A Fifth Circuit ruling that federal courts lacked jurisdiction to hear an appeal by the Louisiana Real Estate Appraisers Board of an FTC administrative decision rejecting the state regulatory agency’s assertion of state action immunity stands. Also left standing is a D.C. Circuit decision throwing out claims by Freedom Watch, Inc. that social media and technology companies agreed to suppress conservative content online.
The U.S. Supreme Court denied two petitions for review in antitrust cases today. One case concerns federal court review of an FTC administrative action. The other involves claims that Google, Facebook, Twitter, and Apple unlawfully agreed to suppress politically conservative content online in violation of the Sherman Act (Louisiana Real Estate Appraisers Board v. FTC, Dkt. 20-1018; Freedom Watch, Inc. v. Google Inc., Dkt. 20-969).
In the FTC enforcement action against the Louisiana Real Estate Appraisers Board (LREAB), the Court refused to overturn a Fifth Circuit ruling that a federal court lacked jurisdiction to hear an appeal by the LREAB of an April 10, 2018, FTC administrative decision on the grounds that the decision violated the Administrative Procedure Act. In that Commission decision, the FTC rejected the board’s assertion of state action immunity.
The FTC issued a complaint in 2017 against the LREAB, alleging that the group unreasonably restrained price competition for appraisal services in Louisiana. The board allegedly required appraisal fees to equal or exceed the median fees identified in survey reports commissioned and published by the board. After the Commission rejected the board’s assertion of state action immunity in the administrative proceeding, the LREAB sued the FTC in a federal district court, alleging the order violated APA. The district court granted the board’s motion and stayed the Commission’s proceedings pending the resolution of the Board’s APA claim. The FTC appealed, and the Fifth Circuit reversed. Administrative proceedings have since resumed.
Federal court jurisdiction to consider FTC decision. The Fifth Circuit held that the district court lacked jurisdiction because the board did not meet APA Section 704’s jurisdictional prerequisites. Section 704 of the APA permits non-statutory judicial review of certain "final agency action." The LREAB failed to show that the Commission’s interlocutory denial of state action immunity met the doctrine’s requirements. Although the Commission’s rejection of state action immunity was "conclusive," the LREAB failed to demonstrate that the issue of state action immunity was "completely separate from the merits" of the FTC’s antitrust action and that the decision was "effectively unreviewable on appeal."
The Board also argued that it was entitled to immunity from suit as a state agency, not a purely private party. The Board may rightly defend its entitlement to state action immunity, but it invoked the state action doctrine as a private party and not a state agency as it was an agency controlled by market participants. As a private party, the policy imperatives behind relieving the board from suit, as well as liability, did not apply. The collateral order doctrine had to be deployed narrowly and with skepticism, and state action immunity, in particular, though it may extend to private parties, exists principally to secure the full scope of political activity for state actors, according to the appellate court.
Another reason for rejecting the LREAB’s quest for collateral review was that this regulatory case was initiated by the FTC. Even if the board were a sovereign actor, it was paradigmatic that states retain no sovereign immunity as against the Federal Government. The April 10, 2018, order did not constitute final agency action under Section 704, and the collateral order doctrine did not apply. Consequently, the district court lacked jurisdiction over the board’s lawsuit.
The board’s question to the Court in its petition was whether and under what conditions orders denying state action immunity to public entities are immediately appealable under the collateral-order doctrine.
Suppression of conservative online content. The Court also rejected a petition from conservative group Freedom Watch, Inc., seeking to overturn dismissal of its claims that social media and technology companies Google, Facebook, Twitter, and Apple unlawfully agreed to suppress politically conservative content online in violation of the Sherman Act. Left standing is a decision of the U.S. Court of Appeals in Washington, D.C. that an unlawful agreement could not be inferred solely from the platforms’ parallel behavior of purportedly refusing to provide certain services to the plaintiffs, and that the plaintiffs did not explain how either of the "plus factors" they proffered showed an unlawful conspiracy. The appellate court also rejected a monopoly claim.
Attorneys: Seth David Greenstein (Constantine Cannon, L.L.P.) for Louisiana Real Estate Appraisers Board. Daniel Winik, U.S. Department of Justice, for the FTC. Larry Klayman (Klayman Law Group, P.A.) for Freedom Watch, Inc. Kenneth Winn Allen (Kirkland & Ellis, LLP) for Facebook, Inc. Ian Heath Gershengorn (Jenner & Block LLP) for Apple, Inc. Jonathan M. Jacobson (Wilson Sonsini Goodrich & Rosati, P.C.) for Twitter, Inc. John E. Schmidtlein (William & Connolly, LLP) for Google LLC.
Companies: Louisiana Real Estate Appraisers Bd.
MainStory: TopStory Antitrust GCNNews FederalTradeCommissionNews LouisianaNews MississippiNews TexasNews DistrictofColumbiaNews
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