The Slow Drift Toward More Antitrust Exemptions

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Originally Published in Competition Law360 - December 13, 2011.

For as long as there have been industry-specific regulatory regimes (securities regulations or the old Interstate Commerce Commission, for example), the regulated players have been arguing that they should be exempt from general antitrust liability to private plaintiffs. After all, the argument goes, if Congress has decided to set specific rules for an industry, why should the generally-applicable, “default” antitrust laws also apply? One of the earliest cases regarding an antitrust exemption framed it thusly: “Can it be that Congress intended to provide the shipper, from whom illegal rates have been exacted, with an additional remedy under the Anti-Trust Act?”

Traditionally, such arguments have been greeted with a cool – if not hostile – reception by the courts, which responded with soaring language recognizing that “the antitrust laws represent a fundamental national economic policy,” and that the Sherman Act stands as the “Magna Carta of free enterprise.” The cases evidence a strong reluctance to place regulated conduct beyond the reach of the antitrust laws, owing to the fact that “Congress intended to strike as broadly as it could in section 1 of the Sherman Act,” and that “[l]anguage more comprehensive [than the Sherman Act] is difficult to conceive.” Accordingly, the hurdles were set high for those seeking an exemption from antitrust liability: “we cannot lightly assume that the enactment of a special regulatory scheme for particular aspects of an industry was intended to render the more general provisions of the antitrust laws wholly inapplicable to that industry.” These Supreme Court decisions, with full-throated support for the broadest possible application of antitrust, ostensibly remain good law.

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