The following was posted by Kathleen Foote on AT-State, the email discussion list of the State Enforcement Committee of the ABA Section of Antitrust Law.
On en banc rehearing of California ex rel. Harris v. Safeway, Inc., the Ninth Circuit on July 12, 2012 held that an agreement among supermarkets to share profits during a strike was not immune from antitrust attack under the non-statutory labor exemption, but also held that it was not subject to quick look (or per se) condemnation. The panel had previously held that the agreement was not exempt, and moreover was unlawful under quick look analysis. The case arose over a written agreement among the four leading Southern California supermarket chains, made in preparation for the lengthy 2003-04 strike/lock-out. Under it, they secretly pooled and shared their profits during the strike, in order to assure that each chain’s financial position would remain stable regardless of actual performance in the marketplace. The California Attorney General’s Sherman Act filed suit to enjoin the profit-pooling, contending that the agreement on its face eliminated or at least reduced each chain’s incentives to compete vigorously for business.
See
http://www.latimes.com/business/la-fi-grocers-antitrust-20110713,0,5031453.story
