Recently in antitrust Category

Market Manipulation, Preemption, and FERC Jurisdiction: Antitrust Claim from 2000-01 Crisis Revived By Ninth Circuit

April 10, 2013

The U.S. Court of Appeals for the Ninth Circuit today revived a class-action antitrust case against a large assemblage of natural gas sellers and marketers who were allegedly involved in manipulating Western natural gas prices during 2000-01. Manipulation of gas prices was one factor contributing to the meltdown of Western electricity markets during the same period. The court's decision, entitled In re: Western States Wholesale Natural Gas Antitrust Litigation, limits the extent to which the Federal Energy Regulatory Commission's exclusive jurisdiction under the Natural Gas Act ("NGA") preempts private antitrust claims under both state and federal law.

While the immediate effect of the court's decision is to allow plaintiffs harmed by the alleged gas market manipulation to seek potentially substantial antitrust remedies, the decision is likely to have long-term import well beyond the specifics of the particular facts addressed by the court. This is so because the NGA is one of a family of similar New Deal-era statues which also includes statutes like the Federal Power Act and the Federal Communications Act, and the court's decision turns on language that is common to this family of statutes. Further, the court opens the way for antitrust damage claims that allow injured private parties to seek damages, including treble damages, against market manipulators. These private actions will serve to bolster FERC's recently-intensified battle against energy market manipulation, which extends to the power markets as well as the natural gas markets.

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U.S. Supreme Court Narrows Antitrust Exemptions for Local Government Entities

February 22, 2013

In a decision of great interest to Washington's Public Hospital Districts, Public Utility Districts, Port Districts, and many other state and local government entities, the Supreme Court this week issued an opinion clarifying and narrowing antitrust immunity for state and local governments. As a result of the decision, public agencies will need to exercise great care when taking actions that could restrict competition.

Under the "state-action immunity doctrine," the courts have long recognized that local government entities are immune from federal antitrust liability if they act under state law intended to restrict competition. But, for immunity to apply, a local government entity must act under a "clearly articulated and affirmatively expressed state policy to displace competition." This week's Supreme Court decision, FTC v. Phoebe Putney Health System, Inc., clarifies how this "clearly articulated and affirmatively expressed" test should be applied. The Court concludes that, while state legislatures need not explicitly state that they intend to restrict competition, limitation of competition must be the natural and logical consequence of the policy adopted by the state.

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