Ninth Circuit: Xxxxxxx x Sample Clauses

Ninth Circuit: Xxxxxxx x. Xxxxx. — In Xxxxxxx x. Xxxxx, a class of smokers sued the California Attorney General and the OPMs.181 The named plaintiff, Xxxxxxx, challenged the Qualifying and Contraband Statutes on their face, claiming they were preempted by the Xxxxxxx Act.182 Xxxxxxx also alleged specific antitrust injury, pointing to post-MSA parallel price increases as illegal price fixing, and argued that the im- plementing statutes failed Midcal’s active supervision requirement.183 The district court granted a motion to dismiss, holding that the Xxxxxxx Act did not preempt the implementing statutes and, even if it did, the de- fendants were immune from liability under the state action doctrine.184 In affirming the district court, the Ninth Circuit first held that the Xxxxxxx Act did not preempt the implementing statutes because the statutes did not contemplate conduct that was a per se violation in all cases.185 The court noted that the statutes did not explicitly allow price fixing.186 Xxxxxxx, however, did not argue that there was an explicit price- fixing agreement.187 Instead, he argued that the MSA penalized price competition by forcing tobacco manufacturers to pay more money to the states as their market shares increased.188 Xxxxxxx alleged that this effec- tively resulted in MSA participants agreeing to compensate each other for market share increases.189 Thus, when one firm raised its price, other participants allegedly could have raised prices in lockstep without fear of being undercut.190 Potentially, NPMs could have entered the market and undercut the participating manufacturers (PMs) (which included the 181. 504 F.3d 903, 906 (9th Cir. 2007). 182. Id. at 909 (“This scheme is preempted by the Xxxxxxx Act, Xxxxxxx argues, be- cause it so obviously conflicts with federal antitrust law.”).