## Facts

- The Federal Trade Commission (FTC) brought an administrative complaint alleging that several title insurance companies, acting through state-licensed rating bureaus, engaged in horizontal price fixing for title search and examination fees.
- The challenged conduct occurred in Connecticut, Wisconsin, Arizona, and Montana under regimes permitting joint rate filings by rating bureaus.
- In each state, rates were filed with the state insurance office and became effective unless rejected within a specified period.
- An Administrative Law Judge found price fixing in all four states and concluded that state-action immunity applied in Wisconsin and Montana.
- On review, the FTC agreed the states had clearly authorized joint rate setting but determined that none of the four states provided sufficient active supervision to immunize the conduct.
- The Third Circuit reversed, holding that the existence of a state regulatory program “staffed, funded, and empowered by law” satisfied the active supervision requirement and immunized the conduct in all four states.

## Issues

1. Whether private collective rate setting is entitled to Parker state-action immunity when a state authorizes joint rates but allows them to take effect by default unless disapproved.
2. Whether the “active supervision” requirement is satisfied by the formal existence of a state regulatory apparatus, or instead requires evidence of substantive state review and control over the rates.
3. Whether the Court needed to decide if Parker immunity applies in the same manner in an FTC enforcement action under the FTC Act.

## Decision

- The Supreme Court reversed the Third Circuit to the extent it granted state-action immunity for conduct in Montana and Wisconsin.
- The Court held that the record did not show the required active state supervision of the private rate setting in those states.
- The Court rejected the Third Circuit’s view that a regulatory program’s structure alone (staffing, funding, legal authority) automatically satisfies active supervision.
- The Court declined to resolve broader questions about Parker’s application to FTC enforcement because the FTC did not claim any superior preemption authority in the case.

## Legal Principles

- For private actors to obtain state-action antitrust immunity, the state must (1) clearly articulate and affirmatively express a policy allowing the anticompetitive conduct and (2) actively supervise the private conduct.
- “Active supervision” requires actual state involvement and independent judgment such that the specific rates or prices are the product of deliberate state intervention, not merely private agreement.
- A “file-and-use” or “negative option” system—where rates take effect unless disapproved—does not, without evidence of meaningful review, establish active supervision.
- States cannot confer antitrust immunity on private parties by mere authorization or by creating a nominal regulatory scheme; private parties bear the burden of showing genuine state oversight.

## Conclusion

The Court limited Parker state-action immunity by requiring proof of substantive, independent state supervision over private rate-setting, holding that state authorization plus default-effective rate filings did not immunize the challenged conduct in Montana and Wisconsin on the record presented.


F.T.C. v. Ticor Title Ins. Co., 504 U.S. 621 (1992)