SLLC Files Supreme Court Amicus Brief in Antitrust Case

Local governments occasionally are sued for violating antitrust law. ICMA joined an amicus brief urging the Supreme Court not to make it more difficult to defend these claims.

BLOG POST | Feb 5, 2018

by Lisa Soronen, executive director, State and Local Legal Center

In its amicus brief in Salt River Project Agricultural Improvement and Power District v. SolarCity, the State and Local Legal Center (SLLC) urges the Supreme Court to rule that a district court’s denial of state-action immunity to a state or local government is immediately appealable.

The state-action doctrine provides states and, in some instances, local governments immunity from federal antitrust liability.

SolarCity sells and leases rooftop solar-energy panels. The Salt River Power District, a political subdivision of Arizona, is the only traditional supplier of power near where many SolarCity customers live. SolarCity claims that to prevent it from installing more panels, the power district introduced a new pricing structure. Now if a customer obtains power from his or her own system, the customer must pay a “prohibitively large penalty.”

SolarCity sued the power district, claiming it violated federal antitrust law. The power district argued it is immune from federal antitrust liability per the state-action doctrine.

The federal district court denied the power district’s motion to dismiss the lawsuit citing “uncertainties about the specifics of the power district’s state-law authority and business.” The power district sought to immediately appeal the district court’s denial of state-action immunity rather than waiting until after the district court ruled whether it violated antitrust law.

Generally, only final decisions of lower courts may be appealed. Here, the district court’s denial of the power district’s motion to dismiss isn’t final because the district court must still decide whether the power district violated antitrust law. The “collateral-order” doctrine allows non-final judgments to be appealed in some instances. The Ninth Circuit held it does not apply to orders denying public entities state-action immunity.

The SLLC amicus brief argues that “important federalism and policy considerations” weigh in favor, allowing state and local governments to appeal denials of state-action immunity immediately. More specifically, “because the extension of state-action immunity to governmental entities is rooted in the state’s own sovereign immunity, permitting interlocutory appeal is necessary to respect state sovereignty.” Likewise, “compelling governmental entities to endure trial court antitrust litigation to final judgment after denial of a state-action immunity motion exposes governmental entities and their taxpaying residents to enormous costs and risks.”

Tillman Lay, Katharine Mapes, Jessica Bell, and Amber Martin of Spiegel & McDiarmid wrote the SLLC amicus brief, which these organizations joined: National Governors Association, National Conference of State LegislaturesCouncil of State GovernmentsNational Association of Counties, National League of Cities, United States Conference of MayorsInternational City/County Management Association, and International Municipal Lawyers Association.


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