General Exemptions and Immunities

• Date: 02 June 2025

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CHAPTER XIII

GENERAL EXEMPTIONS AND IMMUNITIES

A.Introduction

In areas where federal, state, or local governments have adopted

economic or social policies that conflict with open competition, Congress

sometimes has resolved these conflicts by creating explicit statutory

exemptions—often industry-specific exemptions—from the antitrust

laws. In the absence of a specific statutory exemption, federal courts have

developed exemptions and immunities for conduct involving some degree

of government action. These exemptions and immunities derive from

principles of federalism and other constitutional considerations, and from

the related doctrine of deference to government decision-making. This

chapter discusses these judicially created exemptions and immunities, as

well as doctrines of deference applicable to government action.

Two courts held that strong state supervision over conduct was

sufficient to create state action immunity. The court in Black v. Occidental

Petroleum Corp.1held that a state-issued permit to drill for oil and natural

gas did not include active state supervision over intracompany royalty

payments between the defendants.2Similarly, in Amigo Shuttle Inc. v. Port

Authority,3the court granted the defendant’s motion to dismiss on state

action doctrine grounds because the “strong governmental interest in

suprvising ground-transportion service” demonstrated that the defendant

was not acting as a market participant.4

The Third Circuit reaffirmedthe principle that self-intersted

petitioning conduct is not necessarily outside of the scope of the Noerr-

1. 2024 U.S. Dist. LEXIS 76865 (D. Wyo. Mar. 11, 2024).

2. Id.at *15-16.

3. 2024 U.S. Dist. LEXIS 198687 (S.D.N.Y. Mar, 26, 2024).

4. Id.at *16-17; see alsoCoral Aviation Grp. v. Muller, 2024 U.S. Dist.

LEXIS 149346, at *17 (E.D. Pa. 2024) (regional airport authority acted

pursuant to a clearly articulated and affirmatively expr essed state policy to

make improvements to airport services).