Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Title Insurance Purchasers Denied Supreme Court Review of Filed Rate Doctrine in Rate Fixing Suit, (Feb 19, 2013)

By Jeffrey May, J.D.

The U.S. Supreme Court will not take up the issue of the filed rate doctrine in the context of an alleged rate fixing conspiracy among title insurers in Delaware. Today, the Court denied a petition for certiorari filed by complaining Delaware home owners, seeking review of a decision of the U.S. Court of Appeals in Philadelphia (682 F.3d 229, 2012-1 Trade Cases ¶77,922). At the same time the Court denied the petition for review, it granted a request by consumer advocacy organization Public Citizen, Inc. to file an amicus brief (McCray v. Fidelity National Title Insurance Co., Dkt. 12-527).

The appellate court rejected the home owners’ claims on the ground that they were barred by the filed rate doctrine. The complaining home owners, who were required to purchase title insurance to obtain a mortgage, had alleged that the title insurers used the Delaware Title Insurance Rating Bureau (DTIRB), which compiles and analyzes statistical data from its members relating to their title insurance premiums, losses and expenses, as a vehicle for setting uniform rates. The home owners unsuccessfully argued that the filed rate doctrine, which precludes antitrust suits challenging rates filed with federal or state agencies, did not apply to Delaware title insurance rates.

In their petition for review, the home owners asked specifically whether the filed rate doctrine exempted a cartel from federal antitrust damages liability for price-fixed rates filed with a state agency, given that: (1) there was no meaningful review of the filed rates by the agency; (2) the agency had no statutory authority to award retrospective compensatory relief for the unlawful conduct; and (3) the price fixing would not be exempt under the state action doctrine due to the lack of supervision by the agency.

The home owners objected to the appellate court's determination that “the mere filing of rates under a state statutory scheme exempts antitrust conspirators from federal antitrust damages liability.” They contended that the Third Circuit's decision conflicted with the Ninth Circuit's decision in Brown v. Ticor Title Insurance Co. (982 F.2d 386, 1992-2 Trade Cases ¶70,081) and other appellate court decisions outside the title insurance context.

Attorneys: Richard M. Hagstrom (Zelle, Hofmann, Voelbel & Mason) for petitioners. Barry Ostrager (Simpson Thacher & Bartlett LLP) for respondents.

News: Antitrust