Discovery and Expert Testimony

Although courts have concluded that the application of the state
action doctrine is a question of law,”1 predicate factual issues may have
to be determined before the court can rule on the defense. Those issues
may, in turn, require at least some discovery. State action discovery may
be relevant to or calculated to lead to the discovery of admissible
evidence concerning, (1) whether the challenged restraint is “‘one clearly
articulated and affirmatively expressed as state policy’” and (2) whether
that policy is “‘actively supervised by the State itself.2 The limited
nature of these two tests might limit the scope of admissible evidence.
The first prong of the state action doctrine—whether the state policy
is clearly articulated and affirmatively expressed as state policyrarely,
if ever, presents factual issues requiring discovery. The inquiry is an
objective one “for the fundamental reason that the subjective motivation
of public decision makers is irrelevant to state antitrust immunity
analysis.3 The irrelevance of the motivation of state actors is a necessary
consequence of the doctrinal underpinning of the doctrine:
1. See, e.g., Andrx Pharms., Inc. v. Elan Corp., 421 F.3d 1227, 1232 (11th
Cir. 2005); Telecor Commc’ns, Inc. v. Southwestern Bell Tel. Co., 305
F.3d 1124, 1139 (10th Cir. 2002); North Star Steel Co. v. MidAmerican
Energy Holdings Co., 184 F.3d 732, 738 (8th Cir. 1999); Yeagers Fuel v.
Pa. Power & Light Co., 22 F.3d 1260, 1265 (3d Cir. 1994); Berger v.
Cuyahoga Cnty. Bar Assn, 983 F.2d 718, 721 (6th Cir. 1993); Grason
Elec. Co. v. Sacramento Mun. Util. Dist., 770 F.2d 833, 835 (9th Cir.
2. Cal. Retail Liquor Dealers Assn v. Midcal Aluminum, 445 U.S. 97, 105
(1980) (quoting City of Lafayette v. La. Power & Light Co., 435 U.S. 389,
410 (1978)).
3. Hancock Indus. v. Schaeffer, 811 F.2d 225, 234 (3d Cir. 1987) (citing
Hoover v. Ronwin, 466 U.S. 558, 581 n.34 (1984)); see also Buckley
Const., Inc. v. Shawnee Civic & Cultural Dev. Auth., 933 F.2d 853, 856
(10th Cir. 1991); Llewellyn v. Crothers, 765 F.2d 769, 774 (9th Cir. 1985).
190 State Action Practice Manual
Parker was not written in ignorance of the reality that determination of
the public interestin the manifold areas of gover nment regulation
entails not merely economic and mathematical analysis but value
judgment, and it was not meant to shift that judgment from elected
officials to judges and juries.4
Thus, as the Supreme Court stated in City of Columbia, if the courts
were to apply a subjective test: not whether the action was in the public
interest, but whether the officials involved thought it to be so . . . [t]his
would require the sort of deconstruction of the governmental process and
probing of the official ‘intentthat we have consistently sought to
avoid.”5 This is consistent with the principle the Court has stated
repeatedly outside the antitrust arena: “it [is] not consonant with our
scheme of government for a court to inquire into the motives of
In analyzing whether the first prong of the state action defense has
been established, courts limit themselves to the usual sources for
determining the intent of government legislators and officials, including
statutes, rules, regulations, legislative history, court decisions, and
administrative rulings and pronouncements.7 However, there is a general
view, not tied to antitrust, that it is inappropriate to consider statements
4. City of Columbia v. Omni Outdoor Adver., 499 U.S. 365, 377 (1991).
5. Id.
6. Tenney v. Brand hove, 341 U.S. 367, 377 (1951) (citing Fletcher v. Peck,
10 U.S. (6 Cranch) 87, 130-31 (1810)).
7. See, e.g., First Am. Title Co. v. Devaugh, 480 F.3d 438, 447 (6th Cir. 2007)
(state statute and obvious and uncontested realitiesof which legislature
was aware when enacti ng statute); Telecor Commc’ns, Inc. v. Southwestern
Bell Tel. Co., 305 F.3d 1124, 1149 (10th Cir. 2002) (state constitution,
statutes, and case law); Electrical Inspectors, Inc. v. Vill. o f East Hills, 320
F.3d 110, 120-21 (2d Cir. 2002) (state statute and regulations pr omulgated
thereunder); Columbia Steel Casting Co. v. Portland Gen. Elec. Co., 111
F.3d 1427, 1437-38 (9th Cir. 1997) (relying on state statutes and public
orders of public utility commission); TEC Cogenera tion v. Fla. Power &
Light Co., 76 F.3d 1560, 1568 (11th Cir.), modified on reh’g, 86 F.3d 1028
(11th Cir. 1996) (state statutes and regulatory rules, agency proceedings
and orders, and Florida Supreme Court case law); Praxair, Inc. v. Fla.
Power & Light Co., 64 F.3d 609, 611-12 (11th Cir. 1995) (state statutes,
case law, and regulatory provisions); Hardy v. City Optical, 39 F.3d 765
(7th Cir. 1994) (state statute and regulatio n); Yeagers Fuel v. Pa. Power &
Light Co., 22 F.3d 1260, 1266-70 (3d Cir. 1994) (statutes, state
administrative rules, and public utility commission repo rts, rulings, and
public statements).

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