AAI Asks the Ninth Circuit to Think Twice Before Conferring State Action Immunity (United National Maintenance v. San Diego Convention Center Corp., No. 12-56809)

The AAI has asked the Ninth Circuit to apply both prongs of the Midcal test before conferring state action immunity on public agencies that are controlled by private actors, or that act as commercial market participants. In United National Maintenance v. San Diego Convention Center Corp., the AAI wrote to suggest that the Ninth Circuit follow the Fourth Circuit’s recent decision in North Carolina State Board of Dental Examiners v. FTC in inquiring into management’s structure and potential private motivations before relieving ostensibly public agencies controlled by private actors of having to meet the active supervision requirement to establish state action immunity. The AAI also asked the Ninth Circuit to adopt a market participant exception that would require hybrid and public state agencies that participate commercially in markets to meet both prongs of the Midcal test as well.

The brief was written by AAI Senior Counsel Randy Stutz and AAI Special Counsel Sandeep Vaheesan.