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Opinion of the Court

participation, state judicial review was likewise limited. See Patrick, 486 U. S., at 103-105.

Our decision in Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48 (1985), though it too involved a negative option regime, is not to the contrary. The question there was whether the first part of the Midcal test was met, the Government's contention being that a pricing policy is not an articulated one unless the practice is compelled. We rejected that assertion and undertook no real examination of the active supervision aspect of the case, for the Government conceded that the second part of the test had been met. Id., at 62, 66. The concession was against the background of a District Court determination that, although submitted rates could go into effect without further state activity, the State had ordered and held ratemaking hearings on a consistent basis, using the industry submissions as the beginning point. See United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471, 476477 (ND Ga. 1979). In the case before us, of course, the Commission concedes the first part of the Midcal requirement and litigates the second; and there is no finding of substantial state participation in the ratesetting scheme.

This case involves horizontal price fixing under a vague imprimatur in form and agency inaction in fact. No antitrust offense is more pernicious than price fixing. FTC v. Superior Court Trial Lawyers Assn., 493 U. S. 411, 434, n. 16 (1990). In this context, we decline to formulate a rule that would lead to a finding of active state supervision where in fact there was none. Our decision should be read in light of the gravity of the antitrust offense, the involvement of private actors throughout, and the clear absence of state supervision. We do not imply that some particular form of state or local regulation is required to achieve ends other than the establishment of uniform prices. Cf. Columbia v. Omni Outdoor Advertising, Inc., 499 U. S. 365 (1991) (city billboard zoning ordinance entitled to state-action immunity). We do

SCALIA, J., concurring

not have before us a case in which governmental actors made unilateral decisions without participation by private actors. Cf. Fisher v. Berkeley, 475 U. S. 260 (1986) (private actors not liable without private action). And we do not here call into question a regulatory regime in which sampling techniques or a specified rate of return allow state regulators to provide comprehensive supervision without complete control, or in which there was an infrequent lapse of state supervision. Cf. 324 Liquor Corp. v. Duffy, 479 U. S. 335, 344, n. 6 (1987) (a statute specifying the margin between wholesale and retail prices may satisfy the active supervision requirement). In the circumstances of this case, however, we conclude that the acts of respondents in the States of Montana and Wisconsin are not immune from antitrust liability.

IV In granting certiorari we undertook to review the further contention by the Commission that the Court of Appeals was incorrect in disregarding the Commission's findings as to the extent of state supervision. The parties have focused their briefing on this question on the regulatory schemes of Connecticut and Arizona. We think the Court of Appeals should have the opportunity to reexamine its determinations with respect to these latter two States in light of the views we have expressed.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE SCALIA, concurring.

The Court's standard is in my view faithful to what our cases have said about “active supervision.” On the other hand, I think THE CHIEF JUSTICE and JUSTICE O'CONNOR are correct that this standard will be a fertile source of uncertainty and (hence) litigation, and will produce total aban

REHNQUIST, C. J., dissenting

donment of some state programs because private individuals will not take the chance of participating in them. That is true, moreover, not just in the “negative option” context, but even in a context such as that involved in Patrick v. Burget, 486 U. S. 94 (1988): Private physicians invited to participate in a state-supervised hospital peer review system may not know until after their participation has occurred (and indeed until after their trial has been completed) whether the State's supervision will be “active” enough.

I am willing to accept these consequences because I see no alternative within the constraints of our "active supervision" doctrine, which has not been challenged here; and because I am skeptical about the Parker v. Brown, 317 U. S. 341 (1943), exemption for state-programmed private collusion in the first place.


The Court holds today that to satisfy the “active supervision” requirement of state-action immunity from antitrust liability, private parties acting pursuant to a regulatory scheme enacted by a state legislature must prove that “the State has played a substantial role in determining the specifics of the economic policy.” Ante, at 635. Because this standard is neither supported by our prior precedent nor sound as a matter of policy, I dissent.

Immunity from antitrust liability under the state-action doctrine was first established in Parker v. Brown, 317 U. S. 341 (1943). As noted by the majority, in Parker we relied on principles of federalism in concluding that the Sherman Act did not apply to state officials administering a regulatory program enacted by the state legislature. We concluded that state action is exempt from antitrust liability, because in the Sherman Act Congress evidences no intent to “restrain state action or official action directed by a state.” Id.,

REHNQUIST, C. J., dissenting

at 351.1 “The Parker decision was premised on the assumption that Congress, in enacting the Sherman Act, did not intend to compromise the States' ability to regulate their domestic commerce." Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48, 56 (1985) (footnote omitted).

We developed our present analysis for state-action immunity for private actors in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980). We held in Midcal that our prior precedent had granted stateaction immunity from antitrust liability to conduct by private actors where a program was “clearly articulated and affirmatively expressed as state policy [and] the policy (was] actively supervised by the State itself.” Id., at 105 (internal quotation marks and citation omitted). In Midcal, we found the active supervision requirement was not met because under the California statute at issue, which required liquor retailers to charge a certain percentage above a price “posted” by area wholesalers, "[t]he State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers.” Id., at 100. We noted that the state-action defense does not allow the States to authorize what is nothing more than private price fixing. Id., at 105.

In each instance since Midcal in which we have concluded that the active supervision requirement for state-action immunity was not met, the state regulators lacked authority, under state law, to review or reject the rates or action taken

1 The Court states that “[c]ontinued enforcement of the national antitrust policy grants the States more freedom, not less, in deciding whether to subject discrete parts of the economy to additional regulations and controls,” ante, at 632. However, in Parker, we held that the Sherman Act simply does not apply to conduct regulated by the State. The enforcement of the national antitrust policy, as embodied in the antitrust laws, may grant individuals more freedom to compete in our free market system, but it does not implicate the freedom of the States in deciding whether to regulate.

REHNQUIST, C. J., dissenting

by the private actors facing antitrust liability. Our most recent formulation of the "active supervision” requirement was announced in Patrick v. Burget, 486 U. S. 94 (1988), where we concluded that to satisfy the "active supervision” requirement, “state officials (must] have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy.” Id., at 101. Until today, therefore, we have never had occasion to determine whether a state regulatory program which gave state officials authority—“power”—to review and regulate prices or conduct, might still fail to meet the requirement for active state supervision because the State's regulation was not sufficiently detailed or rigorous.

Addressing this question, the Court of Appeals in this case used the following analysis:

“Where, as here, the state's program is in place, is staffed and funded, grants to the state officials ample power and the duty to regulate pursuant to declared standards of state policy, is enforceable in the state's courts, and demonstrates some basic level of activity directed towards seeing that the private actors carry out the state's policy and not simply their own policy, more need not be established.”” 922 F. 2d 1122, 1136 (CA3 1991), quoting New England Motor Rate Bureau, Inc.

v. FTC, 908 F. 2d 1064, 1071 (CA1 1990). The Court likens this test to doing away all together with the active supervision requirement for immunity based on state action. But the test used by the Court of Appeals is

2 In 324 Liquor Corp. v. Duffy, 479 U. S. 335 (1987), we held that a New York statute failed to shelter private actors from antitrust liability because the state legislation required retailers to charge 112% of the price "posted” by wholesalers. The New York statute, like the California statute at issue in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), gave no power to the state agency to review or establish the reasonableness of the price schedules “posted” by the wholesalers. 324 Liquor, supra, at 345.

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