Antitrust Preemption Sample Clauses

Antitrust Preemption. The Second Circuit found that the MSA and implementing statutes would constitute per se violations of the Xxxxxxx Act if implemented by private parties.220 Therefore, the MSA and implementing statutes are 218. See supra notes 200–206 and accompanying text (describing Ninth Circuit’s state action analysis in Xxxxxxx); supra notes 212–214 and accompanying text (describing Eighth Circuit’s state action analysis in Grand River). 219. See infra notes 265–266 and accompanying text (discussing reluctance of many courts to challenge MSA for public policy reasons). 220. Freedom Holdings, Inc. x. Xxxxxxx, 357 F.3d 205, 226 (2d Cir. 2004) (“The al- leged arrangement, even without the protection of the Contraband Statutes as enforced by wholesalers, would be a per se violation because it is a naked restraint on competition, al- preempted. Other circuits, however, found that the MSA and implement- ing statutes do not contemplate conduct that is always a per se violation of the Xxxxxxx Act and therefore cannot be preempted.221 The divergence appears to be driven by differing interpretations of the Supreme Court’s decision in Xxxx. That decision held that a statute may be preempted by the Xxxxxxx Act “only if it mandates or authorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the anti- trust laws in order to comply with the statute.”222 Circuits disagree on the relevance and meaning of “irresistible pressure” in that statement. The Second Circuit found that the MSA’s structure created “irresistible pres- sure” on cigarette manufacturers to violate the antitrust laws by creating “powerful disincentives” to compete on price.223 By contrast, the Fifth, Sixth, Eighth, Ninth, and Tenth Circuits focused on whether the MSA required or explicitly authorized a violation of the antitrust laws.224 These lat- ter courts, for the most part, appear to ignore the phrase “irresistible pressure.”225 And because the MSA does not require cigarette manufactur- beit one subject to erosion by NPMs. We therefore hold that appellants have suffi- ciently alleged a per se violation of the Xxxxxxx Act.”). 221. See, e.g., Grand River Enters. Six Nations x. Xxxxx, 574 F.3d 929, 937 (8th Cir. 2009) (“Although the statute in question places some pressure on NPMs to charge higher prices to offset the escrow payments, this pressure does not force NPMs to raise prices ‘in all cases.’” (citation ...