Eminent Need: Proposing a Market Participant Exception for Municipal Parket Immunity

Abstract

A township is using its eminent domain powers to become a monopsony in the real estate market for the designated area. The township's monopsony power is then being exploited to create a price-fixing scheme that would violate antitrust laws, either as a per se violation under Section 1 of the Sherman Antitrust Act, or as a monopolizing or attempted monopolizing offense under Section 2. Under the Sherman Act, affected residents could force the township to appraise each property individually and pay the full market value; if the township refused, they would be subject to the treble damage penalty, erasing any possible advantage of abusing its monopsony power. As the law currently stands, however, a township is immune from suit under the Parker v. Brown decision and its progeny. This Article will use the real-life example of Mount Holly, New Jersey, and the story of one affected resident to illustrate the need for a market participant exception to Parker immunity, such that when a municipality is participating in the market for a good itself, as opposed to merely regulating that market, the Sherman Act should apply.

Keywords: Eminent Domain, Antitrust, Parker Immunity, Municipality, Monopsony, Price-Fixing