Amicus Brief in Fifth Circuit Tobacco Master Settlement Case

Josh Wright —  20 December 2010

Todd Zywicki and I recently filed (along with Keith Hylton, Fred McChesney, and TOTM’s own Thom Lambert) an amicus brief in support of certiorari in a Fifth Circuit Tobacco Master Settlement Case.  We argue that the state action exception to the antitrust laws, i.e. Parker immunity, should not be extended to cover a multistate government-created cartel such as this one.  The net impact of the MSA, with the help of the state AG’s, is to entrench a tobacco cartel and harm consumers.  As Todd points out in his post at the VC, Alan Morrison, Richard Epstein, and Kathleen Sullivan filed another brief in the same case challenging the multistate agreement under the Compact Clause of the Constitution.   We argue that the underlying logic of Parker v. Brown is that of competitive federalism and rejects the extension of immunity for a massive interstate cartel.