State Action on Appeal: Parker Immunity and the Collateral Order Doctrine in Antitrust Litigation

The collateral order doctrine is perhaps the most significant exception to the general rule that only final judgments are appealable. The doctrine is particularly important in antitrust litigation when a defendant asserts state action immunity, often referred to as Parker immunity. However, the circuit courts have struggled with the question of whether a denial of Parker immunity is immediately appealable as a collateral order. This unsettled procedural issue is further complicated by the fact that the substantive law on Parker immunity differs depending on the entity asserting state action.

This Article argues that a governmental entity that is deemed part of a state should be able to use the interlocutory appeal process to obtain review of an order denying Parker immunity. On the other hand, government defendants deemed not part of the state, as well as private entities, should not be able to immediately appeal an adverse state action determination under the collateral order doctrine. In addition, this Article explores the collateral order doctrine’s applicability in FTC adjudicatory proceedings. Cases such as North Carolina State Board of Dental Examiners v. FTC and FTC v. Phoebe Putney Health System, Inc. demonstrate the Supreme Court’s renewed interest in the scope of state action immunity.

However, the question of whether a denial of Parker immunity is immediately appealable under the collateral order doctrine is also an important issue and is addressed in this Article.