A bipartisan coalition of 18 state attorneys general (AGs) led by Connecticut AG William Tong has signed an amicus brief urging the U.S. Supreme Court to overrule its 1972 Flood v. Kuhn decision and revoke the immunity from federal and state antitrust laws that the Court has uniquely granted to professional baseball for more than a century.
The issue is a petition for writ of certiorari review submitted to the Court by two independent former minor league baseball franchises, the Tri-City ValleyCats and the Norwich Sea Unicorns, whose relationships with Major League Baseball (MLB) clubs allegedly were terminated as a result of an agreement reached in 2020 between MLB and its clubs limiting minor league affiliations to four affiliates per MLB club. The petitioners sued MLB in the U.S. District Court for the Southern District of New York, which granted MLB’s motion to dismiss the complaint based on its antitrust exemption. The Second Circuit U.S. Court of Appeals affirmed, and the petitioners now are taking their case against the Office of the Commissioner of Baseball to the Supreme Court, which first exempted professional baseball from antitrust laws in 1922 and reaffirmed that position in its Flood v. Kuhn decision 50 years later.
Submitted on October 23, the AGs’ amicus brief asks the Court to grant certiorari to review and overrule Flood v. Kuhn, which the AGs state “was wrongly decided.” The AGs’ brief draws upon principles of federalism, which they argue bar preemption of state antitrust enforcement absent an unmistakable congressional command that has not been issued on the case of MLB. The AGs thus contend that the 1972 decision “should not have preempted state antitrust laws in the name of a ‘uniformity’ that Congress never sought” and describe MLB’s antitrust exemption as “an unconstitutional intrusion into state prerogatives.”
Joining Connecticut on the brief are the states of Arizona, Colorado, Indiana, Kansas, Louisiana, Minnesota, Montana, New Jersey, New Mexico, New York, Tennessee, Vermont, and West Virginia; the Commonwealths of Massachusetts, Pennsylvania, and Virginia; and the District of Columbia.
Why It Matters
The AGs’ amicus brief exemplifies a bipartisan consensus that state AGs possess independent authority and discretion to enforce state and federal antitrust law that should not be constrained by an federal determination short of an act of Congress.
Troutman Pepper State Attorneys General Team
|Ashley Taylor – Co-leader and Firm Vice Chair
Ashley is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. He focuses primarily on federal and state government regulatory and enforcement matters involving state attorneys general, the Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC). Drawing upon his experience as a deputy attorney general, Ashley has developed an extensive consumer practice with regard to the consumer financial services industry.
|Clay Friedman – Co-leader
Clay is a partner in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group and co-leader of the State Attorneys General practice. Informed by nearly a decade in a state attorneys general office, and more than 25 years in private practice, Clay spends much of his time representing clients in singular or multistate regulatory actions. Clay has repeatedly led teams before all 50 state attorneys general and also handles matters with the Federal Trade Commission, the Consumer Financial Protection Bureau, and other local, state and federal agencies.
Judy is a partner in the firm’s Regulatory Investigations, Strategy and Enforcement (RISE) practice, based in the Richmond office. She brings experience serving as chair and commissioner of the Virginia State Corporate Commission (VSCC) from 2006 through 2022, which includes regulating the utilities, insurance, banking, and securities industries. She also served as Virginia’s attorney general from 2005-2006.
Stephen represents clients interacting with, and being investigated by, state attorneys general and other enforcement bodies, including the CFPB and FTC, as well as clients involved with litigation, particularly in heavily regulated industries.
A former deputy attorney general of New York, Avi applies his experience in bet-the-company matters, representing clients in criminal and civil investigations and enforcement actions before state and federal regulators, prosecutors and enforcement agencies.
Michael handles high-profile state attorneys general, FTC, and CFPB investigations by advising clients through these complex government inquiries. He assists clients through the entire life cycle of investigations, from regulatory enforcement through formal litigation.
Tim is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, with a primary focus on financial services litigation.
Chris represents clients in regulatory, civil and criminal investigations and litigation. In his practice, Chris regularly employs his prior regulatory experience to benefit clients who are interacting with and being investigated by state attorneys general.
Natalia is an associate in the firm’s business litigation practice. She recently received her J.D from the University of California, Davis School of Law.
Namrata is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group, based in the Washington, D.C. office. Her work includes advising clients in regulatory investigations and compliance matters, in addition to representing clients in civil litigation matters.
Michael is an associate in the firm’s Regulatory Investigations, Strategy, and Enforcement Practice Group. Based out of the firm’s Boston office, Mike has deep experience in litigation, investigations, and other regulatory matters involving state-level regulators and state attorneys general.
Susan is an associate in the firm’s Consumer Financial Services Practice Group, and focuses her practice on consumer financial services matters. She has defended several of the nation’s largest and most influential financial institutions in individual and class action litigation involving the Telephone Consumer Protection Act (TCPA), Fair Credit Reporting Act (FCRA), Fair Debt Collection Practices Act (FDCPA), and other consumer privacy statutes. Susan also represents banks, fintechs, and financial services companies in connection with regulatory examinations and investigations brought by the CFPB, state attorneys general, and the California Department of Financial Protection and Innovation.
John represents clients in a wide variety of general and complex litigation matters, shareholder disputes, products liability, and privacy claims.
Whitney is an attorney in the firm’s Regulatory Investigations, Strategy + Enforcement (RISE) Practice Group. She represents clients facing state and federal regulatory investigations and enforcement actions, as well as related civil litigation.
Trey is an associate in the firm’s Regulatory Investigations, Strategy + Enforcement practice. His experience includes serving as a summer associate at the firm in 2021.
An experienced litigator, Daniel advises and represents regional, national and international companies, financial institutions and insurers in all facets of business, complex commercial and insurance coverage litigation. He is committed to working with his clients to find creative solutions to meet their needs.
Stephanie is Troutman Pepper’s senior government relations manager in the state attorneys general department.