Antitrust Amicus Curiae Brief Supporting CEI’s Challenge to the 1998 Tobacco Settlement

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On December 10, 2010, five law professors filed an amicus brief with the U.S. Supreme Court in support of CEI's lawsuit against the 1998 tobacco settlement.

The brief, written by George Mason University law professors Todd J. Zywicki and Joshua D. Wright and by attorney C. Boyden Gray (counsel of record), urges the Court to hear the case due to the "wide-spread and entrenched nature of the national tobacco cartel" arising from the settlement. Specifically, the brief focuses on the question of whether state immunity from antitrust laws (known as "Parker immunity") applies to a "cartel-facilitating arrangement with significant interstate effects":

Disagreements across the Circuit Courts of Appeals call into question the extent of the state action doctrine immunizing private actors within state-facilitated cartels. The [lower court's] decision purports to expand the scope of the state action doctrine to immunize cartel arrangements merely sanctioned by, as opposed to actively monitored by, the state. The wide-spread and entrenched nature of the national tobacco cartel arising from the challenged restraint necessitates this Court‘s intervention.