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The Market-Participant Exception to State-Action Immunity from Antitrust Liability

Competition: The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of California, Vol. 23, No. 1, Spring 2014

23 Pages Posted: 31 May 2014  

Jarod M. Bona

Bona Law PC

Luke Anthony Wake

National Federation of Independent Business

Date Written: February 27, 2014

Abstract

The federal antitrust laws embody fundamental values of free enterprise and economic competition. At the same time, our federal system supports a strong degree of state sovereignty. In most cases, these values peacefully co-exist. But in a subset of cases — federal antitrust lawsuits against state and local government entities — they can collide.

Beginning with the U.S. Supreme Court’s 1943 Parker v. Brown decision, the courts have developed a doctrine called state-action immunity that isolates narrow government conduct that is state-sovereign activity and exempts it from antitrust scrutiny. But, the Supreme Court has hinted — without ever deciding — that antitrust law may still apply to these government actors when they are engaged in active competition with private business. The circuits are currently split on the question. Some recognize this “market-participant exceptions,” while others wait for further Supreme Court guidance. In this article, the authors argue that both experience and policy support this commercial-conduct exception to the limited state exemption from the federal antitrust laws.

This article further explores how the market-participant doctrine would work if applied in Sherman Act cases and explains why the doctrine is consistent with federalism principles. Finally, the article discusses the possible scope of the market participant exception, including its potential application in cases where government actors have enacted regulations for the sole purpose of displacing competition in a manner that insulates a public enterprise from competition.

Keywords: antitrust, market-participant, state action, immunity, Sherman act, competition, private business, public actors, dormant commerce clause, exemptions

Suggested Citation

Bona, Jarod M. and Wake, Luke Anthony, The Market-Participant Exception to State-Action Immunity from Antitrust Liability (February 27, 2014). Competition: The Journal of the Antitrust and Unfair Competition Law Section of the State Bar of California, Vol. 23, No. 1, Spring 2014 . Available at SSRN: https://ssrn.com/abstract=2402444

Jarod M. Bona

Bona Law PC ( email )

4275 Executive Square
Suite 200
La Jolla, CA 92067
United States
858-964-4589 (Phone)

HOME PAGE: http://www.TheAntitrustAttorney.com

Luke Anthony Wake (Contact Author)

National Federation of Independent Business ( email )

1201 F Street, N.W.
Suite 200
Washington, DC 20004
United States

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