Utah Bar Journal

This holding places Utah State law on the issue of state action immunity firmly in the mainstream of antitrust jurisprudence, and renders analysis of such immunity under State law congruent with long held principles of federal antitrust law. Despite concerns raised by some, and as set forth below, the Supreme Court's opinion is based on sound reasoning, establishes good public policy, and will have little or no impact on the legitimate activities of Utah's political subdivisions.1

BACKGROUND
Summit Water filed a lawsuit in September 2001 alleging antitrust violations against Summit County (the "County") and the Mountain Regional Water Special Service District ("Mountain Regional") (collectively, the "County Defendants"). Summit Water is a non-profit private mutual water company that sells culinary grade water in the Snyderville Basin. Mountain Regional, a Special District, is a competing provider of culinary water controlled and operated by the County. Developers must have a source of culinary water to obtain necessary approvals from Summit County. Summit Water alleges that the County Defendants attempted to monopolize the relevant water market by passing a series of ordinances designed to competitively disadvantage Summit Water and advantage Mountain Regional, and leveraged the County's planning and development process to force developers to purchase water from Mountain Regional. In particular, Summit Water claims that the County provided advantageous zoning concessions to developers who chose Mountain Regional as its water provider instead of a private competitor such as Summit Water, resulting in a per se unlawful tie between water and zoning.

Summit Water brought its antitrust claims under the Utah Antitrust Act. The Utah Antitrust Act is similar to the federal Sherman Act,2 and prohibits conspiracies in restraint of trade and attempts to monopolize.3 In its first amended complaint, Summit Water also asserted additional claims under Article XII, Section 20 of the Utah Constitution. That section, added to Utah's Constitution in 1992, is based on language from the Sherman Act itself. It states:

It is the policy of the State of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people. Each contract, combination in the form or otherwise, of conspiracy in restraint of trade or commerce is prohibited. Except as otherwise provided by statute, it is also prohibited for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce.4

In response to Summit Water's antitrust claims, the County Defendants brought a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Summit County contended, among other things, that Article XII, Section 20 of the Utah Constitution was not self executing, and that in any event, state action immunity prevented antitrust scrutiny of the activities of a County. The County Defendants also argued that their activities were immune under Section 76-10-915(1)(f) of the Utah Antitrust Act, and that any claim against the County Defendants under that statute must fail as a matter of law.5

JUDGE HILDER'S FIRST OPINION
Judge Robert K. Hilder, the trial Court Judge, rendered his first opinion in the case on March 4, 2002, ruling that Summit Water could go forward with its claims under Article XII, Section 20 of the Utah Constitution. The court held that the constitutional provision was indeed self-executing. He further held that the state action immunity doctrine applied only to a state, not to political subdivisions of a state, and that Section 76-10-916(1)(f) of the Utah Antitrust Act did not apply because the County was not a municipality. The County Defendants filed a motion for reconsideration in January 2003. In their papers, the County Defendants argued that Section 76-10-915(1)(f) was added to the Utah Antitrust Act to assure "that all units of government would be immune from the Utah Antitrust Act,"6 and that Article XII, Section 20 of the Utah Constitution was intended only as a general statement of policy, and not as a self-executing provision creating a private right of action. The County Defendants also contended that the term "municipality" in Section 76-10-915(1)(f) has the meaning that term has acquired under federal case law applying the Sherman Act, not the meaning given it under other provisions of the Utah Code. According to the County Defendants, the term "municipality" is defined under federal law to mean all political subdivisions, and that a county and its special service districts therefore constitute municipalities that are exempt from antitrust scrutiny under Section 76-10-915(1)(f) of the Utah Act.

JUDGE HILDER'S SECOND OPINION
On May 27, 2003, Judge Hilder reversed his prior ruling. In his second opinion, Judge Hilder held that Article XII, Section 20 of the Utah Constitution was merely a statement of policy, and was not self-executing after all. This finding was based on Judge Hilder's view that the legislative history of Article XII, Section 20 lacked any evidence of an intent to craft a self-executing provision, even though the language of the provision, when considered alone, suggests that it is self-executing and prohibitive. Turning to the scope of immunity under Section 76-10-915(1)(f), Judge Hilder concluded that while the plain meaning of the term "municipality" is a city or town, the legislative intent of the word "municipality" trumps that plain meaning. Judge Hilder based his analysis on the following floor debate statement from Senator Thorpe Waddingham, the bill's sponsor:

One of the reasons is the legislation we passed two years ago dealing with IPP. And a recent federal case [City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978)], that I have not read, but which has been called to my attention, that in some cases makes municipalities comply with certain sections of the federal antitrust legislation. This - one of the purposes, which I hope that this particular amendment would accomplish was to remove any question as to whether or not its' [sic] a[t] variance with the Interlocal Cooperation Act that we passed two years ago.7

According to Judge Hilder, because the United States Supreme Court in City of Lafayette used the word "municipalities" in some instances to refer to "units of local government," Senator Waddingham must have intended the word "municipality" in Section 76-10-915(1)(f) to include all units of local government, including a county and its special service districts.8

Summit Water moved Judge Hilder to reconsider his second opinion. In their papers, Summit Water argued that Judge Hilder's second opinion was insufficient to dismiss Summit Water's case. Summit Water took issue first with Judge Hilder's conclusion that City of Lafayette interpreted the word "municipality" to mean all units of local government rather than just cities and towns. Summit Water pointed specifically to passages in City of Lafayette where the word "municipality" was used in distinction from the term "county." Summit Water also submitted an affidavit from Senator Waddingham stating that he intended the term municipality to refer only to cities and towns.

Summit Water also argued that even if the term "municipality" did include all political subdivisions, including the County and Mountain Regional, Judge Hilder's ruling entirely ignored the second prong of the exemption requiring the alleged anticompetitive conduct to be "authorized or directed by state law."

In response to the latter argument, the County Defendants cited to general zoning and authorizing statutes, arguing that these statutes "authorized or directed" their conduct, and that they were therefore exempt from liability under the Utah Antitrust Act. Summit Water argued that such general grants of authority were insufficient to immunize per se tying of water and planning. Moreover, Summit Water contended that if all political subdivisions were immune from the Antitrust Act, it would not make sense for the Legislature to include in the statute, Section 76-10-919, immunizing political subdivisions from monetary damages. Why, Summit Water asked, would the statute limit damages for an entity that is immune from suit?

JUDGE HILDER'S THIRD OPINION
Judge Hilder denied Summit Water's request for reconsideration of his second order, reaffirming his ruling that the term "municipality" in Section 76-10-915(1)(f) includes all political subdivisions and his conclusion that Article XII, Section 20 of the Utah Constitution is not self-executing and does not create a private right of action. Judge Hilder went on to address the "authorized or directed" prong of Section 76-10-915(1)(f), concluding that in order for an activity of a political subdivision to satisfy this requirement "it is necessary only that a political subdivision act pursuant to a general state statute."9 Thus, after three judicial opinions on the issue of local government immunity under Section 76-10-915(1)(f) of the Utah Antitrust Act, Summit Water's claims were dismissed, and the parties proceeded to face off before the Utah Supreme Court.

THE BRIEFING BEFORE THE SUPREME COURT
Although the Supreme Court's opinion is a lucid statement of antitrust jurisprudence in and of itself, its analysis is better understood when read in light of the briefs submitted by the parties.

1. Summit Water's Opening Brief on Appeal
Summit Water's opening brief began by focusing on the definition of municipality under Section 76-10-915(1)(f). Summit Water invoked two principles of statutory interpretation commonly accepted by the Utah courts: (1) courts must first look to the plain meaning of a statute, and should not consider legislative history when the words of a statute are unambiguous; and (2) antitrust exemptions should be narrowly construed.10 Under these basic principles of law, Summit Water argued that the term "municipality" in Section 76-10-915(1)(f) should be limited to cities and towns, because that is how the term is used, virtually without exception, in the Utah Code. Summit Water further contended that there was little to support the claim that Senator Waddingham was even referring to City of Lafayette in his floor comments, and that the United State Supreme Court used the term "municipality" to mean only cities and towns in some passages of that opinion.

Summit Water spent only three pages on what would become the central issue of the Supreme Court's opinion, whether a general authorizing statute is sufficient to satisfy the "authorized or directed" requirement of Section 76-10-915(1)(f). The remaining sections were devoted to supporting the analysis of Judge Hilder's first opinion, and contending that the legislative history of Article XII, Section 20 of the Utah Constitution did not undermine Judge Hilder's original finding that Article XII, Section 20 was self executing.

2. The Utah Attorney General's Amicus Brief
The Utah Attorney General filed an Amicus Brief in which it argued that Judge Hilder's opinion was correct with respect to the interpretation of the word "municipality," and supported Judge Hilder's conclusion that Article XII, Section 20 of the Utah Constitution was not self-executing. The Attorney General took issue with Judge Hilder, however, on whether a general planning and zoning statute can immunize a county and its special service district from an illegal tying arrangement or an attempt to monopolize the market for culinary water. The Attorney General argued that the test for what satisfies the "authorized or directed" prong of Section 76-10-915(1)(f) should be the same as the test applied to state action immunity under federal law, noting that the Utah Antitrust Act was patterned after the federal Sherman and Clayton Acts,11 and specifically directs that it be interpreted in light of federal law.12 The Attorney General also pointed out that the words "authorized or directed" are lifted directly out of City of Lafayette, a case addressing state action immunity under federal law.

The Attorney General next addressed how the phrase "authorized or directed" had been applied under federal law. He argued that federal law requires that the authorizing statute must reflect a state policy to displace competition, and that this state policy must be "clearly articulated and affirmatively expressed."13 The Attorney General contended that the general zoning and planning statutes cited by Summit County were insufficient to reflect a state policy that favored tying, or the creation of a single regional water supplier at the expense of private suppliers.

3. The County Defendants' Brief on Appeal.
The Attorney General's brief shifted the focus in the further briefing from the constitutional issues, and the definition of municipality under Section 76-10-914(1)(f), to the issues of (i) whether Utah's exemption should be interpreted in light of federal law, and (ii) whether under federal law, a general planning and zoning statute satisfies the "authorized or directed" requirement of the statute.

The County Defendants responded to the Attorney General's brief with a two part argument.15 First, the County Defendants contended that the exemption set forth in Section 76-10-915(1)(f) should not be interpreted in light of federal law because the intent was to give municipalities more immunity than that granted by the state action doctrine under City of Lafayette. Second, the County Defendants argued that even if Section 96-10-915(1)(f) is interpreted in light of federal law, the County Defendants should still be immune from the Utah Antitrust Act because only a general authorizing statute is required for immunity under federal law.

The County Defendants' argument was based entirely on its rendition of the history of the state action doctrine under federal law, and its relationship to the Utah Antitrust Act. The County Defendants' rendition began with Parker v. Brown, 317 U.S. 341 (1943), the first Supreme Court case to consider state action immunity. In Parker, the Supreme Court held that activities that are both authorized by a state legislature and supervised by the state are exempt from liability under the Sherman Act. In 1978, the Supreme Court rendered its opinion in City of Lafayette, holding that municipalities are exempt from the federal antitrust laws only when they are "authorized or directed" in the alleged misconduct by the state. The County Defendants argued that in the 34 years between Parker and City of Lafayette, municipalities enjoyed full immunity from the federal antitrust laws.

By assuming that municipalities were totally exempt from federal antitrust scrutiny prior to 1978, the County Defendants were able to argue that City of Lafayette increased the exposure of local governments to the federal antitrust laws, rather than reduced it. This lead logically to the County Defendants' argument that, when the Utah Legislature added Section 76-10-915(1)(f) to the Utah Act in 1979, it was trying to insure that municipalities remained fully exempt, as the County Defendants contended they were under federal law prior to City of Lafayette. In particular, the County Defendants argued that Senator Waddingham wanted to protect the IPA from claims that it was engaging in illegal collective activity by organizing 23 Utah rural electricity producers under the Interlocal Cooperation Act, and added the phrase "the activities of a municipality [are exempt] to the extent authorized or directed by state law" to give municipalities broader protection than that afforded under federal law after City of Lafayette.

Having made their pitch for full immunity, the County Defendants turned to Summit Water's argument that Section 76-10-919, limiting damage awards against municipalities, is rendered superfluous if municipalities are exempt in the first instance. The County Defendants argued that liability under the Utah Antitrust Act should apply only where the unit of local government acted without any authorization, general or otherwise. According to Summit County, only such ultra vires action would subject the local government to liability under the Utah Act, and only then would Section 76-10-919 apply.

Finally, the County Defendants claimed that in City of Columbia v. Omni Outdoor Advertising, 499 U.S. 364 (1991), the United Sates Supreme Court "retreat[ed] from the rigorous 'clear articulation' standard" of City of Lafayette, and held, effectively, that only a general zoning statute was required to confer immunity.15

4. Summit Water's Reply Brief
Summit Water focused almost its entire reply on attacking the County Defendants' version of the history of the federal state action immunity doctrine. Summit Water attacked two prongs of Summit County's contention. First, Summit Water argued that Section 76-10-915(1)(f) should be interpreted strictly in light of current federal law. Second, Summit Water contended that under current federal antitrust law, municipalities must be "authorized or directed" by a state statute to receive immunity. According to Summit Water, the authorization must come from more than a general zoning statute, and the anticompetitive actions complained of must be a "foreseeable result" of the activity actually authorized before immunity will attach.

Summit Water attacked the County Defendants' underlying premise that municipalities were fully immune from antitrust scrutiny prior to City of Lafayette. Summit Water argued that contrary to the contention of the County Defendants, Parker did not address municipalities at all, and that it was simply assumed by lower courts in the thirty-plus years prior to City of Lafayette that municipalities were to be treated like other non-state entities, and to receive immunity only if its actions were authorized and supervised by the state.16 According to Summit Water, what City of Lafayette actually did was broaden Parker immunity for municipalities by removing the supervision requirement, but retaining the authorized or directed requirement.

Summit Water argued, what Senator Waddingham was trying to do by introducing Section 76-10-915(1)(f) was to increase the scope of municipal immunity so that it conformed with the federal standard. That is why he added the words "to the extent authorized or directed" by state law, the exact language used in City of Lafayette. Summit Water argued that if Senator Waddingham wanted unbridled immunity for municipalities, his amendment simply would have said that all municipal activities are exempt.17 Summit Water claimed that this interpretation is the only way to make sense of Senator Waddingham's statement that "municipalities . . . [should] be on the same card as activities conducted by utilities" because utilities are not exempt from federal antitrust law unless their activities are regulated by the state.

The briefing framed two critical questions for the Supreme Court. First, should the Utah Antitrust Act be interpreted strictly in light of federal law? Second, what is the current federal standard for municipal immunity? Both sides agreed that all federal cases up to the Supreme Court's 1991 opinion in City of Columbia required municipal action to be authorized or directed by the state to qualify for immunity, although they disagreed on what "authorized and directed" meant. The two sides also differed on the standard set forth in City of Columbia. The County Defendants argued that City of Columbia dispensed with the authorized and directed requirement and held that a general authorization like zoning was enough; while Summit Water relied on the following language from City of Columbia itself to contend that it did no such thing: "Besides authority to regulate, however, the Parker defense also requires authority to suppress competition - more specifically, clear articulation of a state policy to authorize anticompetitive conduct."18 This was the issue that Supreme Court would ultimately decide.

THE SUPREME COURT OPINION
The Utah Supreme Court concluded in its November 4, 2005 opinion that for a municipality to be exempt under Section 76-10-915(1)(f) of the Utah Antitrust Act, the municipality's actions must be authorized or directed by a state statute. Consistent with federal law, the Utah Supreme Court held that the authorizing statute must also be specific enough such that the complained of conduct is a foreseeable result of the authorization.19

The Court's analysis of the authorized or directed language in Section 76-10-915(1)(f) began by holding that the Utah Antitrust Act should be interpreted strictly in light of federal antitrust law. As noted by the Court, such interpretation is directed by Section 76-10-926 of the Utah Act: "The legislature intends that the courts, in construing this act, will be guided by interpretations given by the federal courts to comparable federal antitrust statutes and by other state courts to comparable state antitrust statutes."

Having determined that all of Section 76-10-915(1)(f) should be interpreted in light of federal antitrust law, the Court turned to an analysis of what the phrase "authorized or directed" means under federal law.20 The Court began by noting that under the City of Lafayette opinion, a political subdivision is exempt from antitrust scrutiny only when it is acting "on behalf of the state rather than its own parochial interests."21 The Court observed the tendency for "local governments to act in their own parochial interests rather than in the interest of the state as a whole,"22 a local unit of government cannot be exempt under state immunity whenever it acts. Noting that state action immunity is based on principles of federalism, and that local governments have immunity only to the extent they act on behalf of the state, the Utah Supreme Court concluded that "[the] state action exemption from our state antitrust law . . . [must] be expressly provided."23

The Court then articulated the standard for determining whether a unit of local government is acting on behalf of the state. According to the Court:

[A]n adequate state mandate for anticompetitive activities of . . . subordinate governmental units exists when it is found from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of.24

The Court turned to cases subsequent to City of Lafayette for guidance in determining when a state legislature can be said to "contemplate" the activities "complained of." The Court looked specifically at Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985), wherein the United States Supreme Court held that municipal conduct is immune when it is a "foreseeable result" of a state statute. Relying on Town of Hallie and other federal cases, the Court determined that while foreseeability does not require "a specific detailed legislative authorization,"25 and a court need not examine whether a municipal act is "procedurally correct" before granting immunity under Section 76-10-915(1)(f), more is required for immunity than a neutral, general authorizing statute.26 According to the Court, the "foreseability" inquiry adopted by the United States Supreme Court in Town of Hallie provided the appropriate middle ground.27 Under that analysis, the Utah Legislature is not be expected to enact detailed statutes specifically exempting the municipal action complained of, but there must be some indication that the anticompetitive conduct is a natural and probable result of the powers granted municipalities thereunder.

Having determined that the federal "foreseeability" analysis applied equally under the Utah Act, the Utah Supreme Court applied it to the case at hand.28 The Court conducted an analysis of the Special Service District Act,29 and the County Land Use, Development, and Management Act ("CLUDMA"),30 the two statutes under which the County Defendants claimed they were "authorized and directed" to act. Regarding the Special Service District Act, the Court concluded that while the statute authorized counties to "establish a special service district for the purpose of providing [water] within the area of the special service district,"31 and gave the district the power to enter contracts, construct facilities and "exercise all powers of eminent domain possessed by the county,"32 there is no indication that districts were authorized or expected to use those powers to advance their own growth and hinder competition.33 Turning to CLUDMA, the Court determined while the statute (a) authorized counties to "enact all ordinances, resolutions and rules and . . . enter into other forms of land use controls and developments agreements that they considered appropriate for the use and development of land within the unincorporated areas of the county,"34 (b) requires a county to "enact an ordinance establishing a countywide planning commission,"35 and (c) mandates that a county "prepare and adopt a comprehensive, long-range general plan" that "may provide for . . . the efficient and economical use, conservation, and production of the supply of . . . water,"36 nothing suggests that the county may use those powers to force developers "to accept water service they may or may not desire."37

In essence, the Court held that while the cited statutes clearly allowed the County to establish a water company and enact reasonable measures to conserve and protect water resources, the Legislature did not contemplate that the County Defendants would, as a natural and probable result of those powers, engage in tying and other anticompetitive action to displace competition and create a single, regional water provider:

We can find no other statute within either of these Acts that contemplate[s] any connection between a county's development activities and its favoring of special service districts that it has established. The statutory scheme does not reveal a state policy of allowing counties to displace competition with a special service district unless the special service district is successful through its own competitive efforts in acquiring an exclusive market share within its area.38

Accordingly, the Court concluded that the anticompetitive conduct complained of by Summit Water was not a "foreseeable result" of the Special Service District Act or CLUDMA, and that the County Defendants were not, therefore, immune from antitrust scrutiny under Section 76-10-915(1)(f) of the Utah Act. The Court therefore reversed Judge Hilder, clearing the way for Summit Water to proceed with its claims against the County Defendants.

IS THE SUPREME COURT'S DECISION CAUSE FOR ALARM?
The Utah Supreme Court's opinion in Summit Water is not alarming; rather, it places interpretation of the Utah Antitrust Act squarely in the mainstream of antitrust jurisprudence. By interpreting our antitrust act in light of federal antitrust law as intended by the Legislature, the opinion gives antitrust lawyers in Utah a known and developed body of case law on which to understand the state prohibitions and immunities, and allows Utah businesses to operate in an environment of greater certainty. The intent of the Legislature to interpret the antitrust act in light of federal law is inescapable. The Utah Antitrust Act is patterned after the Sherman and Clayton Acts, and contains a specific provision calling for interpretation under federal law. Moreover, and as recognized by the Utah Supreme Court, the words of Section 76-10-915(1)(f) are themselves imported from City of Lafayette, a federal antitrust case.

Mainstream antitrust opinion is that local governments are not immune from federal antitrust law unless they act pursuant to a state statute that contemplates the anticompetitive conduct complained of.39 It is generally agreed among antitrust practitioners that the "foreseeability" test applies under current federal law, and that City of Columbia did not alter the result, but rather reaffirmed that test.40 Thus, by adopting the current federal standard, the Utah Supreme Court simply maintained Utah's presence in the mainstream of antitrust law and effectuated the Legislature's clear intent that the Utah Antitrust Act be interpreted consistent with federal antitrust law.

The complicated fact pattern in the City of Columbia case can be confusing and may have led the County Defendants (and others) astray. The statutory scheme at issue in City of Columbia was a general statute regulating billboard advertising, not a specific statute authorizing a barrier to entry. The city was specifically authorized to control the amount of billboard advertising available within its boundaries. Omni was a billboard advertiser that claimed it was prevented from entering the market as a result of such control. The critical feature in City of Columbia, however, was that when a city is given the power to restrict billboard advertising, an obvious and foreseeable result is less available advertising space. This reduction in space, in turn, could naturally lead to less billboard advertising firms in the market. Thus, the anticompetitive effect that Omni complained about, a barrier to entry, was a foreseeable result of the authorizing statute.

Support for the Utah Supreme Court's adoption of the foreseeability standard is also found in the legislature history of Section 76-10-915(1)(f) itself. In proposing that section, Senator Waddingham was apparently concerned that the IPA formed under the Interlocal Cooperation Act might be found to violate the antitrust laws. The Utah Supreme Court's decision in Summit Water is entirely consistent with Senator Waddingham's concern. Presumably, any antitrust action brought against the IPA would be premised on the allegation that it constituted a price-fixing conspiracy among the 23 city members. Such an action would be immune from liability under Section 76-10-915(1)(f) under the Supreme Court's reasoning in Summit Water, however, because it is foreseeable that a law allowing cities to combine to form a single entity to provide electricity would result in the cities coordinating the pricing and delivery of that electricity.

Thus, Utah's political subdivisions have little to fear from the Utah Supreme Court's opinion. Consistent with federal law, a political subdivision will be subject to liability under the Utah Act only when it is engaged in activities that one could not "foresee" to result from its core authorized activities, and even then it will be immune from money damages.41 As discussed above, it is foreseeable that an electric cooperative will collectively set prices and output, and thus the activities of the IPA are likely immune from antitrust scrutiny under Section 76-10-915(1)(f) of the Utah Act. By contrast, it would probably not be foreseeable for the cooperative to require customers to buy groceries from Smith's as a condition of receiving electricity, and to then require Smith's to, in turn, provide side payments to the cooperative. Such egregious conduct would be subject to state antitrust scrutiny under the Supreme Court's reasoning in Summit Water (but would be exempt under the full immunity urged by the County Defendants). As this example demonstrates, political subdivisions need be concerned about the Supreme Court's decision in Summit Water only when they stray far afield from their authorized activities, and engage in conduct that unforeseeably harms competition in a private market.

IS THE SUPREME COURT'S HOLDING GOOD PUBLIC POLICY?
The Supreme Court's opinion establishes sound public policy for the State of Utah. While the parties to the case disagreed on whether Article XII, Section 20 of the Utah Constitution was self-executing, no one disputed that it was, at minimum, a powerful statement of policy. The first sentence of the provision states:

It is the policy of the State of Utah that a free market system shall govern trade and commerce in this State to promote the dispersion of economic and political power and the general welfare of all the people.

Full local government immunity from the State's antitrust act would be antithetical to a policy of promoting a free market system. Full immunity would provide no state remedy for parochial local interests that could potentially subvert the free market. As an extreme example, full local government immunity would mean that there would be no state remedy for a local government that sought to impose a government-directed economy (i.e., socialism within its jurisdiction). The political subdivision could simply claim that it was authorized to do so under its broad police powers. Such a result could not be reconciled with the policy of Utah's constitution.

Finally, there is no good reason why the State Legislature would want to take all decision-making power out of its hands and grant political subdivisions absolute immunity. The Utah Supreme Court's opinion in Summit Water and federal antitrust law provide a reasonable middle ground. Under the Supreme Court's ruling all foreseeable actions by a political subdivision are immune from antitrust scrutiny, but if the political subdivision's actions are unexpected or unforeseeable, and will reduce competition in the State, then the Legislature gets the chance to pass on it and determine whether it should be allowed. Because federal law will likely apply in the case of an unforeseeable act in any event, this scheme places little or no additional burden on Utah's political subdivision, but provides an important protection for free enterprise in the State as required by the Utah Constitution.

As detailed below, the Supreme Court's decision also places Utah in the mainstream of other states on this issue.

LESSONS FROM OTHER STATES
A survey of state action immunity as it is applied in the other forty-nine states and the District of Columbia merely confirms Utah's place in the mainstream of antitrust jurisprudence after the Utah Supreme Court's decision in Summit Water. This survey reveals that 30 other states plus the District of Columbia have adopted limited immunity for local governments, applying a "foreseeability" test similar to that articulated by the United States Supreme Court in City of Lafayette and City of Columbia, and like that adopted by the Utah Supreme Court in Summit Water.42 Virginia's antitrust statute, for example, immunizes "conduct that is authorized, regulated or approved (1) by a statute of this Commonwealth, or (2) by an administrative or constitutionally established agency of this Commonwealth or of the United States having jurisdiction of the subject matter and having authority to consider the anticompetitive effect, if any, of such conduct."43

New Mexico's Antitrust Act similarly states:

Nothing contained in the Antitrust Act is intended to prohibit actions which are:

i. clearly and expressly authorized by any state agency or regulatory body acting under a clearly articulated and affirmatively expressed state policy to displace competition with regulation; and

ii. actively supervised by the state agency or regulatory body which is constitutionally or statutorily granted the authority to supervise such actions when the agency or regulatory body does not have any proprietary interest in the actions.44

The Alaska Restraint of Trade Act exempts "activities expressly required by a regulatory agency of the state," but only insofar as "the regulatory agency has given due consideration to the possible anticompetitive effects before permitting the activities."45 In Reppond v. City of Denham Springs, the Louisiana Court of Appeals held that state action immunity for local governments under Louisiana law extends only to those actions "performed pursuant to a state policy to displace competition with regulation or monopolistic service."46 Only 12 states appear to grant local governments greater immunity from their state antitrust laws than that provided under federal law and in Utah under Summit Water.47 California, for example, narrowly defines the term "person" in their antitrust statute to exclude municipalities and other political subdivisions, thereby exempting local governments entirely from the state's antitrust laws.48 Illinois' antitrust statute contains a broad exemption, completely immunizing "the activities of a unit of local government or school district and the activities of the employees, agents and officers of a unit of local government or school district."49 The remaining seven states, by contrast, provide no state action immunity at all,50 or extend immunity only to specific actions in specific industries.51

In sum, seven states provide less immunity, thirty states and the District of Columbia have essentially the same level of immunity, and twelve states have more immunity than Utah. From 1924 to the present, however, there have been only two reported state antitrust cases involving local governments in the seven states affording less immunity than Utah,52 eighteen reported state antitrust cases involving local governments in the thirty states affording the same immunity as Utah,53 and twenty-seven reported state antitrust cases involving local governments in the twelve states affording more immunity than Utah.54 These figures suggest that a more restrictive state action immunity standard is not likely to result in a higher number of antitrust lawsuits being filed against local governments,55 and that the number of antitrust lawsuits filed against Utah's political subdivisions is not likely to increase as a result of the Utah Supreme Court's decision in Summit Water.

CONCLUSION

As set forth above, the Utah Supreme Court's decision in Summit Water constitutes a well-reasoned decision appropriately grounded in federal antitrust law, and supported by the clearly articulated public policies of the Utah Constitution and express intention of the Legislature. The opinion confirms Utah's place in the mainstream of antitrust jurisprudence with respect to the level of immunity afforded municipal governments throughout the United States. There is no reason to believe that Utah's local governments will be exposed to increased litigation as a result of Summit Water, be unduly hampered in their day to day activities, or prevented from effectively serving their constituents' needs. So long as political subdivisions do not stray far afield from their authorized activities, and engage in conduct that unforeseeably harms competition in a private market, they have nothing to fear from the Supreme Court's decision in Summit Water.

Author's Note: The authors are currently part of the team that represents Summit Water, but did not represent Summit Water before the Utah Supreme Court, or in the lower court proceedings that gave rise to the appeal. The authors would like to thank Zack L. Winzeler, a second year law student at the University of Utah, S.J. Quinney College of Law, for his contributions to this article.

1. The Supreme Court left two issues unresolved. The first is which political subdivisions of the State of Utah constitute municipalities. The second is the import of the antitrust provision of the Utah Constition, Article XII, Section 20. We do not address the issue of immunity for the non-governmental defendants, as that issue is currently being litigated.

2. See 15 U.S.C.A ¤ 1, et seq.

3. See Utah Code Ann. ¤ 76-10-914.

4. After the 1992 amendment was added to Utah's Constitution, antitrust attorneys speculated about its import, and whether it is self-executing, creating a private right of action. As far as the authors are aware, however, Summit Water is the first plaintiff to actually bring antitrust claims under the Utah Constitution itself. This approach was attacked by Summit County, and its efficacy remains unresolved.

5. Section 76-10-915(1)(f) states: "This act may not be construed to prohibit . . . the activities of a municipality to the extent authorized or directed by State law."

6. Mem. Supp. Mountain Regional Defendants' Motion to Dismiss and Motion to Reconsider or in the Alternative for Summary Judgment at 12-13.

7. Floor Debate, 43rd Utah Leg., Gen. Session, February 5, 1979.

8. Judge Hilder also ruled that an antitrust plaintiff must plead, as part of the essential elements of its claim, that the alleged anticompetitive actions of a local government are not authorized or directed by state law. The Supreme Court reversed this ruling, holding that the exemptions provided by Section 76-10-915 "are to be pleaded by a defendant as an affirmative defense." 2005 UT 73, ¦ 47.

9. Order on Plaintiff's Motion for Reconsideration and to Amend and Vacate and for New Trial of the Court Ruling and Order of 27 May 2003 at 2, 93.

10. Interestingly, this principle was pronounced by the Utah Supreme Court in Evans v. State of Utah, 903 F.2d 177 (Utah 1998), a case involving an exemption under Section 76-10-915(1).

11. For the Clayton Act, see 15 U.S.C.A. ¤ 12.

12. See Utah Code Ann. ¤ 76-10-926.

13. Brief of Utah Attorney General as Amicus Curiae at 38 (quoting City of Lafayette, 435 U.S. at 410).

14. Summit County's arguments concerning the broad interpretation of "municipality," and non-self executing nature of Article XII, Section 20, were the same as in their briefs before Judge Hilder.

15. Brief of Appellees at 62-63 & n. 32.

16. See Reply Br. Of Appellants at 18 n. 7 (citing lower court decisions prior to City of Lafayette).

17. Reply Br. of Appellant at 22.

18. 499 U.S. at 372-73 (quoted in Reply Br. of Appellant at 28).

19. Because it found in favor of Summit Water on this issue, the Court held that it did not need to reach the issue of whether the word municipality includes all units of local government, or whether Article XII, Section 20 of the Utah Constition is self executing. While the opinion sheds virtually no light on the constitutional issues, it noted in dicta that the term municipality is likely limited to mean city or town. 2005 UT 73, ¦ 30 ("For the reasons set forth above, we cannot conclude that the term 'municipality' in Section 76-10-915(1)(f) is ambiguous, nor, if it were ambiguous would we be likely to interpret the term broadly."). Because the Court could not find "any logical reason for including cities and towns in the municipality exemption but excluding other units of local government," the Court decided to "reserve an ultimate decision on the meaning of 'municipality' for another day." Id.

20. While not explicit, the Court effectively rejected the notion that City of Lafayette narrowed a pre-existing municipal immunity. 2005 UT 73, ¦ 35 & n.7.

21. Id. at ¦ 35.

22. Id.

23. Id.

24. Id. at ¦ 32 (quoting City of Lafayette, 435 U.S. at 415).

25. Id. at ¦ 39.

26. Id.

27. Id. at ¦ 40.

28. Id. at ¦¦ 42-44.

29. Utah Code Ann. ¤ 17A-1-101 et seq.

30. Id. ¤ 17-27-101 et seq.

31. Id. ¤ 17A-2-1304(1)(a)(i).

32. Id. ¤¤ 17A-2-1314(1)(b), (c) & (d).

33. 2005 UT 73, ¦ 43 & 45.

34. Utah Code Ann. ¤ 17-27a-102(1)(b).

35. Id. ¤ 17-27a-301.

36. Id. ¤ 17-27a-401(1) & (2)(c)(i).

37. 2005 UT 73, ¦ 44.

38. Id. at ¦ 45.

39. Antitrust Developments (Fifth) Vol. II at 1220 ("The 'foreseeable result' test was reaffirmed in City of Columbia v. Omni Outdoor Advertising in a dispute over a city restriction on billboard advertising."). See also Areeda & Hovenkamp, Antitrust Law at ¦ 22563, "Hallie had concluded that local government conduct is state authorized if it is a "foreseeable result" of the state's grant of local authority to operate in the field. These words were repeated in the Supreme Court's Columbia decision, which found restrictions on competition and even creation of a virtual advertising monopoly to be foreseeable results of a state grant of zoning power to regulate land use."

40. See id.

41. Utah Code Ann. ¤ 76-10-919(4).

42. See Alaska Stat. ¤ 45.50.568 (1998) (Alaska Restraint of Trade Act does not forbid "activities expressly required by a regulatory agency of the state."); Colo Rev. Stat. ¤ 6-4-108(4) (1997) (Colorado's "Catch-all Exemption" adopting the federal common law standard for state action immunity); Del. Code Ann. tit. 6, ¤ 2104(b) (1999) (exempting from antitrust liability conduct required by any statute of Delaware or any conduct approved or required by a regulatory body); Iowa Code ¤ 553.6(5) (1999) (Antitrust liability does not prohibit "[t]he activities of a city or county . . . when acting within its statutory or constitutional home rule powers . . . ."); Kan. Stat. Ann. ¤ 12-205(b) (1991) (exempting municipalities that provide and regulate "certain services and activities" from antitrust scrutiny); Ky. Rev. Stat. Ann. ¤ 367.176(2) (1996) (Kentucky antitrust act shall not apply to "activities authorized or approved under any federal or state statute or regulation."); Me. Rev. Stat. Ann. tit. 5, ¤ 208 (West 1989 & Supp. 1997) (exempting transactions otherwise permitted under laws of the State of Maine or the United States); Mass. Gen. Laws Ann. ch. 93, ¤ 7 (West 1997) (Massachusetts antitrust law does not apply to "[a]ny activities which are exempt from any of the federal antitrust laws . . . ."); Mich. Comp. Laws Ann. ¤ 445.774(4) (West 1989) ("This [antitrust] act shall not apply to a transaction or conduct specifically authorized under the laws of [Michigan] or the United states . . . ."); Minn. Stat. ¤ 325D.55, subd. 2(a) (1999) (Minnesota antitrust law does not apply to "actions or arrangements otherwise permitted, or regulated by any regulatory body or officer acting under statutory authority of [Minnesota] or the United States."); Mo. Rev. Stat. ¤ 416.041.2 (1994) (Missouri antitrust law does not apply to "activities or arrangements expressly approved or regulated by any regulatory body or officer acting under statutory authority of [Missouri] or of the United States."); Neb. Rev. Stat. ¤ 59-830 (1995) (exempting actions taken pursuant to state and federal law); Nev. Rev. Stat. ¤ 598A.040(3)(a)-(c) (1994) (Nevada antitrust law "does not apply to conduct which is expressly authorized, regulated or approved by (a) a federal or Nevada statute, (b) an ordinance of any Nevada city or county, or (c) a federal or Nevada state, city or county administrative agency having jurisdiction of the subject matter."); N.H. Rev. Stat. Ann. ¤ 356:8-a (1999) (exempting any activities that are "permitted, authorized, approved, required or regulated by a regulatory body acting under a federal or state statutory scheme"); N.J. Stat. Ann. ¤ 56:9-5.c (West 1989 & Supp. 1998) (exempting any activity "directed, authorized or permitted by any law of [New Jersey]"); N.M. Stat. ¤ 57-1-16 (Michie 1995) (New Mexico antitrust law does not extend to actions which are "clearly and expressly authorized by any state agency or regulatory body . . . and actively supervised by the state agency or regulatory body . . . ."); N.D. Cent. Code ¤ 40-01-22 (1983) (adopting state action immunity in North Dakota by incorporating federal antitrust law); Or. Rev. Stat. ¤ 646.740(6) (Supp. 1998) (exempting "activity specifically authorized under state law or local ordinance"); R.I. Gen. Laws ¤ 6-36-8 (1992) ("Any activity . . . exempt from the provisions of the antitrust laws of the United States shall be similarly exempt from the provisions of this chapter."); S.C. Code ¤ 39-5-350 (1985) (exempting "actions or transactions permitted under laws administered by any regulatory body . . . of [South Carolina] or the United States . . . ."); Tex. Bus. & Com. Code Ann. ¤ 15.05(g) (West Supp. 1998) (adopting federal antitrust law exemptions for the State of Texas); Va. Code Ann. ¤ 59.1-9.4(b) (Michie 1998) (exempting from antitrust liability "conduct that is authorized, regulated or approved (1) by a statute of this Commonwealth . . . ."); W. Va. Code ¤ 47-18-5 (1996) ("Nothing in this article shall be construed to forbid the existence and operation of . . . any person whose activities or operations are regulated . . . pursuant to the laws of [West Virginia] or of the United States . . . ."); Laidlaw Waste Sys. v. City of Fort Smith, 742 F. Supp. 540, 541 (W.D. Ark. 1990) ("[M]unicipalities . . . are immune if they can 'demonstrate that their anti-competitive activities were authorized by the state . . . .'") (internal citation omitted) (interpreting Arkansas state law); In re Bates, 555 P.2d 640, 642 (Ariz. 1976) (applying federal state action immunity under state law); Alpert v. Boise Water Corp., 795 P.2d 298, 303 (Idaho 1990) (Municipalities acting pursuant to "an affirmatively expressed 'state policy to displace competition with regulation or monopoly public service'" are exempt from antitrust liability.) (internal citation omitted); Collins v. Main Line Bd. Of Realtors, 304 A.2d 493, 496 (Pa. 1973) (Pennsylvania antitrust law is based upon federal law and federal court decisions); Byre v. City of Chamberlain, 362 N.W. 2d 69, 75 (S.D. 1985) (State action exemption applies to "municipal action that furthers or implements clearly articulated and affirmatively expressed state policy."); Professional Ambulance Service, Inc. v. Blackstone, 400 A.2d 1031, 1033 (Conn. Super. Ct. 1978) ("The antitrust statutes . . . authorize an exception if the activity is 'specifically directed or required by a statute of this state, or of the United States.'") (quoting Conn. Gen. Stat. ¤ 35-31(b)); Reppond v. City of Denham Springs, 572 So. 2d 224, 229 (La. Ct. App. 1990) (State antitrust immunity extends only to those actions "performed pursuant to a state policy to displace competition with regulation or monopolistic service."); D.C. Code ¤ 28-4518 (1999) (exempting conduct or activity "specifically regulated, permitted or required by any regulatory body, agency, or commission acting under statutory authority of the District of Columbia or the United States.").

43. Va. Code Ann. 59.1-9.4(b) (Michie 1998) (emphasis added).

44. N.M. Stat. Ann. ¤ 57-14-7 (Michie 1995) (emphasis added).

45. Alaska Stat. ¤ 45.50.572(g) (1998) (emphasis added).

46. 572 So. 2d 224, 229 (La. Ct. App. 1990) (emphasis added).

47. See Ca. Bus. & Prof. Code ¤ 16702 (West 1997) (excluding municipalities and political subdivisions from the definition of "person" in the Cartwright Act, thus exempting them from state antitrust liability); Fla. Stat. ¤ 542.235(1) (West 1997) (exempting local governments from state antitrust liability); 740 Ill. Comp. Stat. 10/5(15) (West Supp. 1998) (exempting from antitrust liability "the activities of a unit of local government or school district"); Md. Code Ann. Com. ¤ 11-203(12) (1990 & Supp. 1997) (exempting "the activity of . . . [a] political subdivision of the State in furnishing services or commodities"); Big Island Small Ranchers Ass'n v. State, 588 P.2d 430, 436 (Haw. 1978) (holding that Hawaii's antitrust statute did not apply to actions taken by the state of Hawaii); B.F. Johnson Publishing Co. v. Mills, 31 So. 101, 102 (Miss. 1901) (holding that Mississippi's antitrust laws did not apply to the State of Mississippi or any of its statutory agencies); Thaxton v. Medina County Bd. of Educ., 488 N.E.2d 136, 137 (Ohio 1986) (the term "persons," as defined in Ohio's Valentine Act, does not include government entities); Board of Regents of the Univ. of Okla. v. NCAA, 561 P.2d 499, 504-05 (Okla. 1977) (recognizing state immunity from antitrust actions); Washington Natural Gas Co. v. Public Util. Dist. No. 1 of Snohomish County, 459 P.2d 633, 636 (Wash. 1969) (Washington antitrust law does not apply to municipal corporations, including counties, the state, and all of its political subdivisions); Kautza v. City of Cody, 812 P.2d 143, 146 (Wyo. 1991) (holding that Wyoming's antitrust statute did not apply to the City of Cody); Harvey & Corky Corp. v. Erie County, 56 A.D.2d 136, 139 (N.Y. App. Div. 4th Dep't 1977) (state government agencies are exempt from antitrust liability as long as they act pursuant to government's police power); Golden Rule Ins. Co. v. Long, 439 S.E.2d 599, 602 (N.C. Ct. App. 1993) (holding that no antitrust action may be brought against the State of North Carolina or its officials acting as "representatives of the State").

48. See, e.g., Penn v. City of San Diego, 188 Cal. App. 3d 636, 643 (1987).

49. 740 Ill. Comp. Stat. 10/5(15) (West Supp. 1998).

50. See Wis. Stat. Ann. ¤ 133.02 (defining "person" to include the state and its political subdivisions, all counties, cities, villages, towns, school districts, governmental agencies and bodies politic and corporate," and containing no statutory exemption for state action; see also generally Ind. Code Ann. ¤¤ 24-1-1-1 to 24-1-1-6 (1999); Mont. Code Ann. ¤¤ 30-14-201 to 30-14-224 (1999); 9 Vt. Stat. Ann. ¤¤ 2451 TO 2480(g) (1993); 30 ABA Section of Antitrust Law, State Antitrust Practice and Statutes ¤¤ 16, 28, 48 & 53 (2d ed. 1999).

51. Ala. Code ¤ 11-92A-12 (1994) (limiting state immunity to county industrial development authorities acting pursuant to their statutory authority); Tenn. Code Ann. ¤¤ 7-54-101 to -114 (1992) (limiting state immunity to passenger transportation services, energy production facilities, and waste disposal entities); Ga. Code Ann. ¤ 36-65-1 (1993) (limiting state immunity to public utilities).

52. Walker v. Bruno's, Inc., 650 S.W.2d 357 (Tenn. 1983); Town of Hallie v. City of Chippewa Falls, 314 N.W.2d 321 (Wis. 1982).

53. Miller's Pond Co., LLC, v. City of New London, 273 Conn. 786 (Conn. 2005); Cheryl Terry Enters. v. City of Hartford, 854 A.2d 1066 (Conn. 2004); Plummer v. City of Fruitland, 87 P.3d 297 (Idaho 2004); Alpert v. Boise Water Corp., 795 P.2d 298 (Idaho 1990); Crippen v. City of Cedar Rapids, 618 N.W.2d 562 (Iowa 2000); Water Development Co. v. Board of Water Works, 488 N.W.2d 158 (Iowa 1992); Neyens v. Roth, 326 N.W.2d 294 (Iowa 1982); Tri-State Rubbish v. Town of Gray, 632 A.2d 134 (Me. 1993); Byre v. City of Chamberlain, 362 N.W.2d 69 (S.D. 1985); Dill v. Board of County Comm'rs, 928 P.2d 809 (Colo. Ct. App. 1996); Reppond v. City of Denham Springs, 572 So. 2d 224 (La. Ct. App. 1990); Brown v. Town of Lexington, 1998 Mass. Super. LEXIS 716 (Mass. Super. Ct. 1998); Shapiro v. Middlesex County Ins. Fund, 704 A.2d 1316 (N.J. Super. Ct. App. Div. 1998); G&W, Inc. v. East Rutherford Borough, 656 A.2d 11 (N.J. Super. Ct. App. Div. 1995); Salt & Light Co. v. Mount Holly Township, 15 N.J. Tax 274 (N.J. Tax Ct. 1995); Calcaterra v. City of Columbia, 432 S.E.2d 498 (S.C. Ct. App. 1993); Courthouse Cafeteria, Inc. v. County of Fairfax, 3 Va. Cir. 56 (Va. Cir. Ct. 1982); Delaney v. City of Phoenix, 1985-2 Trade Cas. (CCH) ¦ 66,711 (Maricopa County Super. Ct. 1985).

54. Fisher v. City of Berkeley, 37 Cal. 3d 644 (Cal. 1984); ANA Towing, Inc. v. Prince George's County, 552 A.2d 1295 (Md. 1989); Fanelli v. City of Trenton, 641 A.2d 541 (N.J. 1994); Thaxton v. Medina County Bd. of Educ., 488 N.E.2d 136 (Ohio 1986); Fine Airport Parking, Inc. v. City of Tulsa, 2003-1 Trade Cas. (CCH) ¦ 73,977 (Okla. 2003); Elizabeth City Water & Power Co. v. Elizabeth City, 188 N.C. 278 (N.C. 1924); Washington Natural Gas Co. v. Public Util. Dist. No. 1 of Snohomish County, 459 P.2d 633 (Wash. 1969); Kautza v. City of Cody, 812 P.2d 143 (Wyo. 1991); Penn v. City of San Diego, 188 Cal. App. 3d 636 (1987); People ex rel. Freitas v. City of San Francisco, 92 Cal. App. 3d 913 (1979); Duck Tours Seafari, Inc. v. City of Key West, 875 So. 2d 650 (Fla. Dist. Ct. App. 2004); Davis v. Washington County, 670 So. 2d 136 (Fla. Dist. Ct. App. 1996); East Naples Water Systems, Inc. v. Board of County Comm'rs, 473 So. 2d 309 (Fla. Dist. Ct. App. 1985); East Naples Water Systems, Inc. v. Board of County Commissioners, 473 So. 2d 309 (Fla. 2d Dist. Ct. App. 1985); Alarm Detection Sys. v. Vill. of Hinsdale, 761 N.E.2d 782 (Ill. App. Ct. 2001); Elec. Inspectors, Inc. v. Vill. of Lynbrook, 293 A.D.2d 537 (N.Y. App. Div. 2002); Rea Constr. Co. v. City of Charlotte, 465 S.E.2d 342 (N.C. Ct. App. 1996); Carolina Water Serv. v. Town of Atlantic Beach, 464 S.E.2d 317 (N.C. Ct. App. 1995); Boykin Enters. Inc. v. City of Columbus, 1977 Ohio App. LEXIS 9220 (Ohio Ct. App. 1977); Elec. Inspectors, Inc. v. Vill. of Lynbrook, 293 A.D.2d 537 (N.Y. App. Div. 2002); American Consumer Industries, Inc. v. City of New York, 281 N.Y.S.2d 467 (N.Y. App. Div. 1st Dep't 1967); Harvey & Corky Corp. v. Erie County, 392 N.Y.S.2d 116 (N.Y. App. Div. 4th Dep't 1977); Stow v. Summit County, 590 N.E.2d 1363 (Ohio Ct. App. 1990); Atlantic-Inland, Inc. v. Town of Union, 483 N.Y.S.2d 612 (Sup. Ct. Broome County 1984); Professional Ambulance Service, Inc. v. Abramowitz, 328 N.Y.S.2d 467 (Sup. Ct. Niagara County 1972); Board of County Comm'rs of Wood County v. Toledo, 1993 WL 372243 (Ohio Ct. App. Wood County September 24, 1993); Michaels Bldg Co. v. City of Akron, 1987-2 Trade Cas. (CCH) ¦ 67,652 (Ohio C.P. Summit County 1987).

55. Indeed, it appears that local governments face more litigation in those jurisdictions that afford broader immunity. This may be because the political subdivisions in those jurisdictions feel more emboldened to act in an anticompetitive manner knowing they are likely to enjoy broad immunity from suit.