C|M|Law Professors Chris Sagers and Doron Kalir filed a brief in support of certiorari in an important antitrust matter, and were joined by sixteen preeminent professors of antitrust law from around the country, including law and economics faculty members from Harvard, Stanford, NYU, Berkeley, Fordham, Notre Dame, the University of Iowa, the University of Wisconsin, and others. In the decision below, McCray v. Fidelity National Insurance Company, [http://www.ca3.uscourts.gov/opinarch/103576p.pdf] the Third Circuit held that antitrust plaintiffs could not challenge a price-fixing conspiracy among title insurance companies in Delaware, because that state had set up a regulatory system to oversee title insurance rates. But plaintiffs alleged that the Delaware regulator engaged in no actual review of those rates, and that it had neither authority nor resources to provide any relief to injured rate payers. The Third Circuit found those facts irrelevant, believing it appropriate to apply the so-called “filed rate” doctrine–a rule originating in the early 20th century and reflecting the policy concerns of Progressive-era economic regulatory regimes. The Professors’ Amicus Brief argues that, while this now disfavored doctrine has been applied down to the latter day in various contexts, the Supreme Court has never found it to bar federal remedies with respect to state-filed rates, and that so to hold creates a serious theoretical conflict with certain other of the Supreme Court’s antitrust case law.
Sagers organized the group of amici and drafted the brief, and Kalir joined him in signing. The brief was also signed by a prominent public policy advocacy group, the American Antitrust Institute.
The full brief is available here [http://antitrustinstitute.org/~antitrust/sites/default/files/McCray%20Final%20File%20Copy%20as%20Filed.pdf].