Clarifying State Action Immunity under the Antitrust Laws: FTC v. Phoebe Putney Health System, Inc.

Authors

Angela M. Diveley, Freshfields Bruckhaus Deringer US LLP

First Page

73

Document Type

Article

Abstract

In Part I of this Article, I set forth the current landscape of the state action doctrine. In Part II, I explain the FTC's and the Eleventh Circuit's applications of the doctrine, highlighting the main points of contention that warrant clarification by the United States Supreme Court. I discuss the Court's interpretive options on certiorari in Part There, I argue the Court should impose a higher standard than the Eleventh Circuit under the first prong of the test, which asks whether a state has clearly articulated a policy of displacing competition. I also explain a conflict between the FTC and Eleventh Circuit under the second prong of the test, which asks whether private parties acting pursuant to a clearly articulated policy are actively supervised by the state. I explain that both incorrectly interpret the implications of a sham transaction, and I resolve the resulting conflict through the lens of federalism principles and consideration of alternative checks on unnecessarily anticompetitive state action. Finally, in Part IV, I present alternative options that can be taken to ensure the state action doctrine does not lead to the joint destruction of federalism and competition.

Recommended Citation

Angela M. Diveley, Clarifying State Action Immunity under the Antitrust Laws: FTC v. Phoebe Putney Health System, Inc., 25 St. Thomas L. Rev. 73 (2012).
Available at: https://scholarship.stu.edu/stlr/vol25/iss1/5