AAI Joins Antitrust Scholars in Urging Theoretical Consistency in the Application of State Immunity Doctrines (McCray v. Fidelity Nat’l Title Ins. Co)

The AAI joined an amicus brief filed on behalf of 19 antitrust and competition policy scholars urging the Supreme Court to grant certiorari in McCray v. Fidelity Nat’l Title Ins. Co., 682 F.3d 229 (3d Cir. 2012) to resolve an untenable inconsistency in the Third Circuit’s application of the filed rate doctrine to rates filed with a state agency. In McCray, the Third Circuit applied the filed rate doctrine to bar a private price fixing claim involving title insurance rates filed with a private rating bureau pursuant to a state insurance agency’s “file-and-use” statutory scheme. Although state action immunity requires a clearly articulated and affirmatively expressed intent to displace competition and active supervision of the challenged conduct, whereas the filed rate doctrine — which typically protects federal agencies — requires neither, the court extended filed rate protection to private state actors without resolving the doctrinal inconsistency. As a result, the outcome is squarely at odds with the Ninth Circuit’s decision on nearly identical facts in Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992), in which a private claim was not barred by rates filed under a state insurance agency’s “file-and-use” statutory scheme because the agency did not meet the active supervision requirement of the state action doctrine. Amici argued that McCray is at odds with decades of the Supreme Court’s carefully balanced antitrust federalism and not anchored to any cognizable policy goal. Amici also noted that certiorari in McCray would complement certiorari in FTC v. Phoebe Putney Health System, Inc., 663 F.3d 1369 (11th Cir. 2011), by allowing the court to issue guidance on the active supervision requirement of the state action doctrine in addition to the clear articulation requirement.

The brief was written by AAI Advisory Board Member Chris Sagers, with assistance from AAI Advisory Board Member Harry First.