St. Paul Fire & Marine Insurance v. Barry
Opinion of the Court
delivered the opinion of the Court.
Respondents, licensed physicians practicing in the State of Rhode Island and their patients, brought a class action, in part under the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1 et seq. (1976 ed.), against petitioners, the four insurance companies writing medical malpractice insurance in the State. The complaint alleged a private conspiracy of the four companies in which three refused to sell respondents insurance of any type as a means of compelling their submission to new ground rules of coverage set by the fourth. Petitioner insurers successfully moved in District Court to dismiss the antitrust claim on the ground that it was barred by the McCarran-Ferguson Act (Act), 59 Stat. 33, as amended, 15 U. S. C.
I
As this case comes to us from the reversal of a successful motion to dismiss, we treat the factual allegations of respondents’ amended complaint as true.
On May 16, 1977, a divided panel of the Court of Appeals for the First Circuit reversed in pertinent part. The majority reasoned that the “boycott” exception was broadly framed, and that there was no reason to decline to give the term “boycott” its “normal Sherman Act scope.” 555 F. 2d, at 8. “In antitrust law, a boycott is a 'concerted refusal to deal’ with a disfavored purchaser or seller.” Id., at 7. The court thought that this reading would not undermine state regulation of the industry. “Regulation by the state would be protected; concerted boycotts against groups of consumers not resting on state authority would have no immunity.” Id., at 9.
On August 12, 1977, petitioners sought a writ of certiorari in this Court. To resolve the conflicting interpretations of § 3 (b) adopted by several Courts of Appeals,
At the threshold, we confront a question of mootness. Although not raised by the parties, this issue implicates our jurisdiction. See, e. g., Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 7-8 (1978); Sosna v. Iowa, 419 U. S. 393, 398 (1975).
The Court of Appeals requested the parties to brief the question whether the antitrust claim was mooted by Rhode Island’s formation, after the initial complaint was filed, of a Joint Underwriting Association (JUA) to provide malpractice insurance to all licensed providers of health-care services and to require the participation of all personal-injury liability insurers in the State in a scheme to pool expenses and losses in providing such insurance.
Although later developments may have “reduce [d] the
Ill
The McCarran-Ferguson Act was passed in reaction to this Court’s decision in United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944). Prior to that decision, it had been assumed, in light of Paul v. Virginia, 8 Wall. 168, 183
As this Court observed shortly afterward, “[o]bviously Congress’ purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.” Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 429 (1946). Our decisions have given effect to this purpose in construing the operative terms of the § 2 (b) proviso, which is the critical provision limiting the general applicability of the federal antitrust laws “to the business of insurance to the extent that such business is not regulated by State Law.” See SEC v. National Securities, Inc., 393 U. S. 453, 460 (1969); FTC v. National Casualty Co., 357 U. S.
The Court of Appeals in this case determined that the word “boycott” in § 3 (b) should be given its ordinary Sherman Act meaning as “a concerted refusal to deal.” The “boycott” exception, so read, covered the alleged conspiracy of petitioners, conducted “outside any state-permitted structure or procedure, '[to] agree among themselves that customers dissatisfied with the coverage offered by one company shall not be sold any policies by any of the other companies.” 555 F. 2d, at 9.
Petitioners take strong exception to this reading, arguing that the “boycott” exception “should be limited to cases where concerted refusals to deal are used to exclude or penalize insurance companies or other traders which refuse to conform their competitive practices to terms dictated by the conspiracy.” Brief for Petitioners 13. This definition is said to accord with the plain meaning and judicial interpretations of the term “boycott,” with the evidence of specific legislative intent, and with the overall structure of the Act. Respondents counter that the language of § 3 (b) is sweeping, and that there is no warrant for the view that the exception protects insurance companies “or other traders” from anticompetitive practices, but withholds similar protection from policyholders victimized by private, predatory agreements. They urge that this case involves a “traditional boycott,” defined as a concerted refusal to deal on any terms, as opposed to a refusal to deal except on specified terms. Brief for Respondents 43.
IY
A
The starting point in any case involving construction of a statute is the language itself. See Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (Powell, J., concurring). With economy of expression, Congress provided in § 3 (b) for the continued applicability of the Sherman Act to “any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” Congress thus employed terminology that evokes a tradition of meaning, as elaborated in the body of decisions interpreting the Sherman Act. It may be assumed, in the absence of indications to the contrary, that Congress intended this language to be read in light of that tradition.
The generic concept of boycott refers to a method of pressuring a party with whom one has a dispute by withholding, or enlisting others to withhold, patronage or services from the target.
Petitioners define “boycott” as embracing only those combinations which target competitors of the boycotters as the ultimate objects of a concerted refusal to deal. They cite commentary that attempts to develop a test for distinguishing the types of restraints that warrant per se invalidation from other concerted refusals to deal that are not inherently destructive of competition.
Petitioners refer to cases stating that “group boycotts” are “concerted refusals by traders to deal with other traders,” Klor’s v. Broadway-Hale Stores, 359 U. S. 207, 212 (1959), or are combinations of businessmen “to deprive others of access to merchandise which the latter wish to sell to the public,” United States v. General Motors Corp., 384 U. S. 127, 146 (1966). We note that neither standard in terms excludes respondents— for whom medical malpractice insurance is necessary to ply their “trade” of providing health-care services, see n. 4, supra— from the class of cognizable victims. But other verbal formulas also have been used. In FMC v. Svenska Amerika Linien, 390 U. S. 238, 250 (1968), for example, the Court noted that “[u]nder the Sherman Act, any agreement by a group of competitors to boycott a particular buyer or group of buyers is illegal per se.” The Court also has stated broadly that “group boycotts, or concerted refusals to deal, clearly run afoul of § 1 [of the Sherman Act].” Tirnes-Picayune v. United States, 345 U. S. 594, 625 (1953). Hence, “boycotts are not a unitary phenomenon.” P. Areeda, Antitrust Analysis 381 (2d ed. 1974).
As the labor-boycott cases illustrate, the boycotters and the ultimate target need not be in a competitive relationship with each other. This Court also has held unlawful, concerted refusals to deal in cases where the target is a customer of some or all of the conspirators who is being denied access to desired goods or services because of a refusal to accede to particular terms set by some or all of the sellers. See, e. g., Paramount Famous Corp. v. United States, 282 U. S. 30 (1930); United States v. First Nat. Pictures, Inc., 282 U. S. 44 (1930); Binderup v. Pathe Exchange, 263 U. S. 291 (1923). See also Anderson v. Shipowners Assn., 272 U. S. 359 (1926). As the
Whatever other characterizations are possible,
Thus if the statutory language is read in light of the customary understanding of “boycott” at the time of enactment, respondents’ complaint states a claim under § 3 (b).
B
In the Court of Appeals, petitioners argued that only insurance companies and agents could be victims of practices within the reach of the “boycott” exception.
The principal exception in the McCarran-Ferguson bill to the pre-emptive role of state regulation was for acts or agreements amounting to a “boycott, coercion, or intimidation” violative of the Sherman Act. Both Committee Reports stated: “[A]t no time are the prohibitions in the Sherman Act against any agreement or act of boycott, coercion, or in
The bill ultimately enacted emerged from Conference Committee as a compromise between conflicting Senate and House proposals.
Petitioners cite passages of the debates in which Senator O’Mahoney refers to “blacklisting” and other exclusionary devices directed at independent insurance companies or agents. But those passages also provide support for respondents’ position that the eradication of such practices was not the only objective of Congress in enacting §3(b). In Senator O’Mahoney’s view, “[t]he vice in the insurance industry . . . was not that there were rating bureaus, but that there was in the industry a system of private government which had been built up by a small group of insurance companies, which companies undertook by their agreements and understandings to invade the field of Congress to regulate commerce.” 91 Cong. Rec. 1485 (1945). The conference substitute, he insisted, “outlaws completely all steps by which small groups have attempted to establish themselves in control in the great interstate and international business of insurance.” Ibid. Perhaps the most revealing discussion is found in his explanation of why the language of § 3 (b) was limited to “boycotts,
“[T]he committee was cognizant of the fact that many salutary combinations might be proposed and which ought to be approved, to which there was no objection. From the very beginning, Mr. President, of this controversy over insurance I have always taken the position that I saw no objection to combinations or agreements among the companies in the public interest provided those combinations and agreements were in the open and approved by law. Public supervision of agreements is essential.
“[M]y judgment is that every effective combination or agreement to carry out a program against the public interest of which I have had any knowledge in this whole industry study would be prohibited by [§S (&)].” 91 Cong. Ree. 1486 (1945) (emphasis supplied).
The rules and regulations of private associations in the industry, while providing Senator O’Mahoney with a vivid example of “the sort of agreement which ought to be condemned,” ibid., exemplified a larger evil — “regulation by private combinations and groups,” id., at 1483 — that required the continued application of the Sherman Act.
C
Petitioners also contend that the structure of the Act supports their reading of § 3 (b). They note that this Court
Petitioners rely on a syllogism that is faulty in its premise, for it ignores the fact that § 3 (b) is an exception to § 2 (b), and that Congress intended in the “boycott” clause to carve out of the overall framework of plenary state regulation an area that would remain subject to Sherman Act scrutiny. The structure of the Act embraces this exception. Unless § 3 (b) is read to limit somewhat the sweep of § 2 (b), it serves no purpose whatever. Petitioners do not press their argument that far, but they suggest no persuasive reason for engrafting a particular limitation on § 3 (b) that is justified neither by its language nor by the legislative history.
We hold that the term “boycott” is not limited to concerted activity against insurance companies or agents or, more generally, against competitors of members of the boycotting group. It remains to consider whether the type of private conduct alleged to have taken place in this ease, directed against policyholders, constitutes a “boycott” within the meaning of § 3 (b).
A
The conduct in question accords with the common understanding of a boycott. The four insurance companies that control the market in medical malpractice insurance are alleged to have agreed that three of the four would not deal on any terms with the policyholders of the fourth. As a means of ensuring policyholder submission to new, restrictive ground rules of coverage, St. Paul obtained the agreement of the other petitioners, strangers to the immediate dispute, to refuse to sell any insurance to its policyholders. “A valuable service germane to [respondents’] business and important to their effective competition with others was withheld from them by
The agreement binding petitioners erected a barrier between St. Paul’s customers and any alternative source of the desired coverage, effectively foreclosing all possibility of competition anywhere in the relevant market. This concerted refusal to deal went well beyond a private agreement to fix rates and terms of .coverage, as it denied policyholders the benefits of competition in vital matters such as claims policy and quality of service. Cf. Continental T. V., Inc. v. GTE Sylvania Inc., 433 U. S. 36, 55 (1977). St. Paul’s policyholders became the captives of their insurer. In a sense the agreement imposed an even greater restraint on competitive forces than a horizontal pact not to compete with respect to price, coverage, claims policy, and service, since the refusal to deal in any fashion reduced the likelihood that a competitor might have broken ranks as to one or more of the fixed terms.
B
We emphasize that the conduct with which petitioners are charged appears to have occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island. There was no state authorization of the conduct in question. This was the explicit premise of the Court of
Here the complaint alleges an attempt at “regulation by private combinations and groups,” 91 Cong. Rec. 1483 (1945) (remarks of Sen. O’Mahoney). This is not a case where a State has decided that regulatory policy requires that certain categories of risks be allocated in a particular fashion among insurers, or where a State authorizes insurers to decline to insure particular risks because the continued provision of that insurance would undermine certain regulatory goals, such as the maintenance of insurer solvency. In this case, a group of insurers decided to resolve by private action the problem of escalating damages claims and verdicts by coercing the policyholders of St. Paul to accept a severe limitation of coverage essential to the provision of medical services. See n. 4, supra. We conclude that this conduct, as alleged in the complaint, constitutes a “boycott” under § 3 (b).
The judgment of the Court of Appeals therefore is
Affirmed.
The McCarran-Ferguson Act provides in relevant part:
“Sec. 2. (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.
“(b) No Act of Congress shaE be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended, shall be applicable to the business of insurance to the extent that such business is not regulated by State Law.
“Sec. 3 (b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” 59 Stat. 34, as amended, 61 Stat. 448, 15 U. S. C. §§ 1012, 1013 (b) (1976 ed.).
Both the amended complaint and a second amended complaint, filed after the District Court’s dismissal of the antitrust claim, also alleged several state-law claims. Review of the disposition of those claims has not been sought in this Court.
To the extent the complaint aEeges a violation of the Clayton Act, 38 Stat. 730, as amended, 15 U. S. C. § 12 et seq. (1976 ed.), that claim is barred by respondents’ concession that the requirements of § 2 (b) of the McCarran-Ferguson Act are satisfied in this case. See n. 9, infra.
An “occurrence” policy protects the policyholder from liability for any act done while the policy is in effect, whereas a “claims made” policy protects the holder only against claims made during the life of the policy. The Court of Appeals noted that “a doctor who practiced for only one year, say 1972, would need only one 1972 ‘occurrence’ policy to be fully covered, but he would need several years of ‘claims made’ policies to protect himself from claims arising out of his acts in 1972.” 555 F. 2d 3, 5 n. 1 (CA1 1977).
4 Respondents further assert that “it is virtually impossible for a physician, hospital or other medical personnel to engage in the practice of medicine or provide medical services or treatment without medical malpractice insurance,” App. 22, and that as a result of petitioners’ conspiracy,
Following the rendition of the legislative history in Transnational Ins. Co. v. Rosenlund, 261 F. Supp. 12 (Ore. 1966), two1 Circuits squarely have held that § 3 (b) reaches only “blacklists” of insurance companies or agents by other insurance companies or agents. See Meicler v. Aetna Casualty & Surety Co., 506 F. 2d 732, 734 (CA5 1975); but cf. Battle v. Liberty National Life Ins. Co., 493 F. 2d 39, 51 (CA5 1974), cert. denied, 419 U. S. 1110 (1975); Addrissi v. Equitable Life Assurance Soc., 503 F. 2d 725, 729 (CA9 1974), cert. denied, 420 U. S. 929 (1975).
Two other Circuits have adopted a broader reading of § 3 (b). See Ballard v. Blue Shield of Southern W. Va., Inc., 543 F. 2d 1075, 1078 (CA4 1976), cert. denied, 430 U. S. 922 (1977) (alleged conspiracy
To establish a stable market for medical malpractice insurance, the JUA was created on a temporary basis by Emergency Regulation XXI, R. I. Dept. of Business Regulation, Insurance Div., June 16, 1975, App. 114A127, and received legislative sanction in R. I. Gen. Laws § 42-14.1-1 (1977). The emergency regulation was revised in April 1976 to permit the writing of medical malpractice insurance outside the JUA for all providers of health-care services other than physicians. App. 150-151. A subsequent change in state law authorizes the Director to promulgate regulations permitting the selling of such insurance outside of the JUA to physicians as well. 1976 R. I. Pub. Laws, ch. 79, § 1.
Although this case is technically not moot, the parties are not barred from showing, “on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary.” United States v. Phosphate Export Assn., 393 U. S. 199, 203 (1968); see United States v. W. T. Grant Co., 345 U. S. 629, 633-636 (1953).
We have not addressed respondents’ claim for damages arising out of their inability “to obtain medical malpractice insurance on a reasonable basis after June 30, 1975,” App. 26. Such a claim might itself preclude a finding of mootness, see e. g., Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 8-9 (1978), but the parties have not advised the Court whether this claim survives the formation of the JUA. The Court of Appeals stated that respondents were “entitled to seek both injunctive relief and treble damages,” noting, in a separate discussion, that “the change in malpractice coverage has increased costs for the doctors.” 555 F. 2d, at 12, and n. 7. The validity of the damages claim, in fight of the role of the JUA and the considerations identified in this decision, is a matter for initial determination by the courts below.
The Government in that case brought a Sherman Act prosecution against the South-Eastern Underwriters Association (SEUA), its membership of nearly 200 private stock fire insurance companies, and 27 individuals. The indictment alleged conspiracies to maintain arbitrary and noncompetitive premium rates on fire and “allied lines” of insurance in several States, and to monopolize trade and commerce in the same lines of insurance. It was asserted that the conspirators not only fixed rates but also, in the Court’s words, “employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies, and to compel persons who needed insurance to buy only from [SEUA] members on [SEUA] terms.” United States v. South-Eastern Underwriters Assn., 322 U. S., at 535.
Respondents did not contest below “that [petitioners’] acts were related to the business of insurance and that Rhode Island effectively regulates that business.” 555 F. 2d, at 6. They do not argue to the contrary in this Court.
The Court of Appeals’ ruling rested on the determination that respondents charged petitioners “with an unlawful boycott,” id., at 12. In light of our disposition of this case, we do not decide the scope of the terms “coercion” and “intimidation” in § 3 (b).
See Bird, Sherman Act Limitations on Noncommercial Concerted Refusals to Deal, 1970 Duke L. J. 247, 248; Webster’s New International Dictionary of the English Language 321 (2d ed. 1949); 1 The Oxford English Dictionary 1040 (1933); Black’s Law Dictionary 234 (4th ed. 1968).
The first decision of this Court dealing with a boycott situation, although without using the term, appears to be Montague & Co. v. Lowry, 193 U. S. 38 (1904), a nonlabor case involving an association of wholesalers and manufacturers that provided in its bylaws that no dealer member could buy from any manufacturer who was not a member of the association or sell for less than list price to a nonmember. See Kirkpatrick, Commercial Boycotts as Per Se Violations of the Sherman Act, 10 Geo. Wash. L. Rev. 302, 306-307 (1942).
The cases cited in the text are significant for their general interpretation of the Sherman Act even though they are no longer controlling as to the applicability of the antitrust laws to the activities of labor unions. See Connell Co. v. Plumbers & Steamfitters, 421 U. S. 616, 621-623 (1975); United States v. Hutcheson, 312 U. S. 219, 234 (1941); Drivers’ Union v. Lake Valley Co., 311 U. S. 91, 102-103 (1940).
See L. Sullivan, Handbook of the Law of Antitrust 256-259 (1977). Other commentators have framed a somewhat broader definition for a per se offense in this area. See Barber, Refusals to Deal under the Federal Antitrust Laws, 103 U. Pa. L. Rev. 847, 875 (1955) (“group action to coerce third parties to conform to the pattern of conduct desired by the group or to secure their removal from competition”); Kirkpatrick, supra n. 12, at 305 (“interference with the relations between a nonmember of the combination and its members or others”). We express no opinion, however, as to the merit of any of these definitions.
Kiefer-Stewart Co. involved a horizontal resale price maintenance scheme, see White Motor Co. v. United States, 372 U. S. 253, 260 (1963), but it has been cited as a “group boycott” case, see Klor's v. Broadway-Hale Stores, 359 U. S. 207, 212 n. 5 (1959); Times-Picayune v. United States, 345 U. S. 594, 625 (1953). See also United States v. Frankfort Distilleries, 324 U. S. 293, 295-296 (1945) (alleged conspiracy of producers, wholesalers, and retailers to maintain local retail prices by means of a “boycott program”).
See generally Report of the U. S. Attorney General's National Committee to Study the Antitrust Laws 137 (1955) (“approv[ing] the established legal doctrines which condemn group boycotts of customers or suppliers as routine unreasonable restraints forbidden by Section 1 of the Sherman Act”).
Petitioners suggest that the alleged conspiracy in this case presents a horizontal agreement not to compete, as distinguished from a boycott. See United States v. Topco Associates, 405 U. S. 596, 612 (1972); United States v. Consolidated Laundries Corp., 291 F. 2d 563, 573-575 (CA2 1961).
As one commentator has noted: “If an individual competitor lacks the bargaining power to get a particular contract term, the courts apparently will not let him join with other competitors and use their collective bargaining power to compel the insertion of such a term in the contract, no matter how desirable.” Bird, supra n. 11, at 263, discussing, inter alia, Binderup v. Pathe Exchange; Paramount Famous Corp. v. United States, 282 U. S. 30 (1930).
We note our disagreement with Mr. Justice Stewart’s expression of alarm that a reading of the operative terms of §3 (b), consistent with traditional Sherman Act usage, “would plainly devour the broad antitrust immunity bestowed by § 2 (b).” Post, at 559. Whatever the precise reach of the terms “boycott,” “coercion,” and “intimidation,” the decisions of this Court do not support the dissent’s suggestion that they are coextensive with the prohibitions of the Sherman Act. See, e. g., Eastern States Lumber Assn. v. United States, 234 U. S. 600, 611 (1914), quoting Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 438 (1911). In this regard, we are not cited to any decision illustrating the assertion, post, at 559 n. 6, that price fixing, in the absence of any additional enforcement activity, has been treated either as “a boycott” or “coercion.”
Brief for Appellees Aetna Casualty & Surety Co. et al. in No. 76-1226, p. 18 (CAI); Brief for Appellees St. Paul et al. in No. 76-1226, p. 14 (CA1).
The bill introduced by Senators McCarran and Ferguson (S. 340) provided that only federal legislation specifically dealing with insurance could override state laws relating to the regulation or taxation of that business, and created a moratorium period, staying the operation of the Sherman and Clayton Acts to enable the States to adjust their statutes to South-Eastern Underwriters. S. Rep. No. 20, 79th Cong., 1st Sess. (1945); 91 Cong. Rec. 478 (1945). Largely at the insistence of Senator O’Mahoney, it was amended on the floor of the Senate to provide that the Sherman and Clayton Acts would not' be pre-empted at the expiration of the moratorium. Id., at 488. The bill introduced in the House and reported favorably out of committee contained provisions that were similar to the original bill in the Senate. H. R. Rep. No. 143, 79th Cong., 1st Sess., 1 (1945); 91 Cong. Rec. 1085 (1945). The bill as reported passed the House. A Conference Committee then was appointed, composed of Senators McCarran, O’Mahoney, and Ferguson, and Representatives Sumners, Walter, and Hancock. In place of the Senate floor amendment, the conference substitute added the proviso to § 2 (b) that is presently in the Act. H. R. Conf. Rep. No. 213, 79th Cong., 1st Sess., 1-2 (1945).
Senator Ferguson perceived a distinction between legislation authorizing “rating bureaus,” which would not be disturbed by the bill, 91 Cong. Rec. 1481 (1945), and legislation permitting insurance companies to engage in practices constituting a “boycott, coercion, or intimidation,” which would remain subject to the Sherman Act, ibid.
Senator O'Mahoney noted that the conference substitute would permit “certain agreements which can normally be made in the insurance business which are in the public interest, but which might conceivably be a violation of the antitrust law,” such as a “rating bureau” operating “under the supervision and regulation of the State . . . .” Id., at 1444. But other practices constituting “regulation by private combinations and groups,” id., at 1483, would have to pass muster under the Sherman Act.
The dissenting opinion of MR. Justice Stewart advances the view, abandoned by petitioners in this Court, see supra, at 546, that § 3 (b) applies only “to the kinds of antitrust violations alleged in South-Eastern Underwriters Post, at 565. The dissent refers to no statement, either in the Committee Reports or the debates, asserting that §3 (b)’s only purpose was to keep alive the South-Eastern Underwriters indictment or purporting to restrict its scope to the practices specifically alleged therein. There is nothing in the proposal of the National Association of Insurance Commissioners, identified by the dissent as the model for the Senate bill, S. 340, that evinces such a limited purpose. The report accompanying the proposal stated in pertinent part:
“No exemption is sought nor expected for oppressive or destructive practices. On the whole, insurance has been conducted on a high plane,
It is difficult to view this language as supporting the dissent’s interpretation.
It also is asserted that the “boycott” clause in the Senate bill was intended to apply only during the moratorium period, a fact which supposedly supports the dissent’s narrow reading of the clause. But the dissent concedes that “[w]hatever its initial impetus . . . , there is no indication that the provision was finally thought to be applicable only to the South-Eastern litigation.” Post, at 563-564, n. 20. Moreover, neither the Committee Reports, see supra, at 546-547, nor the insurance commissioners’ statement, quoted above, suggests an intent to suspend the operation of the “boycott” clause at any time. Certainly Senator Ferguson disclaimed such an intent, stating he saw “no reason for not changing the word ‘section’ to ‘act,’ because I am of the opinion that that was the intention of all concerned.” 91 Cong. Rec. 479 (1945). There simply is no persuasive evidence of an original design merely to preserve the SouthEastern Underwriters indictment.
The legislative materials do not demonstrate with necessary clarity “that [Congress] has in fact used a private code, so that what appears to be violence to language is merely respect to special usage.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 543-544 (1947).
Even under petitioners' reading, certain cooperative arrangements among insurance companies may constitute a “boycott” under § 3 (b) notwithstanding the applicability of § 2 (b) to activities that “relate . . . closely to their status as reliable insurers,” SEC v. National Securities, Inc., 393 U. S. 453, 460 (1969), and the adequacy of state regulation of the industry. Hence, petitioners’ line may not be as “bright” as they suggest.
The dissenting opinion of Mr. Justice Stewart also argues that the structure of the Act supports a restrictive reading of § 3 (b). We do not think the dissent’s restatement of the holding in FTC v. National Casualty Co., 357 U. S. 560, 564 (1958), see post, at 557-558, n. 4, furthers resolution
“[E]ven where prices are rigidly fixed, the members of a cartel will be able to compete with each other with respect to product quality unless a homogeneous product is involved. Indeed, even if the product is homogeneous there will be room for rivalry in such matters as promptness in filling orders and the provision of ancillary services. An effective division of markets, by contrast, might substantially wash out all opportunity for rivalry.” Sullivan, supra n. 14, at 22é-225.
Counsel for petitioners stated at oral argument that he was not sure whether St. Paul had filed the specific policy change in issue with the director of the state insurance division. Tr. of Oral Arg. 8. Even if we assume that such a filing had been made, there is no suggestion that the State, in furtherance of its regulatory policies, authorized the concerted refusal to deal on any terms with St. Paul’s policyholders.
Although the dissenting opinion below noted “that Rhode Island has exercised its right to regulate all material aspects of the business of insurance and that the actions complained of relative to withholding malpractice insurance were all part of such regulated business,” 555 E. 2d, at 14, this statement refers to the requirements of the proviso to § 2 (b). The dissent did not argue that, the agreement in question was within the contemplation of any state regulatory scheme.
We have no occasion here to decide whether the element of state regulatory direction or authorization of the particular practice, absent in this case, is a factor to be considered in the definition of “boycott” within the meaning of § 3 (b), or whether it comes into play as part of a possible
In the present ease the District Court in an oral opinion held that various Rhode Island laws, including state antitrust statutes, made the federal antitrust laws generally inapplicable to the petitioners under § 2 (b). That ruling was implicitly accepted by the Court of Appeals, and has not been questioned here. See ante, at 540 n. 9.
The legislative history in the Senate indicates that two kinds of state regulation were thought capable of suspending the federal antitrust laws under §2(b). See 91 Cong. Rec. 1444 (1945) (remarks of Sen. O’Mahoney). First, a State could enact its own antitrust laws. Senator Murdock explained that “[i]nsofar as [the state laws] fail to cover the same ground covered by the Sherman Act and the Clayton Act, those [federal] acts become effective again” after the moratorium. Ibid. Second, a State could enact laws regulating various aspects of the business of insurance, such as rates and terms of coverage. Senator Ferguson explained that “if the States were specifically to legislate upon a particular point, and that legislation were contrary to the Sherman Act, the Clayton Act, or the Federal Trade Commission Act, then the State law would be binding.” Id., at 1481. See also id., at 1443 (remarks of Sen. McCarran and of Sen. Ferguson); id., at 1444 (remarks of Sen. White).
This Court has had few occasions to consider the operation of § 2 (b). In SEC v. National Securities, Inc., 393 U. S. 453, the Court held that certain Arizona regulations- protecting insurance company stockholders did not regulate the “business of insurance” within the meaning of § 2 (b) and thus did not pre-empt the Securities Exchange Act of 1934. The case did not involve the antitrust proviso of §2 (b), and hence did not decide to what extent a State must regulate the “business of insurance” to pre-empt the federal antitrust laws.
FTC v. National Casualty Co., 357 U. S. 560, is the only ease in this Court involving that question. There, the Court held that state statutes “prohibiting unfair and deceptive insurance practices,” id., at 562, pre-empted Federal Trade Commission regulations “prohibiting respondent insurance companies from carrying on certain advertising practices found by the Commission to be false, misleading, and deceptive, in violation
Dissenting Opinion
with whom Mr. Justice Rehnquist joins, dissenting.
Section 2 (b) of the McCarran-Ferguson Act provides that the Sherman Act “shall be applicable to the business of insurance to the extent that such business is not regulated by State Law.”
I
The Court accurately reads the Act as not conferring broad-scale antitrust immunity on the insurance industry, at least not for practices that “occurred outside of any regulatory or cooperative arrangement established by the laws of Rhode Island.” Ante, at 553. Although Congress plainly intended to give the States priority in regulating the insurance industry, it just as plainly intended not to immunize that industry from federal antitrust liability “to the extent that such business is not regulated by State Law.”
The broad reading the Court gives to § 3 (b) seems to me not only to misconceive the larger design of the Act, but also to distort its basic purpose. Section 3 (b) is an absolute exception to § 2 (b). It brings back under the Sherman Act a range of practices, whether authorized by state law or not.
Because I believe that the Court’s construction of § 3 (b) overlooks the role of § 2 (b) and misperceives congressional intent, I respectfully dissent.
II
It is true, as the Court says, that the McCarran-Ferguson Act fails to tell us in so many words that the phrase “boycott, coercion, or intimidation” should be read in some light other than that “tradition of meaning, as elaborated in the body of decisions interpreting the Sherman Act.” Ante, at 541. Yet, the very selection of precisely those three words from the entire antitrust lexicon indicates that they were intended to
On November 20, 1942, the Justice Department secured an indictment against a private association of. stock fire insurance companies and 27 individuals for alleged violations of §§ 1 and 2 of the Sherman Act. The prosecution came as a surprise to many, because Supreme Court precedents dating back 75 years had implied that the insurance industry was not a part of interstate commerce subject to congressional regulation under the Commerce Clause.
Uncertain about the continuing validity of many state regulations that conflicted with federal law, various insurance companies and organizations immediately sought relief from Congress. Some threatened to withhold state taxes on the ground that States were then thought to be prohibited from
That decision came on June 5, 1944. The Court held that the business of insurance is part of interstate commerce, and that the Congress which enacted the Sherman Act had not intended to exempt that industry. United States v. South-Eastern Underwriters Assn., 322 U. S. 533. Of particular relevance to our inquiry is the Court’s description of the unlawful activities alleged in the South-Eastern Underwriters indictment:
“The member companies of S. E. U. A. controlled 90 per cent of the fire insurance and 'allied lines’ sold by stock fire insurance companies in the six states where the conspiracies were consummated. Both conspiracies consisted of a continuing agreement and concert of action effectuated through S. E. U. A. The conspirators not only fixed premium rates and agents’ commissions, but employed boycotts together with other types of coercion and intimidation to force nonmember insurance companies into the conspiracies, and to compel persons who needed insurance to buy only from S. E. U. A. members on S. E. U. A. terms. Companies not members of S. E. TJ. A. were cut off from the opportunity to reinsure their risks, and their services and facilities were disparaged; independent sales agencies who defiantly represented non-*561 S. E. U. A. companies were punished by a withdrawal of the right to represent the members of S. E. U. A.; and persons needing insurance who purchased from non-S. E. U. A. companies were threatened with boycotts and withdrawal of all patronage.” Id., at 535-536 (footnote omitted).
The Court concluded:
“Few states go so far as to permit private insurance companies, without state supervision, to agree upon and fix uniform insurance rates. ... No states authorize combinations of insurance companies to coerce, intimidate, and boycott competitors and consumers in the manner here alleged, and it cannot be that any companies have acquired a vested right to engage in such destructive business practices.” Id., at 562.
Before announcement of the Court’s opinion, the phrase “boycott, coercion, or intimidation” had appeared in none of the lengthy debates or numerous legislative proposals in Congress from September 1943 to May 1944.
The bill totally exempting the insurance industry from the Sherman and Clayton Acts passed the House of Representatives on June 22, 1944.
The state officials proposed a statute that, after a mora
“A suspension until July 1, 1948, is requested, in which the Sherman and Clayton Acts shall not apply, in order to allow adjustments within the business and time for enactment by States of such further legislation as they may deem necessary or desirable. After July 1, 1948, it is provided that the Sherman Act shall not apply to the use of cooperative rates, forms, and underwriting plans where State-approved, to adjustment, inspection and similar agreements^] to acts of reinsurance or co-insurance, to commission agreements, to the collection of statistics, nor to cooperative action for making of rates, rules, or plans where their use is not mandatory.
*563 “No exemption is sought nor expected for oppressive or destructive practices. . . . Provision is made that the Sherman Act shall not now or hereafter be inapplicable to any act of boycott, coercion, or intimidation.” 90 Cong. Rec. A4406 (1944).
This proposal formed the basis for S. 340, which was reported out with the unanimous support of the Senate Committee on the Judiciary in January 1945.
The House passed a version of the bill striking the opposite balance. Its bill, too, carried a moratorium provision with the boycott limitation, but at the end of that period the federal antitrust laws would be pre-empted by state regulations even insofar as acts of “boycott, coercion, or intimidation” were concerned.
A Conference Committee then within a short period worked out a compromise bill which became the present McCarran-Ferguson Act. Section 2 (b) of this bill steered a middle course by making the Sherman Act, the Clayton Act, and the Federal Trade Commission Act applicable to the business of insurance after a moratorium period, but only “to the extent that such business is not regulated by State law.”
Ill
From this review of the legislative history, it should be clear that the scope given both §§ 2 (b) and 3 (b) is crucial to the effectuation of the compromise struck by the 79th Congress. If § 2 (b) is construed broadly to pre-empt federal law without the need for specific state legislation and if § 3 (b) is given no effect as a limitation on that pre-emption, the original House position prevails. On the other hand, if § 3 (b) is construed as broadly as the Sherman Act itself, then the original Senate version largely prevails, no matter how § 2 (b) is interpreted.
From the legislative debates on S. 340, the Committee Reports, and the design of the statute itself, it is evident that the “boycott, coercion, or intimidation” provision is most fairly read as referring to the kinds of antitrust violations alleged in South-Eastern Underwriters — that is, attempts by members of the insurance business to force other members to follow the industry’s private rules and practices. Repeatedly, Congressmen involved in the drafting of the statute drew a distinction between state regulation and private regulation.
The key feature of § 3 (b), then, is that the agreement or act of “boycott, coercion, or intimidation” must be aimed ultimately at a member of the insurance industry. ' As in South-Eastern Underwriters, the immediate targets may be policyholders or others outside the industry, but unless they are boycotted, coerced, or intimidated for the purpose of forcing other insurance companies or agents to comply with industry rules, § 3 (b) does not apply.
It follows, then, that § 3 (b) does not reach the boycott alleged in this case. The respondents’ complaint does not contend that petitioner insurance companies refused to sell them insurance with the ultimate aim of disciplining or coercing other insurance companies. Rather, if there was an agreement among the petitioners, the complaint would indicate that it was entirely voluntary.
I would reverse the judgment of the Court of Appeals.
Section 2 provides in full:
“ (a) The business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business. ^
“(b) No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal
Section 3 provides in full:
“(a) Until June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, and the Act of June 19, 1936, known as the Robinson-Patman Anti-Discrimination Act, shall not apply to the business of insurance or to acts in the conduct thereof.
“(b) Nothing contained in this chapter [Act] shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” 59 Stat. 34, as amended, 61 Stat. 448, 15 U. S. C. § 1013 (1976 ed.).
See n. 1, supra, and n. 4, infra.
In Senator Ferguson’s words:
“There are certain things which a State cannot interfere with. It cannot interfere with the application of the Sherman Act to any agreement to boycott, coerce, or intimidate, or an act of boycotting, coercion, or intimidation.” 91 Cong. Rec. 1443 (1945).
Most practices condemned by the Sherman Act can be cast as an act or agreement of “boycott, coercion, or intimidation.” For example, price fixing can be seen either as a refusal to deal except at a uniform price (i. e., a boycott), or as an agreement to force buyers to accept an offer on the sellers’ common terms (i. e., coercion). Yet state-sanctioned price fixing immunized by § 2 (b) was plainly not intended to fall within the § 3 (b) exception. See 91 Cong. Rec. 1481 (1945) (remarks of Sen. Ferguson).
See H. R. Rep. No. 143, 79th Cong., 1st Sess., 2 (1945).
United States v. South-Eastern Underwriters Assn., 51 F. Supp. 712 (ND Ga.).
See H. R. Rep. No. 143, supra, at 2.
H. R. 3270, S. 1362, 78th Cong., 1st Sess. (1943).
90 Cong. Rec. 6510 (1944).
S. Rep. No. 1112, 78th Cong., 2d Sess. (1944).
Id., pt. 2, at 6.
90 Cong. Rec. 8054 (1944).
Id., at A4406.
Ibid.
The report also appeared to refleet the testimony of Attorney General Biddle, who, on the day after H. R. 3270, see n. 10 supra, passed the House, appeared before the Senate Judiciary Subcommittee that was considering this same legislation. He assured the Subcommittee that the Government did not intend to bring new prosecutions while Congress was considering legislation on the subject, but he insisted that the South-Eastern case should and would go forward because of the seriousness of the charges. After quoting a portion of the Court’s opinion set out in the text, supra, at 560-561, he stated:
“[T]hat case was not merely a price-fixing case, but involved very serious boycotting. It involved boycotting by insurance companies of agents who would not belong to the association, and under the laws of the State in which the association operated, many of the acts alleged in the indictment would have been illegal.” Joint Hearing on S. 1362 et al. before the Subcommittees of the Committees on the Judiciary, 78th Cong., 2d Sess., 636 (1944).
S. Rep. No. 20, 79th Cong., 1st Sess. (1945).
In. the floor debates, several Senators pointed out that the bill could be read to support pre-emption of the federal antitrust laws by state regulations. 91 Cong. Rec. 480 (1945). To clarify its intent, the Senate amended S. 340 on the floor to make the antitrust laws expressly and fully applicable after the moratorium period. Id., at 488.
As the bill came out of committee, the boycott provision applied only to the section establishing a short-term moratorium. Id., at 479. A proposal to extend the boycott provision to the full Act was offered by Senator Murdock and accepted by Senator Ferguson, ibid., but was never ratified by the Senate.
That the boycott exception was originally drafted only to keep the Sherman Act partially in effect during the moratorium suggests that the provision may have been initially intended to prevent interference with the prosecution of the defendants in South-Eastern Underwriters, who still faced trial following the decision of this Court. Certainly, many Congressmen expressed their opposition to legislation that would free those defendants from liability. See, e. g., 90 Cong. Rec. 6450 (1944) (remarks of Rep. Celler); id., at 6452 (remarks of Rep. LaFollette); Joint Hearings, supra n. 17, at 637 (remarks of Sen. Hatch). On its face, the boycott provision removed any doubt about the Government’s authority to continue with that prosecution. Whatever its initial impetus, however, there
See 91 Cong. Rec. 1085 (1945); see also id., at 1484-1485.
See n. 1, supra.
See n. 2, supra.
See, e. g., 91 Cong. Ree. 1480, 1483, 1485 (1945) (remarks of Sen. O’Mahoney); id., at 1481 (remarks of Sen. Ferguson).
See id., at 1486 (remarks of Sen. O’Mahoney).
See id., at 1485-1486 (remarks of Sen. O’Mahoney).
Reference
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