Antitrust Law Daily Wrap Up, ANTITRUST—D. Kan.: Kansas pesticide regulation not preempted by Sherman Act, (Jun 16, 2016)
Law Firms Mentioned:Law Office of James T. McIntyre | Office of Attorney General
By Edward L. Puzzo, J.D.
A Kansas Department of Agriculture regulation governing preconstruction termite treatment did not mandate conduct which was a per se violation of the Sherman Act in all cases, the federal district court in Wichita, Kansas has ruled. Thus, the regulation was not preempted (Schoenhofer v. McClaskey, June 14, 2016, Marten, J.).
A licensed pest control applicator, a woman who contracted for preconstruction termite treatment on her real estate, and the mother of children attending a high school treated with pesticides, all citizens of Kansas, brought a claim seeking to block enforcement of Kansas Department of Agriculture regulation K.A.R. Section 4-13-26. That regulation requires that each preconstruction application of pesticide for the control of termites establish both horizontal and vertical chemical barriers around such items and foundations, support piers, and other critical areas where structural components extend below grade.
Among other claims, the plaintiffs alleged that the Kansas Department of Agriculture implemented the regulation in order to "level the playing field so that everyone performed a pre-construction treatment the same way." Plaintiffs alleged that making all competitors perform a complete service was "retail price maintenance," a per se violation of the Sherman Act.
The defendant moved to dismiss, arguing that plaintiffs had not stated a valid claim under the Sherman Act because the Kansas regulation did not mandate prices or otherwise require anticompetitive behavior. The court noted that the plaintiffs' concession that they were not claiming a per se violation of the Sherman Act was fatal to their claim that the Sherman Act preempted the Kansas regulation. Under Rice v. Norman Williams Co., 458 U.S. 654 (1982), the court noted, a state law is preempted as conflicting with the Sherman Act only when the conduct contemplated by the statute is in all cases a per se violation. Consequently, plaintiffs' allegations failed to state a claim upon which relief can be granted and had to be dismissed.
The case is Civil Action No. 6:16-cv-01023-JTM-GEB.
Attorneys: James T. McIntyre (Law Office of James T. McIntyre) for Mary Ann Schoenhofer. John Wesley Smith (Office of Attorney General) for Jackie McClaskey, Kansas Secretary of Agriculture.
Cases: Antitrust KansasNews