Chapter XIII General Exemptions and Immunities

Regulatory Framework
The Packers and Stockyards Act of 1921
In United States v. Cargill Meat Solutions Corp.,1 the Department of
Justice filed a complaint and simultaneously entered into a consent decree
with Cargill Inc., Sanderson Farms Inc., and Wayne Farms LLC, together
with data consulting firm Weber, Meng, Sahl and Company, and its
president, alleging a conspiracy among poultry producers to make
compensation decisions; exchange current and furture, disaggregated, and
identifiable compensation information, and suppress compeition in the
labor markets for poultry processing.2 The complaint included an
allegation that two of the poultry processors violated the Packers and
Stockyards Act by engaging in deceptive practices associated with a
tournament system to determine compensation.3
1. Complaint, United States v. Cargill Meat Sols. Corp., No. 1:22-cv-1821-
SAG (D. Md. Jul. 25, 2022), ECF No. 1. The United StatesExplanations
of Consent Decree Procedures with respect to all defendants were filed
simultaneously with the Complaint. See id., ECF No. 2 (as to defendants
Cargill Inc., Sanderson Farms Inc., and Wayne Farms LLC), ECF No. 3
(as to Weber, Meng, Sahl and Company and its presedent).
2. Complaint ¶¶ 199-207, Cargill Meat Sols., No. 1:22-cv-1821-SAG, ECF
No. 1.
3. Id. at ¶¶ 208-13.
342 2022 Annual Review of Antitrust Law Development
Mergers, Acquisitions, and Joint Ventures
In September 2022, the district court in Delaware held that the
Department of Justice failed to prove the proposed acquisition of Imperial
Sugar Company by United States Sugar Corporation was likely to
substantially lessen compeittion or tend to create a monopoloy under
Section 7 of the Clayton Act in the in the production and sale of refined
sugar.4 The court rejected the DOJ’s relevant market definition because its
“product market and geographic markets ignore the commercial realities
of sugar supply in the US,” including that “sugar flows freely and over
long distances in response to market forces.”5 The court also highlighted
the regulated nature of the sugar industry, noting that the transaction “must
be viewed against the backdrop of the [United States Department of
Agriculture’s] intimate involvement with the US sugar industry.”6 As of
January 2023, the case is currently on appeal to the Third Circuit, which
denied the DOJ’s emergency motion for an injunction pending appeal.7
Common Carriers
The Telecommunications Act of 1996
(1) The 1996 Act and Social-Media Platforms
Federal Circuit Courts have considered the question of whether social-
media platforms constitute common carriers under the
4. United States v. United States Sugar Corp., 2022 U.S. Dist. LEXIS 175817
(D. Del. 2022).
5. Id. at *62, *81.
6. Id. at *84.
7. Order, United States v. United States Sugar Corp., No. 22-2806 (3rd Cir.
Sept. 27, 2022), ECF No. 27.
Regulated Industries 343
Telecommunications Act.8 In NetChoice, LLC v. AG,9 the Eleventh Circuit
found that social-media platforms did not constitute common carriers in
part because the plain language of the Telecommunications Act “explicitly
differentiates ‘interactive computer services’like social-media
platforms—from ‘common carriers or telecommunications services.’”10 In
contrast, the Fifth Circuit held that social-media platforms meet the
definition of common carriers under the Telecommunications Act because
they are “communications firms[] [that] hold themselves out to serve the
public without individualized bargaining, and are affected with a public
(2) Judicial Interpretation of the 1996 Act
In Tenny Journal Commc’ns, Inc. v. Verizon N.J., Inc.,12 the U.S.
District Court District of New Jersey found that under Section 207 of the
Telecommunications Act, a plaintiff is not entitled to a cause of action
unless the FCC determines that a particular practice constitutes an “unjust
or unreasonable” practice under the Telecommunications Act.13 The court
held that before a plaintiff may bring a cause of action under Section 207,
the FCC must first determine that a particular type of practice constitutes
an “unjust or unreasonable” practice under Section 201(b).14 In this case,
plaintiff Tenny, a competitive local exchange carrier (LEC), alleged that
it paid defendants Verizon New Jersey and Verizon Pennsylvania deposits
but did not receive service at all of the pay phones their agreement
covered.15 The court found that a carrier violates section 201(b) when it
8. See NetChoice, LLC v. AG, 2022 U.S. App. LEXIS 13852, at *44-50 (11th
Cir. 2022) (considering whether social media platforms constitute common
carriers based on Supreme Court precedent, guidance from Congress, and
the way social media platforms act); see also NetChoice, L.L.C. v. Paxton,
2022 U.S. App. LEXIS 26062, at *73-87 (5th Cir. 2022) (analyzing
whether it was permissible for the Texas legislature to consider social
media platforms common carriers).
9. 2022 U.S. App. LEXIS 13852 (11th Cir. 2022).
10. Id. at *46 (citing 47 U.S.C. § 233(e)(6) (“Nothing in this section shall be
construed to treat interactive computer services as common carriers or
telecommunications carriers.”)).
11. NetChoice v. Paxton, 2022 U.S. App. LEXIS 26062, at *73.
12. 2022 U.S. Dist. LEXIS 99431 (D.N.J. 2022).
13. See id. at 18.
14. See id.
15. See id. at 2.

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