U.S. Court of Appeals for the Ninth Circuit

Case Status


Docket Number

08-55671, 08-55708


Case Updates

Ninth Circuit decides application of antitrust laws to mutual aid pacts during multi-employer bargaining

July 12, 2011

The Ninth Circuit, disagreeing with NCLC and two other circuits, found that the mutual aid pact is not protected from antitrust scrutiny under the nonstatutory labor exemption because, in this situation, there were no direct consequences for the labor market. The Court found that the use of revenue sharing is not consistent with the history of labor law and policy and that there are other economic weapons for employers to use in labor disputes, such as lockouts and replacement workers.

In a partial victory, the Court analyzed the pact at issue in this case and found that it was not a per se violation of the Sherman Act. The unique features of the mutual aid pact – limited duration, scope, and number of competitors – suggested that the employers maintained incentives to compete, thus the agreement was not per se illegal. Finally, the Court noted that there was no evidence of an actual anticompetitive impact on pricing.

Amicus brief on the merits filed 12/10/08. Decided 8/17/10. Amicus brief urging en banc review filed 10/12/10. En banc review granted 2/11/11. Decided 7/12/11.

Case Documents