USA – ARIZONA Trends and Developments Contributed by: Dan Goldfine, John Desmond, Patrick Masterson and Alexis Taitel, Dickinson Wright PLLC
Dickinson Wright PLLC 500 Woodward Avenue Suite 4000 Detroit, MI 48226-3425 USA Tel: +1 313 223 3500 Fax: +1 844 670 6009 Email: DGoldfine@dickinson-wright.com Web: www.dickinson-wright.com
Antitrust Litigation in Arizona in the Real Estate, Municipal Services and Other Sectors Led by a Democratic Attorney General, Arizona is emerging as a key player in the enforcement of federal and state antitrust laws that aim to prevent anticom - petitive business conduct. From the burgeoning real estate and rental housing markets to the tech industry, businesses and consumers can expect many devel - opments in the antitrust landscape as courts grapple to strike a balance between innovation and competi - tion. At the same time, labour interests and wage- fixing conspiracies are receiving increased attention. Through Arizona’s adoption of the Uniform State Anti - trust Act, federal court analysis of the antitrust laws guide Arizona state court interpretations of the state antitrust laws. This necessarily makes federal courts’ resolution of high-profile antitrust cases against defendants like Apple and Live Nation even more rel - evant to Arizonans, as federal outcomes can directly influence the effects of state antitrust laws. Likewise, in the neighbouring State of Nevada, the antitrust liti - gation landscape is seemingly expanding, as plaintiffs in the hospitality and nursing sectors are seeking relief from alleged wage-fixing schemes. Background on Arizona’s antitrust law In 1974, then-State Senator Sandra Day O’Connor introduced the Uniform State Antitrust Act in Arizona. (Arizona Revised Statutes (ARS) Title 44, Chapter 10, Article 1.) Like the Sherman Act, the Arizona Antitrust Act prohibits any “contract, combination or conspira - cy between two or more persons in restraint of, or to monopolize, trade or commerce,” and the “establish - ment, maintenance or use of a monopoly or an attempt
to establish a monopoly of trade or commerce... for the purpose of excluding competition or controlling, fixing or maintaining prices.” That is, the Arizona Anti - trust Act is just as vague as the Sherman Act, the Clayton Act, and the Federal Trade Commission (FTC) Act. It nevertheless expressly provides that uniformity with federal antitrust laws should be an interpretative guide for state courts: “This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states that enact it. It is the intent of the legislature that in construing this article, the courts may use as a guide interpretations given by the federal courts to comparable federal antitrust statutes.” (ARS Section 44-1412.) Since the adoption of the 1974 Act, Arizona courts have generally fol - lowed federal courts in interpreting Arizona antitrust laws. (See, eg, Three Phoenix Co. v Pace Indus., Inc., 135 Arizona 113, 118–19, 659 P.2d 1258, 1263–64 (1983) (applying federal antitrust case law, the per se rule applies to horizontal market division (although it is not clear that the restraint was a horizontal market division agreement) and cases cited therein).) The key exception to this uniformity rule is that Arizona per - mits indirect purchasers to pursue antitrust claims. ( Bunker’s Glass Co. v Pilkington PLC, 206 Arizona 9, 19, 75 P.3d 99, 109 (2003) .) This decision was largely premised on the Arizona Constitution, which provides that a “person... injured... by [an antitrust violation] may bring an action for... damages sustained.” (Ari - zona Constitution, Article 14, Section 15.)
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