Title Insurers Gain Big Antitrust Victory In The Third Circuit

On June 14, the title insurance industry received good news from the Third Circuit Court of Appeals, as the court affirmed the dismissal of two high-profile antitrust cases that have been in litigation for several years – In re: New Jersey Title Insurance Litigation and McCray v. Fidelity National Title Insurance Company. In separate opinions that, in most respects, tracked each other in terms of analysis, the appellate court affirmed lower court rulings that the Filed Rate Doctrine barred plaintiffs from asserting claims that they had overpaid for title insurance.

Specifically, plaintiffs alleged that insurers' rate filings with the New Jersey and Delaware Insurance Departments included "hidden costs" that were not disclosed to the state regulators, and that had the Insurance Departments known of these costs – which allegedly included kickbacks and rebates – the regulators would not have approved the rates. Accordingly, plaintiffs argued that the regulators had not