California Ex Rel. Harris v. Safeway, Inc.
651 F.3d 1118
| 9th Cir. | 2011Background
- Fall 2003 UFCW labor dispute with Albertson’s, Ralphs and Vons; Food 4 Less held a separate UFCW contract.
- Grocers formed a multi-employer bargaining unit in summer 2003 and executed the Mutual Strike Assistance Agreement (MSAA).
- MSAA included a revenue-sharing provision: 15% of excess revenues would be paid to other grocers to restore pre-strike shares during a strike/lockout period (start of strike to two weeks after).
- Strike against Vons began Oct 11, 2003; Albertson’s and Ralphs locked out workers; unions focused picketing on Albertson’s and Vons; end of strike Feb 2004 with payments from Ralphs.
- California sued under Sherman Act §1 alleging antitrust violation; after limited discovery and various motions, district court denied exemption and the case proceeded to final judgment; the case was appealed and reheard en banc.
- The plaintiff and defendants later stipulated to final judgment with the non-statutory labor exemption and per se/quick-look defenses preserved for appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the revenue-sharing provision is exempt under the non-statutory labor exemption | Brown favors exemption of post-imppasse labor terms; RSP fits labor policy. | RSP is anchored in collective bargaining and labor policy; Brown should immunize it. | Exemption does not apply |
| If not exempt, should the RSP be condemned per se or under quick look or require full rule of reason | Exemption not apply; RSP should be condemned under per se or quick look. | RSP is not plainly per se; quick look or rule-of-reason may be appropriate. | Neither per se nor quick look; full rule-of-reason development required |
| What analytical framework governs the antitrust evaluation of the RSP | Labor exemption not applicable; apply standard antitrust scrutiny. | Brown-like framework should immunize at least post-impasse aspects; revenue sharing may be procompetitive. | Court should apply traditional rule of reason; not resolved in favor of exemption |
Key Cases Cited
- Brown v. Pro Football, Inc., 518 U.S. 231 (1996) (non-statutory labor exemption extended to employer-only agreement; post-impasse conduct context)
- Citizen Pub’g Co. v. United States, 394 U.S. 131 (1948) (profit pooling in newspapers condemned per se)
- Pennington (United Mine Workers v. Pennington), 381 U.S. 657 (1965) (wage agreements with unions—limits of exemption; wage-related restraints not absolute shield)
- Jewel Tea Co. v. Amalgamated Meat Cutters, 381 U.S. 676 (1965) (marketing-hours restrictions linked to labor policy; partial exemption in a fractured decision)
- Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616 (1975) (non-labor party cannot be shielded by non-statutory exemption when restraining a market)
- Citizen Pub’g Co. v. United States, 394 U.S. 131 (1969) (profit pooling; classic per se violation)
- California Dental Ass’n v. FTC, 526 U.S. 756 (1999) (quick look analysis; when a quick look is appropriate)
- State Oil Co. v. Khan, 522 U.S. 3 (1997) (per se and rule-of-reason framework guidance)