).


NH N.H. Rev. Stat. Ann § 356:8-a (2010)(providing that ‘‘[a]ctivities of andarrangements between persons shall beexempt from [New Hampshire’s antitruststatute] if such are permitted, authorized,approved, required, or regulated by aregulatory body acting under a federal orstate statutory scheme or otherwise activelysupervised by a regulatory agency’’).

Ben’s Auto Body, Inc. v. Teitelbaum, No. 08-cv-207-SM, 2008 U.S. Dist. LEXIS 101398, at *15 (D.N.H.Dec. 15, 2008) (holding that state antitrust claimsagainst insurance appraisers failed to state a viableclaim because ‘‘the defendants and theiremployer. . . are supervised and regulated by theNew Hampshire Insurance Commissioner,’’ and‘‘the statute governing insurance practices in NewHampshire specifically contemplates that insur-ance companies may engage in the very conductof which plaintiff complains’’).

NJ N.J. Stat. Ann. § 56:9-5(c) (2010) (providingthat the New Jersey Antitrust Act ‘‘shall notapply to any activity directed, authorized orpermitted by any law of this State that is inconflict or inconsistent with the provisionsof this act’’).

Fanelli v. City of Trenton, 641 A.2d 541, 547-49 (N.J.1994) (rejecting the plaintiff’s state antitrust claimsagainst a municipality because the municipalordinance in question was authorized by a statestatute); Bally Mfg. Corp. v. N.J. Casino ControlComm’n, 426 A.2d 1000, 1003 (N.J. 1981)


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(holding that the defendant was exempt from stateantitrust laws, under § 56:9-5(c), because the‘‘regulation in question is authorized andpermitted by the Casino Control Act’’).

NM N.M. Stat. Ann. § 57-1-16 (2010) (stating that‘‘[n]othing contained in the AntitrustAct. . .is intended to prohibit actions whichare: A. clearly and expressly authorized byany state agency or regulatory body actingunder a clearly articulated and affirmativelyexpressed state policy to displace competi-tion with regulation; and B. activelysupervised by the state agency or regulatorybody which is constitutionally or statutorilygranted the authority to supervise suchactions when the agency or regulatory bodydoes not have any proprietary interest in theactions’’); N.M. Stat. Ann. § 57-1-17 (2010)(providing that ‘‘no damages or interest ondamages may be recovered under the Anti-trust Act. . .in any claim against a personbased on any official action directed by alocal government or official or employeethereof acting in an official capacity;provided, however, that in an action forpermanent injunction brought against aperson based on any official action directedby a local government or official oremployee thereof acting in an official capa-city, costs and reasonable attorneys’ feesmay be granted to the prevailing party’’).

Valdez v. State, 54 P.3d 71, 75-76 (N.M. 2002)(holding that a municipality, a county and private-party defendants could not be liable under theNew Mexico Antitrust Act and Unfair PracticesAct because the alleged anti-competitive conductwas ‘‘under the primary jurisdiction of. . .a regu-latory agency’’ and ‘‘expressly permitted’’ by statestatute’’); In re Elec. Serv., 697 P.2d 948, 951 (N.M.1985) (stating that ‘‘the New Mexico Antitrust Actspecifically exempts from the Act arrangementsthat are approved by a regulatory body actingunder statutory authority’’). But see City of SunlandPark v. Macias, 75 P.3d 816, 823-24 (N.M. Ct. App.2003) (stating that the ‘‘rationale underlying thestate action immunity doctrine does not apply tocauses of action brought pursuant to the NewMexico Antitrust Act’’ and holding, withoutreference to § 57-1-16, that the ‘‘state actionimmunity doctrine is inapplicable’’ to the NewMexico Antitrust Act).

NY The Donnelly Act does not contain a statu-tory exemption for state action.

Prof’l Ambulance Serv., Inc. v. Abramowitz, 328N.Y.S.2d 467, 470 (N.Y. Sup. Ct. 1972) (holdingthat it is a violation of the Donnelly Act for amunicipal police department to preclude acompany from servicing emergency calls;declaring that a ‘‘municipality acting in aproprietary capacity cannot under the guise ofexercising its police power create a monopoly’’ butstating that ‘‘a monopoly or agreement in restraintof trade may, upon occasion, be warranted in theexercise of police power’’ so long as ‘‘the privilegegranted’’ is ‘‘reasonable, necessary and


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appropriate for the protection of public health,’’bears ‘‘a real substantial relation to the object to beachieved’’ and does ‘‘not violate fundamental lawor interfere with enjoyment of fundamental rightsbeyond necessities of the case’’) (italics in original);American Consumer Indus. v. City of New York, 281N.Y.S.2d 467, 474 (N.Y. App. Div. 1967) (declaringan agreement between New York City and acompany void because the City did not show ‘‘thatthe purpose of the market is furthered or intendedto be furthered by this regulation’’ and‘‘[i]ncreasing its revenue does not warrant the cityto establish an otherwise illegal monopoly’’).

NC North Carolina antitrust statutes do notcontain a statutory exemption for stateaction.

Madison Cablevision, Inc. v. City of Morganton, 386S.E.2d 200, 212-13 (N.C. 1989) (applying thefederal state action immunity doctrine to a statelaw claim and holding that municipal ownershipand operation of cable television systems does notviolate North Carolina’s antitrust laws because,‘‘[w]here the legislature has authorized a city toact, it is free to carry out that act without fear that itwill later be held liable under state antitrust lawsfor doing the very act contemplated and author-ized by the legislature’’); State ex rel. Utils. Comm’n.v. North Carolina Textile Mfrs. Ass’n, Inc. 328 S.E.2d264, 271 (N.C. 1985) (holding that ‘‘the rates ofpublic utilities under the jurisdiction of the Utili-ties Commission are not subject to attack on thebasis that they violate the antitrust laws’’) (citingParker).

ND N.D. Cent. Code § 40-01-22 (2010)(providing that ‘‘[a]ll immunity of the statefrom the provisions of the Sherman Anti-trust Act is hereby extended to any city orcity governing body acting within the scopeof the[ir] grants of authority’’).


OH Ohio Rev. Code Ann. § 1331.01 (2010)(defining person to include ‘‘corporations,partnerships, and associations,’’ therebyexempting states and municipalities fromthe provisions of the Act).

Thaxton v. Medina City Bd. of Educ., 488 N.E.2d 136,138 (Ohio 1986) (holding that a public board ofeducation is not a ‘‘person,’’ and cannot be liableunder the Valentine Act ‘‘when the board operateswithin its clear legal authority’’); Stow v. SummitCounty, 590 N.E.2d 1363, 1364 (Ohio Ct. App. 1990)(holding that a county and a city are not ‘‘persons’’


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within the meaning of the Valentine Act); Bd. ofCounty Comm’rs of Wood County v. Toledo, No.92WD086, 1993 Ohio App. LEXIS 4478, at *16-17(Ohio. Ct. App. Sept 24, 1993) (holding that amunicipal utility is constitutionally exempt fromthe Valentine Act ‘‘[s]ince a municipality’sauthority to operate a public utility is constitu-tionally derived and the legislature is withoutauthority to enact statutes to limit its operation’’).

OK Okla. Stat. tit. 79, § 202(3) (2010) (defining‘‘person’’ so that it ‘‘does not include theState of Oklahoma, its departments, and itsadministrative agencies, except the GrandRiver Dam Authority and the OklahomaMunicipal Power Authority to the extentthat their goods or services are not regu-lated by the Oklahoma CorporationCommission’’).

Fine Airport Parking, Inc. v. City of Tulsa, 71 P.3d 5,11 (Okla. 2003) (rejecting the incorporation of thefederal state action immunity doctrine into statelaw because ‘‘[t]he principles of federalismsupporting the Parker doctrine are meaningless inan analysis of municipal liability under the Okla-homa Antitrust Reform Act’’ but neverthelessholding that a city’s operation of an airportparking facility was not subject to state antitrustlaws because the state legislature intended the cityto operate the facility ‘‘as the arm of the state forthe public good’’).

OR Or. Rev. Stat. § 646.740(6) (2010) (exempting‘‘activity specifically authorized under statelaw or local ordinance’’).

Pre-Hospital Med. Servs. v. Malheur County, 896 P.2d585, 592 (Or. 1995) (exempting a county from stateantitrust liability for its ambulance service area planbecause the plan ‘‘conforms to both state and locallegislative directives’’ and a state statute ‘‘implicitlyallows the assignment of a county’s ambulanceservice to only one ambulance provider’’).

PA Pennsylvania, which has not enacted ageneral antitrust statute, does has not havea statutory exemption from antitrust liabi-lity for state action.

There are no reported decisions that construe orapply the Parker immunity doctrine in the contextof a state antitrust claim.

RI R.I. Gen. Laws § 6-36-8 (2010) (stating that‘‘[a]ny activity or activities exempt from theprovisions of the antitrust laws of theUnited States shall be similarly exemptfrom the provisions of this chapter’’ andthat ‘‘[n]othing contained in this chaptershall be construed to apply to activities orarrangements approved by any regulatorybody or officer acting under statutoryauthority of this state or of the UnitedStates’’).

Riley v. R.I. Dep’t of Envtl. Mgmt., No. PC 04-0987,2005 R.I. Super. LEXIS 62, at *34-35 (R.I. Super. Ct.Apr. 27, 2005) (recognizing that the state actionexemption should be ‘‘liberally construed inharmony with federal statutes and ruling judicialinterpretations of the United States courts’’ andimmunizing the defendant because it ‘‘is a regu-latory agency that exists by legislative grant ofpower, and, as such, its [regulatory] actions. . .arepresumed valid and exempt from attack underantitrust law’’) (internal quotations omitted).


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SC South Carolina regulates anticompetitiveconduct both under its general antitruststatute, S.C. Code Ann. § 39-3-10 et seq., andunder the South Carolina Unfair TradePractices Act. Only the South CarolinaUnfair Trade Practices Act contains a stat-utory exemption for state action. See S.C.Code Ann. § 39-5-40(a) (2009) (exemptingfrom the South Carolina Unfair TradePractices Act any ‘‘[a]ctions or transactionspermitted under laws administered by anyregulatory body or officer acting understatutory authority of this State or theUnited States or actions or transactionspermitted by any other South Carolina Statelaw’’).

Ward v. Dick Dyer & Assocs., 403 S.E.2d 310,311-12 & n.1 (S.C. 1991) (holding that § 39-5-40(a)exempts ‘‘those actions or transactions which areallowed or authorized by regulatory agencies orother statutes’’ but does not immunize conductsimply because it is ‘‘subject to regulatory control’’;noting in a footnote that securities transactions areexempt from claims under UTPA); InMed Diag-nostic Servs., L.L.C. v. MedQuest Assocs., 594 S.E.2d552, 556 (S.C. Ct. App. 2004) (holding that theregulatory exemption of § 39-5-40 applies to thedefendant’s conduct because the conduct involves‘‘a process for which [a regulatory agency] hasformulated exacting procedural requirements’’and ‘‘[w]hether or not [the defendant] followedthese procedures correctly is uniquely within thecompetency of [the regulatory agency]’’).

SD South Dakota antitrust statutes do notcontain a statutory exemption for stateaction.

Byre v. City of Chamberlain, 362 N.W.2d 69, 74-75(S.D. 1985) (applying the Parker doctrine to a stateantitrust claim and holding that a city that mono-polizes garbage collection is immune from stateantitrust liability if the city’s conduct ‘‘furthers orimplements clearly articulated and affirmativelyexpressed state policy’’).

TN Tenn. Code Ann. § 7-51-1004 (2010)(providing that any municipality or othergovernmental entity is immune from anti-trust liability when regulating passengertransportation services); Tenn. Code Ann.§ 7-54-107 (2010) (exempting from stateantitrust laws all ‘‘contracts for theconstruction, operation or maintenance ofan energy production facility’’).

McDonald v. Metro. Gov’t for Nashville, No. 3:87-0320, 1987 U.S. Dist. LEXIS 14426, at *6 & n.7 (M.D.Tenn. Oct. 6, 1987) (applying Tenn. Code Ann. § 7-51-1004 to exempt a city, county and licensingboard from liability under both federal and statelaw for requiring a certificate of public conveni-ence and necessity to operate a taxi cab company).

TX Tex. Bus. & Com. Code Ann. § 15.05(g)(2010) (exempting ‘‘actions required oraffirmatively approved by any statute ofthis state or of the United States or by aregulatory agency of this state or of theUnited States duly acting under anyconstitutional or statutory authority vestingthe agency with such power’’ and statingthat ‘‘[n]othing in this section shall beconstrued to prohibit activities that are

Concho Residential Servs., Inc. v. MHMR Servs., NO.03-98-00022-CV, 1999 Tex. App. LEXIS 6356, at*8-9 (Tex. Ct. App. Aug. 26, 1999) (concluding thatthe Court is ‘‘bound to apply the Parker state actionexemption to the Texas Act’’) (citing the Texasharmonization provision, Tex. Bus. & Com. CodeAnn. § 15.04).


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exempt from the operation of the federalantitrust laws. . .except that an exemptionotherwise available under the McCarran-Ferguson Act. . .does not serve to exemptactivities under this Act’’).

UT Utah Code Ann. § 76-10-915(1)(f) (2010)(exempting ‘‘the activities of a politicalsubdivision to the extent authorized ordirected by state law, consistent with thestate action doctrine of federal antitrustlaw’’).

Summit Water Dist’ Co. v. Summit Cty., 123 P.3d 437,448 (Utah 2005) (employing federal state actionimmunity jurisprudence to interpret § 76-10-915(1)(f) and holding that a county’s conduct wasnot exempt from the Utah Antitrust Act becausethe conduct was not ‘‘a foreseeable result of a state’sgrant of authority’’) (internal quotations omitted).

VT Vermont, which has not enacted a generalantitrust statute, does has not have a statu-tory exemption from antitrust liability forstate action.

There are no reported decisions that construe orapply the Parker immunity doctrine in the contextof a state antitrust claim.

VA Va. Code Ann. § 59.1-9.4(b) (2010) (statingthat ‘‘[n]othing contained in [the VirginiaAntitrust Act] shall make unlawful conductthat is authorized, regulated or approved(1) by a statute of this Commonwealth, or(2) by an administrative or constitutionallyestablished agency of this Commonwealthor of the United States having jurisdiction ofthe subject matter and having authority toconsider the anticompetitive effect, if any,of such conduct. Nothing in this paragraphshall be construed to alter or terminate anyother applicable limitation, exemption orexclusion’’).

Fairfax County Water Auth. v. City of Falls Church, 78Va. Cir. 177, 180 (Va. Cir. Ct. 2009) (holding that‘‘the Virginia Supreme Court has never appliedthe [federal state action] doctrine to claims madeunder state law, and this Court declines to do sohere’’). But see Reasor v. City of Norfolk, 606 F. Supp.788, 801 (E.D. Va. 1984) (holding that the Parkerimmunity doctrine ‘‘which foreclosed liabilityunder the federal antitrust act forecloses liabilityunder the Virginia antitrust act’’ and that theVirginia Antitrust Act’s statutory exemption forstate action is ‘‘broader’’ than Parker immunity‘‘because it does not require a clearly articulatedand affirmatively expressed state policy’’).

WA Wash. Rev. Code § 19.86.170 (2010)(exempting ‘‘actions or transactionspermitted by any. . .regulatory body orofficer acting under statutory authority ofthis state or the United States’’).

Flying Eagle Espresso, Inc. v. Host Int’l Inc., No. C04-1551P, 2005 U.S. Dist. LEXIS 37679, at *21 (W.D.Wash. Sept. 21, 2005) (finding ‘‘that theWashington courts have spoken on the issue ofstate actor immunity by announcing tests farstricter than the federal precedents applying stateactor immunity’’ and holding that ‘‘this Court isnot inclined to allow dismissal of the state anti-trust claims based only on the prior dismissal ofthe Sherman Act claims’’); Vogt v. Seattle-First Nat’lBank, 817 P.2d 1364, 1370 (Wash. 1991) (holdingthat section ‘‘19.86.170 does not exempt actions ortransactions merely because they are regulated


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generally’’ and applies only if the particular prac-tice is ‘‘specifically permitted, prohibited orregulated’’).

WV W. Va. Code § 47-18-5(b) (2010) (providingthat the West Virginia Antitrust Actexempts ‘‘any person whose activities oroperations are regulated, to the extent ofsuch regulation, pursuant to the laws of thisState or of the United States, by a regulatoryagency of this State or of the United States’’).


WI The Wisconsin Antitrust Act does notcontain a statutory exemption for stateaction.

Hallie v. Chippewa Falls, 314 N.W.2d 321, 323-24 &326 (Wis. 1982) (stating that the federal ‘‘Parkerexemption is not applicable’’ to a state antitrustclaim because the ‘‘relationship between thefederal government and the states is not parallel tothe relationship between the state governmentand the cities,’’ but nevertheless exempting a cityfrom state antitrust liability because ‘‘the legisla-ture did not intend that a city should be liableunder the state antitrust law’’ for attempting to tiethe collection of sewage and other municipalservices to access to a sewage treatment facility’’);American Med. Transp. v. Curtis-Universal, Inc., 452N.W.2d 575, 579-83 (Wis. 1990) (holding that thecity of Milwaukee is not immune from state anti-trust liability in connection with its adoption of anallegedly anticompetitive ambulance servicesystem because the court could not conclude that‘‘the authority of towns and counties to contractfor ambulance services evinces a legislative intentto contract in a way that leads to monopoly orrestraint of trade’’) (internal quotations omitted).

WY Wyoming antitrust statutes do not contain astatutory exemption for state action.

Kautza v. City of Cody, 812 P.2d 143, 146 (Wyo.1991) (holding that a municipality is not liable foroffering a service at a below-cost rate becauseWyo. Stat. Ann. § 40-4-107(a), which states that it isunlawful ‘‘to sell, offer for sale or advertise for saleany article or product, at less than the costthereof,’’ applies to ‘‘any person, partnership, firm,corporation, joint-stock company, or other asso-ciation’’ and ‘‘has no application’’ to amunicipality).


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