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REHNQUIST, C. J., dissenting

much more closely attuned to our “have and exercise power” formulation in Patrick v. Burget than is the rule adopted by the Court today. The Court simply does not say just how active a State's regulators must be before the “active supervision” requirement will be satisfied. The only guidance it gives is that the inquiry should be one akin to causation in a negligence case; does the State play "a substantial role in determining the specifics of the economic policy.” Ante, at 635. Any other formulation, we are told, will remove the active supervision requirement altogether as a practical matter.

I do not believe this to be the case. In the States at issue here, the particular conduct was approved by a state agency. The agency manifested this approval by raising no objection to a required rate filing by the entity subject to regulation. This is quite consistent with our statement that the active supervision requirement serves mainly an “evidentiary function” as “one way of ensuring that the actor is engaging in the challenged conduct pursuant to state policy.” Hallie v. Eau Claire, 471 U. S. 34, 46 (1985).

The Court insists that its newly required “active supervision” will “increase the States' regulatory flexibility.” Ante, at 636. But if private actors who participate, through a joint rate filing, in a State's “negative option” regulatory scheme may be liable for treble damages if they cannot prove that the State approved the specifics of a filing, the Court makes it highly unlikely that private actors will choose to participate in such a joint filing. This in turn lessens the States' regulatory flexibility, because as we have noted before, joint rate filings can improve the regulatory process by ensuring that the state agency has fewer filings to consider, allowing more resources to be expended on each filing.

3 The state regulatory programs in Midcal, supra, Patrick v. Burget, 486 U. S. 94 (1988), and 324 Liquor, supra, would all fail to provide immunity for lack of active supervision under the test adopted by the Court of Appeals.

REHNQUIST, C. J., dissenting

Southern Motor Carriers Rate Conference, Inc. v. United States, supra, at 51. The view advanced by the Court of Appeals does not sanction price fixing in areas regulated by a State “not inconsistent with the antitrust laws." Ante, at 636. A State must establish, staff, and fund a program to approve jointly set rates or prices in order for any activity undertaken by private individuals under that program to be immune under the antitrust laws.4

The Court rejects the test adopted by the Court of Appeals, stating that it cannot be the end of the inquiry. Instead, the party seeking immunity must “show that state officials have undertaken the necessary steps to determine the specifics of the price-fixing or ratesetting scheme.” Ante, at 638. Such an inquiry necessarily puts the federal court in the position of determining the efficacy of a particular State's regulatory scheme, in order to determine whether the State has met the “requisite level of active supervision.” Ante, at 637. The Court maintains that the proper stateaction inquiry does not determine whether a State has met some “normative standard” in its regulatory practices. Ante, at 634. But the Court's focus on the actions taken by state regulators, i. e., the way the State regulates, necessarily requires a judgment as to whether the State is sufficiently active—surely a normative judgment.

* In neither of the examples cited by the majority as instances of state regulation not intended to authorize anticompetitive conduct would application of a less detailed active supervision test change the result. In Patrick v. Burget, supra, we concluded there was no immunity because the State did not have the authority to review the anticompetitive action undertaken by the peer review committee; in Cantor v. Detroit Edison Co., 428 U. S. 579 (1976), it is unlikely that the clear articulation requirement under our current jurisprudence would be met with respect to the market for light bulbs.

5 It is not clear, from the Court's formulation, whether this is a separate test applicable only to negative option regulatory schemes, or whether it applies more generally to issues of immunity under the state-action doctrine.

O'CONNOR, J., dissenting

The Court of Appeals found—properly, in my view—that while the States at issue here did not regulate respondents' rates with the vigor petitioner would have liked, the States' supervision of respondents' conduct was active enough so as to provide for immunity from antitrust liability. The Court of Appeals, having concluded that the Federal Trade Commission applied an incorrect legal standard, reviewed the facts found by the Commission in light of the correct standard and reached a different conclusion. This does not constitute a rejection of the Commission's factual findings.

I would therefore affirm the judgment below.

JUSTICE O'CONNOR, with whom JUSTICE THOMAS joins, dissenting

Notwithstanding its assertions to the contrary, the Court has diminished the States' regulatory flexibility by creating an impossible situation for those subject to state regulation. Even when a State has a “clearly articulated policy” authorizing anticompetitive behavior—which the Federal Trade Commission concedes was the case here—and even when the State establishes a system to supervise the implementation of that policy, the majority holds that a federal court may later find that the State's supervision was not sufficiently "substantial” in its “specifics” to insulate the anticompetitive behavior from antitrust liability. Ante, at 635. Given the threat of treble damages, regulated entities that have the option of heeding the State's anticompetitive policy would be foolhardy to do so; those that are compelled to comply are less fortunate. The practical effect of today's decision will likely be to eliminate so-called “negative option” regulation from the universe of schemes available to a State that seeks to regulate without exposing certain conduct to federal antitrust liability.

The Court does not dispute that each of the States at issue in this case could have supervised respondents' joint ratemaking; rather, it argues that “the potential for state super

O'CONNOR, J., dissenting

vision was not realized in fact.” Ante, at 638. Such an after-the-fact evaluation of a State's exercise of its supervisory powers is extremely unfair to regulated parties. Liability under the antitrust laws should not turn on how enthusiastically a state official carried out his or her statutory duties. The regulated entity has no control over the regulator, and very likely will have no idea as to the degree of scrutiny that its filings may receive. Thus, a party could engage in exactly the same conduct in two States, each of which had exactly the same policy of allowing anticompetitive behavior and exactly the same regulatory structure, and discover afterward that its actions in one State were immune from antitrust prosecution, but that its actions in the other resulted in treble-damages liability.

Moreover, even if a regulated entity could assure itself that the State will undertake to actively supervise its rate filings, the majority does not offer any guidance as to what level of supervision will suffice. It declares only that the State must “pla[y] a substantial role in determining the specifics of the economic policy.” Ante, at 635. That standard is not only ambiguous, but also runs the risk of being counterproductive. The more reasonable a filed rate, the less likely that a State will have to play any role other than simply reviewing the rate for compliance with statutory criteria. Such a vague and retrospective standard, combined with the threat of treble damages if that standard is not satisfied, makes “negative option” regulation an unattractive option for both States and the parties they regulate.

Finally, it is important to remember that antitrust actions can be brought by private parties as well as by government prosecutors. The resources of state regulators are strained enough without adding the extra burden of asking them to serve as witnesses in civil litigation and respond to allegations that they did not do their job.

For these reasons, as well as those given by THE CHIEF JUSTICE, I dissent.

Syllabus

BURLINGTON NORTHERN RAILROAD CO. v. FORD

ET AL.

CERTIORARI TO THE SUPREME COURT OF MONTANA

No. 91–779. Argued April 20, 1992—Decided June 12, 1992 Respondents sued petitioner, their employer, under the Federal Employers' Liability Act in the state court in Yellowstone County, Montana. That court denied petitioner's motions to change venue to Hill County, where petitioner claimed to have its principal place of business in Montana. The State Supreme Court affirmed, ruling that Montana's venue rules—which permit a plaintiff to sue a corporation incorporated in that State only in the county of its principal place of business, but permit suit in any county against a corporation, like petitioner, that is incorporated elsewhere-do not work a discrimination violating the Fourteenth

Amendments Equal Protection Clause. Held: The distinction in treatment contained in Montana's venue rules

does not offend the Equal Protection Clause. Those rules neither deprive petitioner of a fundamental right nor classify along suspect lines like race or religion, and are valid because they can be understood as rationally furthering a legitimate state interest: adjustment of the disparate interests of parties to a lawsuit in the place of trial. Montana could reasonably determine that only the convenience to a corporate defendant of litigating in the county of its home office outweighs a plaintiff's interest in suing in the county of his choice. Petitioner has not shown that the Montana venue rules' hinging on State of incorporation rather than domicile makes them so underinclusive or overinclusive as to be irrational. Besides, petitioner, being domiciled outside Montana, would not benefit from a rule turning on domicile, and therefore cannot complain of a rule hinging on State of incorporation. Power Manufac

turing Co. v. Saunders, 274 U. S. 490, distinguished. Pp. 650–654. 250 Mont. 188, 819 P. 2d 169, affirmed.

SOUTER, J., delivered the opinion for a unanimous Court.

Betty Jo Christian argued the cause for petitioner. With her on the briefs were Charles G. Cole, Jerald S. Howe, Jr., Virginia L. White-Mahaffey, Edmund W. Burke, and Richard V. Wicka.

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