Chapter XII Antitrust and International Commerce

• Pages: 225-336

CHAPTER XIII

GENERAL EXEMPTIONS AND IMMUNITIES

State Action Analysis of Private Conduct – A Two-Part Framework

The Clear Articulation Requirement

In Ellis v. Salt River Project Agricultural Improvement & Power

District,1 the Ninth Circuit noted that the relevant state statute did not

clearly articulate a policy to displace competition, but “that Arizona’s

‘statutes signal a shift by [the] legislature to promote competition in the

retail electricity market’ not curtail it.”2 The court rejected the proposition

that the alleged anticompetitive conduct and effects were a natural

consequence of the utility’s statutorily granted authority.3

Actions Taken by Subordinate Government Entities

State Executive Departments, Agencies, and Special Authorities

In Van Hook v. Idaho,4 the U.S. District Court for the District of Idaho

explained that state agencies are not sovereign actors for purpo ses of state-

action immunity simply by virtue of their governmental character and that

immunity is only applicable where they are acting as required by state

regulations.5 In this case, however, the Idaho Judicial Council was entitled

1. 24 F.4th 1262 (9th Cir. 2022).

2. Id. at 1276.

3. Id.

4. 2022 U.S. Dist. LEXIS 22412 (D. Idaho 2022).

5. Id. at *18.