The Supreme Court has a renewed interest in the state action
doctrine. After declining to clarify what types of state action are
exempt from federal antitrust scrutiny for years, the Supreme Court
agreed to hear its second case on the subject.
In February 2013, the Supreme Court issued its decision in
FTC v. Phoebe Putney Health System, Inc., 133 S. Ct. 1003
(2013), which reined in the state action antitrust immunity
doctrine by reiterating that the immunity applies only when the
state legislature has "clearly articulated and affirmatively
expressed" a policy displacing competition, and holding that a
state's grant of general corporate powers is not enough to meet
the "clear articulation" standard.1 The
Phoebe Court did not address the second prong of the state
action immunity test, which requires that a state policy displacing
competition be "actively supervised" by the state, but
only if the party asserting immunity is a private entity rather
than a municipality or
