09-0547-cv
Freedom Holdings, Inc. v. Cuomo


                                  UNITED STATES COURT OF APPEALS

                                       FOR THE SECOND CIRCUIT


                                          August Term, 2009

 (Argued: December 2, 2009                                      Decided: October 18, 2010)

                                        Docket No. 09-0547-cv


  FREEDOM HOLDINGS, INC., INTERNATIONAL TOBACCO PARTNERS, LTD., 1010 Northern
   Boulevard, Suite 208, Great Neck, NY 11021, on behalf of themselves and all others
                                   similarly situated,

                                                                        Plaintiffs-Appellants,
                                               —v.—

   ANDREW M. CUOMO, in his official capacity as Attorney General of the State of New
   York, ROBERT L. MEGNA, in his official capacity as Commissioner of Taxation and
                        Finance of the State of New York,

                                                                       Defendants-Appellees.

                                        ____________________

Before:

                   WALKER, RAGGI, Circuit Judges, and RAKOFF, District Judge.*



          Appeal from a judgment of the United States District Court for the Southern District

of New York (Alvin K. Hellerstein, Judge), entered after a bench trial, which rejected



          *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
plaintiffs’ Sherman Act and Commerce Clause challenges to New York’s Escrow and

Contraband Statutes, enacted in furtherance of a 1998 Master Settlement Agreement

(“MSA”) between cigarette manufacturers and all but four states.

       AFFIRMED.



              DAVID F. DOBBINS (Nicolas Commandeur, Mark G. Young, on the brief),
                   Patterson Belknap Webb & Tyler LLP, New York, New York, for
                   Plaintiffs-Appellants.

              SASHA SAMBERG-CHAMPION, Assistant Solicitor General (Barbara D.
                   Underwood, Solicitor General; Benjamin N. Gutman, Deputy Solicitor
                   General; Monica Wagner, Steven C. Wu, Assistant Solicitors General,
                   on the brief), for Andrew M. Cuomo, Attorney General of the State of
                   New York, for Defendants-Appellees.



REENA RAGGI, Circuit Judge:

       Plaintiffs Freedom Holdings, Inc., and International Tobacco Partners, Ltd., are

cigarette importers. They filed this putative class action in the United States District Court

for the Southern District of New York (Alvin K. Hellerstein, Judge) to enjoin the

enforcement of New York statutes enacted in furtherance of a 1998 Master Settlement

Agreement (“MSA”) between a number of tobacco companies and various government

entities, including New York State. Plaintiffs contend that the laws at issue, N.Y. Pub.

Health Law §§ 1399-nn–1399-pp (the “Escrow Statute”), and N.Y. Tax Law §§ 480-b, 481,

and 1846 (collectively, the “Contraband Statute”), impermissibly (1) restrain trade in

violation of section 1 of the Sherman Act, 15 U.S.C. § 1; and (2) regulate out-of-state

                                              2
commerce in violation of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. Plaintiffs now

appeal from a judgment entered in favor of defendants on January 14, 2009, after a bench

trial. For the reasons stated in this opinion, we affirm.

I.       Background

         Numerous prior opinions of this court and the district court detail the extensive

background of this case. See Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings I”), 357

F.3d 205 (2d Cir. 2004); Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings II”), 363

F.3d 149 (2d Cir. 2004); Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings III”), 447

F. Supp. 2d 230 (S.D.N.Y. 2004); Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings

IV”), No. 02 Civ. 2939, 2004 WL 2251668 (S.D.N.Y. Oct. 6, 2004); Freedom Holdings, Inc.

v. Spitzer (“Freedom Holdings V”), 408 F.3d 112, 115 (2d Cir. 2005); Freedom Holdings,

Inc. v. Cuomo (“Freedom Holdings VI”), 592 F. Supp. 2d 684 (S.D.N.Y. 2009). We assume

familiarity with these opinions and recite only the facts relevant to the decision reached

today.

         A.    The Master Settlement Agreement

         In November 1998, the nation’s four dominant cigarette manufacturers – Philip

Morris, Lorillard Tobacco, Brown & Williamson, and R.J. Reynolds1 – settled pending




         1
       Brown & Williamson and R.J. Reynolds have since merged, forming Reynolds
American, Inc.

                                              3
litigation with forty-six states,2 the District of Columbia, and five United States territories

(collectively, “the states”) by entering into the MSA. In return for releases from liability,

these manufacturers agreed to make substantial annual payments to compensate the states

for health care expenses incurred in the past and expected to be incurred in the future as a

result of their populations’ smoking-related ailments. New York’s approval of the MSA is

reflected in State v. Philip Morris, Inc., 179 Misc. 2d 435, 686 N.Y.S.2d 564 (Sup. Ct. N.Y.

Co. 1998), aff’d, 263 A.D.2d 400, 693 N.Y.S.2d 36 (1st Dep’t 1999).

                1.      The MSA’s Treatment of Cigarette Manufacturers

       The MSA divides cigarette manufacturers into several groups. The first group

consists of the four dominant manufacturers who initially executed the MSA. They are

referred to as “original participating manufacturers,” or “OPMs.” The second group consists

of more than fifty smaller manufacturers who joined the MSA after its initial execution.

They are referred to as “subsequent participating manufacturers,” or “SPMs.” The SPMs are

divided into two sub-groups: “grandfathered SPMs,” who joined the MSA within sixty days

of the initial November 1998 execution date;3 and “non-grandfathered SPMs,” who joined

the MSA thereafter. A third group consists of manufacturers who have not joined the MSA.

They are referred to as “non-participating manufacturers,” or “NPMs.” An NPM may

become a non-grandfathered SPM at any time by signing the MSA and making prescribed


       2
        Four states – Florida, Minnesota, Mississippi, and Texas – settled litigation with the
tobacco companies before the MSA was executed in 1998.
       3
           By agreement of the parties, this sixty-day period was later expanded to ninety days.

                                                4
payments.

              2.     Payment Obligations

       The MSA specifies a total base payment to be made by all OPMs to the states each

year. In 2009, the required base payment was $9 billion. The MSA allocates the annual base

payment obligation among OPMs according to their relative market share of the total number

of individual cigarettes shipped by the OPMs to the fifty states, the District of Columbia, and

Puerto Rico during the preceding calendar year. The MSA then awards the base payment to

the states based on prescribed allocable shares, which for New York is 12.76%.

       SPMs make annual payments approximating payments made by OPMs.                     The

advantage conferred on grandfathered SPMs for quickly joining in the MSA is that they are

exempted from payments on either their 1998 market share, or 125% of their 1997 market

share, whichever is greater. Thus, grandfathered SPMs pay an amount approximating the

OPM payment only for each cigarette manufactured above the grandfathered threshold.

       While the average per-cigarette cost of complying with the MSA is roughly equivalent

among OPMs and SPMs above grandfathered thresholds, this court and the district court

have observed that the SPM payment formula may, as an arithmetical matter,

disproportionately increase marginal payment obligations when SPMs gain market share

from OPMs. See Freedom Holdings II, 363 F.3d at 153; see also Freedom Holdings VI, 592

F. Supp. 2d at 698 n.15; Freedom Holdings III, 447 F. Supp. 2d at 258. In this case, we need

not consider whether this formula raises antitrust concerns because plaintiffs are NPMs, not

SPMs. See infra at [22-24 & n.14].

                                              5
              3.     Adjustments to Payment Obligations

       The MSA also provides for various adjustments to participating manufacturers’

payment obligations. First, an “inflation adjustment” increases payment obligations by a

minimum of 3% annually. Second, a “volume adjustment” reduces the required base

payment if there is an overall decline in the volume of cigarettes sold nationwide. Third, if

participating manufacturers lose market share relative to NPMs, an “NPM adjustment”

reduces the required base payment by triple the amount of market share lost. See MSA

§ IX(d)(1)(A).4

       B.     The Challenged Statutes

              1.     The Escrow Statute

       Under the MSA, a decline in the volume of sales by participating members necessarily

decreases the payments received by the states. To the extent the decline is attributable to

increased sales by NPMs, states can both make up for the lost MSA payments and avoid the

NPM adjustment by enacting and diligently enforcing escrow statutes.              See MSA

§ IX(d)(2)(B). The MSA contemplates that an escrow statute will “effectively and fully

neutralize[] the cost disadvantages that the Participating Manufacturers experience vis-à-vis

Non-Participating Manufacturers within such Settling State as a result of the provisions of

[the MSA].” Id. § IX(d)(2)(E).



       4
         If participating manufacturers lose more than 16-2/3% in market share, the decrease
in payment obligations is calculated “by a complex formula potentially increasing the
[participating manufacturers’] discount.” Freedom Holdings III, 447 F. Supp. 2d at 236.

                                             6
       The settling states have, in fact, all enacted escrow statutes. The operative section of

the New York Escrow Statute challenged in this case is codified at New York Public Health

Law § 1399-pp. It requires each cigarette manufacturer either (1) to join the MSA as a

participating manufacturer, see id. § 1399-pp(1); or (2) to make annual payments into a state

escrow fund, see id. § 1399-pp(2). The statute specifies the amount of these annual escrow

payments, which are adjusted for inflation. See id. at § 1399-pp(2)(a). Escrow funds are

released if needed to pay certain judgments, to the extent an NPM paid more into the escrow

fund than it would have paid as an SPM, or otherwise after twenty-five years. See id.

§ 1399-pp(2)(b).

       As originally drafted, state escrow statutes, including New York’s, also contained

allocable share release provisions, which allowed an NPM to recoup escrow payments to the

extent the NPM paid more into the escrow fund than a state’s allocable share of MSA

payments. This provided an incentive for NPMs to concentrate their sales in a single state

or small group of states to minimize their escrow costs. Thus, an NPM that sold 100% of its

cigarettes in New York could recoup 87.24% of its escrow payments because New York’s

allocable share of MSA payments is 12.76%. Meanwhile an NPM that sold the same number

of cigarettes nationwide could recoup none of its escrow payments. To avoid this outcome,

in 2003, New York, like other settling states, amended its Escrow Statute to permit NPMs

to obtain a release of escrow payments only to the extent they exceeded the per-cigarette

payments the NPMs would have made as participants in the MSA. See N.Y. Pub. Health



                                              7
Law § 1399-pp(2)(b)(ii).5

               2.     The Contraband Statute

       Between 1998 and 2002, MSA participants saw their market share of cigarette sales

decline while NPMs’ share rose. Attributing this situation, at least in part, to the failure of

certain NPMs to comply with escrow statutes, a number of states enacted “contraband

statutes.”6 See Freedom Holdings I, 357 F.3d at 213 (quoting Governor George Pataki’s

statement that New York’s Contraband Statute would “bolster the State’s ability to diligently

enforce” the Escrow Statute and, thus, “help protect the State from further [NPM]

adjustments” (internal quotation marks omitted) (alteration in original)). New York’s

Contraband Statute, codified at New York Tax Law §§ 480-b, 481(1)(c), and 1846, requires

a tobacco manufacturer to certify annually either (1) that it is a participating manufacturer,



       5
           This amendment to the Escrow Statute states:

       [T]o the extent that a tobacco product manufacturer establishes that the amount
       it was required to place into escrow on account of units sold in the state in a
       particular year was greater than the master settlement agreement payments, as
       determined pursuant to section IX(i) of the master settlement agreement
       including after final determination of all adjustments, that such manufacturer
       would have been required to make on account of such units sold had it been
       a participating manufacturer, the excess shall be released from escrow and
       revert back to such tobacco product manufacturer.”

N.Y. Pub. Health Law § 1399-pp(2)(b)(ii) (emphasis added).
       6
         Defendants suggest that these laws are “generally known as the directory statutes but
referred to by plaintiffs as Contraband Statutes.” Appellees’ Br. at 9. For the sake of
consistency with prior opinions in this case, we use the term “Contraband Statute” to refer
to the challenged provisions of the New York Tax Law.

                                              8
or (2) that it has complied with the Escrow Statute. See id. § 480-b(1). New York agents

cannot affix tax stamps to cigarettes if the manufacturer has not made the required

certification. See id. § 480-b(2). Cigarettes that do not bear a tax stamp are subject to

seizure or forfeiture, see id. § 1846, and a civil penalty of up to $5,000 may be assessed on

the non-compliant manufacturer, see id. § 481(1)(c).

       C.     Prior Proceedings

              1.      Freedom Holdings I

       On April 16, 2002, plaintiffs commenced this action in the Southern District of New

York, alleging that New York’s Contraband Statute violated the Sherman Act, the Commerce

Clause, and the Fourteenth Amendment. The district court dismissed the complaint for

failure to state a claim, and plaintiffs appealed to this court.

       We affirmed dismissal of the Commerce Clause claim, concluding that the Contraband

Statute did not discriminate against out-of-state economic interests, burden interstate

commerce, or regulate commerce occurring outside New York, as plaintiffs alleged. See

Freedom Holdings I, 357 F.3d at 217-21.7 Noting deficiencies in plaintiffs’ Fourteenth

Amendment equal protection claim, we remanded to the district court, so that plaintiffs could

have an opportunity to amend their complaint. See id. at 235.8


       7
         In so doing, we reserved a question not raised by plaintiffs’ complaint: whether “any
sort of interstate regulatory gridlock would occur if many or every state adopted similar
legislation.” Freedom Holdings I, 357 F.3d at 221 (internal quotation marks omitted).
       8
        In Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005),
we held that the equal protection argument raised by a similar group of NPM plaintiffs was

                                               9
       At the same time, we reversed the dismissal of plaintiffs’ antitrust claim, applying a

two-step analysis that asked, (1) whether the Contraband Statute effected a per se violation

of the Sherman Act and, if so, (2) whether it was nevertheless saved by the doctrine of state

action immunity. Accepting plaintiffs’ allegations as true, as we were required to do in

reviewing a judgment of dismissal, we observed that the Contraband Statute “allegedly

enforce[s] an express market-sharing agreement among private tobacco manufacturers, the

MSA.” Id. at 224. We determined that plaintiffs pleaded both market division and price

fixing to the extent “market-share increases among manufacturers are substantially

‘penalized’” by the MSA. Id. at 225. Thus, we concluded that plaintiffs adequately stated

an antitrust claim by alleging that “the combination of the MSA, the Escrow Statutes, and

the Contraband Statutes, allows OPMs to set supracompetitive prices that effectively cause

other manufacturers either to charge similar prices or to cease selling.” Id. at 226.

       We next considered whether the doctrine of state action immunity shielded the

Contraband Statute from application of the antitrust laws. See California Retail Liquor

Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105 (1980). Although we were

satisfied that the MSA regime was “clearly articulated and affirmatively expressed as state

policy,” the first prerequisite for state action immunity, Freedom Holdings I, 357 F.3d at 226-

27, we concluded that the complexity of the MSA scheme precluded determination at the



“unavailing because the Escrow Statutes are rationally related to a legitimate state interest:
promoting public health and recovering the costs of tobacco-related illnesses,” id. at 175.
Plaintiffs have not pursued their equal protection claim either on remand or in this court.

                                              10
dismissal stage as to whether the state was motivated by legitimate policy goals or by an

impermissible desire to share in monopoly profits, see id. at 227-31. We concluded further

that the state was not entitled to immunity at the pleading stage because it had yet to make

the required evidentiary showing that it actively supervised pricing decisions made by

cigarette manufacturers participating in the MSA. See id. at 231-32.

              2.     Freedom Holdings II

       In response to defendants’ petition for rehearing, we issued a second opinion

expanding on our reasons for reversing dismissal. See Freedom Holdings II, 363 F.3d 149.

First, we observed that “[a]ccording to the complaint, the function of the Escrow Statute is

to coerce NPMs to join the MSA because the costs of compliance with the Escrow Statute

are substantially higher than the costs of being an SPM.” Id. at 152; see also id. at 154.

       Second, we identified the core aspect of the alleged market division as the SPM

pricing formula. Parsing that formula, we noted that it was possible that SPMs were

penalized for gaining market share from OPMs because, “under the MSA, if the numerator

increases because the SPM has taken market share from an OPM, the denominator decreases

by the amount of the increase. Thus, the SPM’s proportion of the annual payment increases

by more than its proportion of overall market share.” Id. at 153. We, therefore, rejected

defendants’ contention that, as a matter of law, an SPM’s marginal payment per cigarette is

always lower than an OPM’s per-cigarette payment, and we concluded that plaintiffs should

be afforded an opportunity to prove that “payments increase disproportionately (i.e. in more

than a 1 to 1 ratio) when market share increases.” Id.

                                             11
          Third, as to state action immunity, we reiterated that, as alleged in the complaint, the

Contraband Statute was subject to the two-part analysis of California Retail Liquor Dealers

Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 105, because NPMs are “forced . . . to become

part of the market-sharing agreement set up by the MSA,” Freedom Holdings II, 363 F.3d

at 154. Thus, “the Challenged Statutes have the effect, according to the allegations of the

complaint, of delegating price-setting authority to the OPMs.” Id. at 155. In any event, it

was “too soon to say whether the state will ultimately be able to elicit evidence sufficient to

meet” the second, active supervision, prong of Midcal analysis. Id. at 157.

                 3.     Freedom Holdings III, IV, and V

          On remand after our decisions in Freedom Holdings I and Freedom Holdings II,

plaintiffs amended their complaint and moved for a preliminary injunction barring

enforcement of New York’s Escrow and Contraband Statutes. On September 14, 2004, the

district court preliminarily enjoined enforcement of the Escrow Statute’s allocable share

release amendment, but it denied the motion in all other respects, see Freedom Holdings III,

447 F. Supp. 2d at 233, thereafter also denying rehearing, see Freedom Holdings IV, 2004

WL 2251668. Plaintiffs appealed, and we affirmed the denial of broader injunctive relief

because plaintiffs failed to demonstrate the requisite likely irreparable harm. See Freedom

Holdings V, 408 F.3d at 115. We did not discuss the likelihood of plaintiffs’ success on the

merits.

                 4.     Grand River

          In Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005),

                                                 12
we considered a second Commerce Clause challenge to the MSA. The Grand River plaintiffs

alleged that New York’s Escrow and Contraband Statutes effectively “force out-of-state

merchants to seek New York regulatory approval before undertaking an out-of-state

transaction, [and] that . . . interstate regulatory gridlock would occur if many or every state

adopted similar legislation.” Id. at 171 (quoting Freedom Holdings I, 357 F.3d at 221

(internal quotation marks omitted)). Taking “no position as to the ultimate viability” of this

contention, we concluded that the pleading should not have been dismissed as a matter of law

because the Grand River plaintiffs “stated a possible claim that the practical effect of the

challenged statutes and the MSA is to control prices outside of the enacting states by tying

both the SPM settlement and NPM escrow payments to national market share, which in turn

affects interstate pricing decisions.” Id. at 173.

       D.     Freedom Holdings VI: The Challenged Judgment

       On February 10, 2006, plaintiffs again amended their complaint to add a Commerce

Clause claim conforming to Grand River. After discovery closed, the district court

commenced a three-day hearing on November 18, 2008, after which it entered judgment for

defendants as if after a bench trial pursuant to Federal Rule of Civil Procedure 52. See

Freedom Holdings VI, 592 F. Supp. 2d 684.

              1.      Findings of Fact

       Relying on data compiled by Pricewaterhouse Coopers in the course of its duties as

the independent auditor responsible for calculating payment obligations and reporting data

to the states and participating manufacturers under the MSA, the district court made a

                                              13
number of findings, including the following:

       First, “the payment structure of the MSA does not favor the major cigarette companies

over” SPMs and NPMs. Id. at 691. “[U]pdated reports reveal[ed]” that “OPMs continue to

pay more per carton ($5.31 in 2007), including payments to the four previously settled states,

than do the non-grandfathered SPMs ($5.07), and both pay more than NPMs pay under the

Escrow Statutes ($5.02).” Id. While “[g]randfathered SPMs, viewed in isolation, have the

lowest average payment obligation ($2.63), since they pay nothing for cigarettes sold up to

their grandfathered threshold,” id., credible expert testimony indicated that marginal cost, not

average cost, determined price, see id. at 698. The marginal cost for cigarette sales above

the grandfathered threshold was “about what non-grandfathered SPMs pay ($5.07), which

is more than NPMs pay.” Id. at 691.

       Second, NPMs had not “suffered,” but rather “prospered,” under the combined effect

of the MSA and challenged state statutes. Id. at 697. Specifically, while OPMs’ total market

share declined from 97.1% to 85.9% between 1997 and 2007, NPM market share during that

same period increased “from 0.4% in 1997 to a peak of 8.1% in 2003, . . . to 5.4% in 2007.”

Id. at 691.9 The “figures” cited in these two groups of findings “undermine” defendants’


       9
         The district court found the decline in market share between 2003 and 2007
explained by the fact that “General Tobacco, the largest NPM to become a non-grandfathered
SPM, joined the MSA in July 2004, which accounts for the fact that the SPMs’ total market
share has expanded slightly at the NPMs’ expense in the years since.” Freedom Holdings
VI, 592 F. Supp. 2d at 691 n.5. Further, the court observed that the data supplied by
Pricewaterhouse Coopers likely “understate[d] NPM sales because many NPMs sell
cigarettes through the Internet or Indian reservations to avoid federal excise tax collection,”
which sales the accounting firm does not consider in identifying market shares. Id. at 692.

                                              14
argument “that ‘NPMs are deterred from seeking increased market share because the high

costs of compliance with the Escrow Statute preclude their competing through lower prices.’”

Id. at 697. Indeed, this conclusion obtained even if plaintiffs had proved – which they did

not – that the MSA discouraged competition among OPMs. The evidence showed not only

that NPMs could exploit disproportionate price increases by MSA participants, but that they

“have done so vigorously to the NPMs’ market advantage.” See id. at 699.10

       Third, “[n]o evident economic force drives NPMs to the MSA.” Id. at 697. Insofar

as plaintiffs complained that NPMs faced a relative tax hardship because escrow payments,

in contrast to MSA payments, are not tax deductible, plaintiffs ignored an important



       10
          The district court also cited the “important public health goals and substantial fiscal
benefits” of the MSA regime, Freedom Holdings VI, 492 F. Supp. 2d at 700, in concluding
that it did not represent a “naked” restraint of trade lacking “‘any redeeming virtue,’” id. at
696 (quoting Rice v. Norman Williams Co., 458 U.S. 654, 659 n.5 (1982)); see also Freedom
Holdings III, 447 F. Supp. 2d at 248-54 (concluding per se rule should weigh social benefits
of MSA).
        For the reasons stated infra at [22-35], we conclude that plaintiffs failed to prove their
antitrust claim under a traditional application of the per se rule. Thus, we need not here
decide whether a state’s beneficent purpose can ever save an otherwise illegal restraint of
trade from Sherman Act preemption. See National Soc’y of Prof’l Eng’rs v. United States,
435 U.S. 679, 692 (1978) (observing that “purpose of [antitrust] analysis is to form a
judgment about the competitive significance of the restraint; it is not to decide whether a
policy favoring competition is in the public interest, or in the interest of the members of an
industry”); compare I Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 217b4, at
366-67 (3d ed. 2006) (criticizing Freedom Holdings III for effectively applying rule of reason
and remarking that “[w]hether more or less cigarette smoking is healthy or unhealthy is an
important policy concern, but it is not one that is properly effected through the device of an
unsupervised cartel agreement”), with Daniel A. Crane, Harmful Output in the Antitrust
Domain: Lessons from the Tobacco Industry, 39 Ga. L. Rev. 321, 326 (2005) (noting that
antitrust enforcement in tobacco industry has traditionally focused on increasing output but
suggesting different considerations for “net-harm industries”).

                                               15
distinction: MSA participants could “not recover their payments once made, while NPMs

receive annual interest earnings on escrowed funds and will recover, after twenty-five years,

any funds not applied to judgments or settlements with the States.” Id. If plaintiffs

eliminated these differences “by disclaiming their rights to interest income and reversion of

principal,” they would be “eligible to deduct their [escrow] payments.” Id.

       Fourth, plaintiffs failed to prove that the MSA “caused [them] or other NPMs to

surrender pricing autonomy.” Id. at 698. To the contrary, Christopher Nelson, chief

financial officer of NPM Freedom Holdings, and Jeffrey Avo Uvezian, president of NPM

International Tobacco Partners, testified that “their pricing decisions are made independently

and that they are not compelled to follow price leadership by their larger competitors.” Id.

Similarly, Kevin Altman, who set prices for two NPMs, CigTec and JJA Distributors LLC,

“testified that both companies made independent pricing decisions that were not dictated by

OPMs or SPMs.” Id. “The aggregate historical data” not only supported this testimony, it

demonstrated that “NPMs have taken competitive advantage of higher prices charged by the

large cigarette manufacturers.” Id. “Only the Escrow Statutes,” not the MSA, have an

impact on “NPMs’ cost structure.” Id. Their effect, however, was akin to a “flat tax,” which

did not violate antitrust laws. Id. at 699.

              2.      The Antitrust Claim

       In light of these findings, the district court entered judgment for defendants on

plaintiffs’ antitrust claim, holding that plaintiffs had failed to carry their burden to prove a

per se violation of the Sherman Act:

                                              16
       [T]he MSA does not mandate or authorize conduct that necessarily constitutes
       a violation of the antitrust laws in all cases, or place irresistible pressure on a
       party to violate the antitrust laws in order to comply with the [agreement]. The
       continued strength of NPMs proves as much, and the absence of financial
       pressure on NPMs to join the MSA confirms it. Nothing in the Escrow or
       Contraband Statutes mandates or authorizes illegal conduct in all cases, an
       essential ingredient of a per se antitrust violation.

Id. at 700 (internal quotation marks and modifications omitted).11

       Alternatively, the district court concluded that the challenged statutes were shielded

from Sherman Act preemption by state action immunity according to the two-part test

articulated in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97.

First, addressing the question of purpose that Freedom Holdings II determined could not be

decided on the pleadings, the district court identified a “plausible nexus” between various

provisions of the MSA and the states’ twin goals of decreasing cigarette consumption and

raising revenues to meet health costs associated with such consumption. Freedom Holdings

VI, 592 F. Supp. 2d at 701. Second, the district court determined that New York actively

supervised the competitive effects of the MSA by closely tracking data provided by the MSA

auditor. See id. at 702. The district court identified no need for greater supervision in light

of its findings that NPMs were able to gain market share under the challenged scheme. See

id.

              3.      Commerce Clause Claim

       The district court also entered judgment for defendants on plaintiffs’ claim that the


       11
        Accordingly, the district court also dissolved its preliminary injunction against
enforcement of the allocable share release amendment to New York’s Escrow Statute.

                                               17
extraterritorial effects of “interlocking” state escrow statutes violate the Commerce Clause

by creating a uniform, national system of cigarette regulation. While the enactment of

similar escrow statutes by a number of states contributed to the national increase in cigarette

prices, the district court concluded that this did not equate to regulation of interstate

commerce by New York because plaintiffs failed to show that “commercial actors outside

New York are bound in some way by the dictates of New York statutes.” Id. at 707.

       Plaintiffs timely appealed the district court’s judgment.

II.    Discussion

       A.     Standard of Review

       On appeal from a bench trial, we accord considerable deference to a district court’s

findings of fact, which we will reverse only for clear error. We review its conclusions of

law, or mixed fact and law, de novo. See Skoros v. City of New York, 437 F.3d 1, 12 (2d

Cir. 2006). We may affirm the district court’s decision on any ground appearing in the

record. See Liberty Mut. Ins. Co. v. Hurlbut, 585 F.3d 639, 648 (2d Cir. 2009).

       B.     Antitrust Claim

       In challenging the trial judgment, plaintiffs submit, as they have throughout this

litigation, that the Sherman Act preempts New York’s Escrow and Contraband Statutes

because those laws “implement[] the illegal per se output cartel set up in the MSA.” Second

Supp. & Am. Compl. Prayer for Relief ¶ 2. As we recognized in Freedom Holdings I, 357

F.3d at 222-23, a two-step inquiry guides analysis of this claim.

       First, the party asserting preemption must demonstrate an “irreconcilable conflict”

                                              18
between the challenged statute and the Sherman Act. Rice v. Norman Williams Co., 458

U.S. 654, 659 (1982). Such a conflict will be found only “when the conduct contemplated

by the statute is in all cases a per se violation” of the antitrust laws. Id. at 661; accord

Freedom Holdings I, 357 F.3d at 223.          Only “manifestly anticompetitive” restraints

“lack[ing] any redeeming virtue” – e.g., if competitors privately agree among themselves to

fix prices or to divide markets – constitute such per se violations. Leegin Creative Leather

Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886-87 (2007) (internal quotation marks and ellipsis

omitted).

       By contrast, restraints “unilaterally imposed by government . . . to the exclusion of

private control” do not violate the antitrust laws. Fisher v. City of Berkeley, 475 U.S. 260,

266 (1986); accord Massachusetts Food Ass’n v. Mass. Alcoholic Beverages Control

Comm’n, 197 F.3d 560, 563 (1st Cir. 1999) (Boudin, J.). Where, however, state law does

not regulate unilaterally but, rather, grants private actors a degree of regulatory control over

competition, the statute may be preempted as a “hybrid” restraint on trade. See 324 Liquor

Corp. v. Duffy, 479 U.S. 335, 345-46 & n.8 (1987); accord Freedom Holdings I, 357 F.3d

at 223; see also I Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law (“Areeda &

Hovenkamp”), ¶ 217a, at 352 (3d ed. 2006). The touchstone at the first step of inquiry is,

therefore, whether the challenged New York statutes “‘mandate[] or authorize[]’” private

antitrust violations. Fisher v. City of Berkeley, 475 U.S. at 265 (quoting Rice v. Norman

Williams Co., 458 U.S. at 661).

       Second, even if plaintiffs showed that the challenged statutes mandate or authorize

                                              19
a per se antitrust violation, those laws might still be saved from preemption by the doctrine

of state action immunity, see Parker v. Brown, 317 U.S. 341 (1943), if the anti-competitive

conduct at issue is both “clearly articulated and affirmatively expressed as state policy” and

“actively supervised by the State itself,” California Retail Liquor Dealers Ass’n v. Midcal

Aluminum, Inc., 445 U.S. at 105 (internal quotation marks omitted). In making this

determination, our concern is not with whether the challenged statutes benefit consumers.

See Rice v. Norman Williams Co., 458 U.S. at 659 (“A state statute is not preempted by the

federal antitrust laws simply because the state scheme might have an anticompetitive

effect.”). The critical question is whether the statutes reflect actual state policy outside the

purview of the Sherman Act, see Parker v. Brown, 317 U.S. at 351, or whether the state has

merely “cast[] . . . a gauzy cloak of state involvement over what is essentially a private price-

fixing arrangement,” in which case preemption will follow, California Retail Liquor Dealers

Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 106.12


       12
          Some courts and commentators have observed that the two steps of inquiry may
overlap. See, e.g., Costco Wholesale Corp. v. Maleng, 522 F.3d 874, 887-88 (9th Cir. 2008).
To determine whether a statute mandates or authorizes a per se violation, a court must
consider whether the challenged restraint “ha[s] been unilaterally imposed by government.”
Fisher v. City of Berkeley, 475 U.S. at 266. A finding of unilateral imposition “effectively
merge[s]” into the state action immunity inquiry insofar as it concludes that the challenged
statute does not delegate any unsupervised discretion to private parties. Costco Wholesale
Corp. v. Maleng, 522 F.3d at 887; see also I Areeda & Hovenkamp, supra, ¶ 217d, at 372
(noting that Fisher “use[d] Parker to show that the [challenged] ordinance passed the Rice
test”); Merrick B. Garland, Antitrust and State Action: Economic Efficiency and the Political
Process, 96 Yale L.J. 486, 507 (1987) (suggesting that Fisher’s “preemption analysis
collapses into the Midcal test”). Likewise, “the ‘state action’ exemption from the antitrust
laws simply expresses the conclusion that certain state laws are not preempted.” I Areeda
& Hovenkamp, supra, ¶ 217d, at 370.

                                               20
       On appeal, plaintiffs rely heavily on our decisions in Freedom Holdings I and

Freedom Holdings II in arguing that the district court erred at both steps of the preemption

analysis. When we reviewed the dismissal of plaintiffs’ complaint in Freedom Holdings I

and Freedom Holdings II, however, plaintiffs were required only to demonstrate that they

could prove some set of facts in support of their claim. See Freedom Holdings I, 357 F.3d

at 215 (“A complaint cannot be dismissed for failure to state a claim ‘unless it appears

beyond doubt that the plaintiff can prove no set of facts in support of his claim which would

entitle him to relief.’” (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).13 After a trial

judgment in favor of defendants, plaintiffs must be able to point to record evidence that

precluded the district court from finding, as it did, that the challenged statutes are unilateral

state actions that do not mandate or authorize private parties to restrain trade or, in any event,

that the statutes are not subject to Sherman Act preemption by virtue of the state action

immunity doctrine. We conclude that the district court was not precluded from making either

determination.

               1.     Plaintiffs’ Claim of a Per Se Violation of the Sherman Act

                      a.      Plaintiffs Must Demonstrate Antitrust Injury from the
                              Challenged Statutes

       Plaintiffs argue that they proved a per se violation of the Sherman Act by showing that


       13
          After Freedom Holdings I and Freedom Holdings II, the Supreme Court articulated
a “plausibility” standard for reviewing the dismissal of a complaint. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009) (“[A] complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).

                                               21
“the MSA constructed an output cartel,” Appellants’ Br. at 57, and the Escrow and

Contraband Statutes “conscript[] NPMs into the cartel as involuntary members,” id. at 58.

Plaintiffs contend that because they demonstrated such a per se violation, they were not

required to adduce direct evidence of the challenged statutes’ actual anti-competitive effects.

See National Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 109

(1984) (“[W]hen there is an agreement not to compete in terms of price or output, ‘no

elaborate industry analysis is required to demonstrate the anticompetitive character of such

an agreement.’” (quoting National Soc’y of Prof’l Eng’rs v. United States, 435 U.S. 679, 692

(1978)). Even if such evidence were required, plaintiffs submit that they proved that the

MSA has eliminated NPM competition, has preserved the market share of participating

manufacturers, and has allowed participating manufacturers to maintain supra-competitive

prices.

          At the outset, we note that plaintiffs do not challenge the MSA directly in making

their per se argument. Nor could they. Section 16 of the Clayton Act affords injunctive

relief only to plaintiffs who suffer “threatened loss or damage by a violation of the antitrust

laws.” 15 U.S.C. § 26. While a conspiracy among MSA participating manufacturers to fix

prices or to divide the cigarette market among themselves would certainly violate the

antitrust laws, see United States v. Topco Assocs., Inc., 405 U.S. 596 (1972); United States

v. Socony-Vacuum Oil Co., 310 U.S. 150 (1940), such a violation would not threaten

plaintiffs with loss or damage. To the contrary, if NPMs are not penalized for increasing

market share, they can maintain lower prices and thereby benefit from the alleged anti-

                                              22
competitive effects of the MSA. See Sanders v. Brown, 504 F.3d 903, 911 (9th Cir. 2007)

(“If the OPMs really are charging artificially high prices, and thus making artificially high

profits, an NPM conceivably could compete on price by charging a ‘normal’ price and still

make a ‘normal’ profit, even taking the escrow payment into account.”). Thus, because the

law is well established that competitors lack standing to challenge a conspiracy by their rivals

to raise their own prices, see Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328,

337 (1990); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582-83 (1986),

in analyzing plaintiffs’ appeal from the trial judgment, we ask whether they proved a per se

antitrust injury attributable to the challenged statutes.14


       14
          The district court suggested that this rule is limited to antitrust plaintiffs who seek
treble damages under section 4 of the Clayton Act, 15 U.S.C. § 15, and that standing analysis
is more flexible when an antitrust plaintiff seeks injunctive relief. See Freedom Holdings VI,
592 F. Supp. 2d at 693-95. We disagree.
        In the antitrust context, courts have articulated several “efficient enforcer” factors to
avoid the “duplicative recoveries” that would result from allowing “every person tangentially
affected by an antitrust violation” to sue for treble damages. Blue Shield of Va. v.
McCready, 457 U.S. 465, 475-77 & n.11 (1982); see also Hawaii v. Standard Oil Co., 405
U.S. 251, 262 n.14 (1972); Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 443-44 (2d
Cir. 2005). Because “one injunction is as effective as 100, and, concomitantly, . . . 100
injunctions are no more effective than one,” Hawaii v. Standard Oil Co., 405 U.S. at 261,
some of these factors are “not relevant” in suits for injunctive relief, Cargill, Inc. v. Monfort
of Colo., Inc., 479 U.S. 104, 111 n.6 (1986).
        But suits for injunctive relief, no less than suits for damages, require a plaintiff to
demonstrate an “injury in fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Morever, an antitrust plaintiff – whether seeking relief in law or equity – must demonstrate
“antitrust injury,” the more subtle details of which are not relevant here. See Cargill, Inc. v.
Monfort of Colo., Inc., 479 U.S. at 113; see also Zenith Radio Corp. v. Hazeltine Research,
Inc., 395 U.S. 100, 130 (1969) (holding that plaintiff “need only demonstrate a significant
threat of injury from an impending violation of the antitrust laws”); Paycom Billing Servs.,
Inc. v. Mastercard Int’l, Inc., 467 F.3d 283, 290 (2d Cir. 2006). Matsushita holds that a
“conspiracy by petitioners to charge higher than competitive prices . . . could not injure . .

                                               23
                      b.      Plaintiffs’ Failure To Prove that the Challenged Statutes
                              Establish a Hybrid Restraint of Trade

       Because section 1 of the Sherman Act proscribes only private party “contract[s],

combination[s] . . . or conspirac[ies] in restraint of trade,” 15 U.S.C. § 1, the threshold

question at trial was whether the challenged statutes are unilateral acts of a state falling

outside federal antitrust law. As the Supreme Court explained in upholding a city ordinance

setting rent ceilings in Fisher v. City of Berkeley, antitrust laws would prohibit private

property owners from “voluntarily band[ing] together to stabilize rents in the city,” but the

local law involved no “concerted action.” 475 U.S. at 266. The Court ruled that “[a]

restraint imposed unilaterally by government does not become concerted action within the

meaning of the [Sherman Act] simply because it has a coercive effect upon parties who must

obey the law.” Id. at 267. Nor does a government restraint become concerted action because

certain citizens benefit from it, see id. at 264 (“[T]he function of government may often be

to tamper with free markets, correcting their failures and aiding their victims . . . .”), or even

have urged it, cf. City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 375 (1991)

(recognizing inevitability and desirability of public officials acting in response to private



. competitors, [who] stand to gain from any conspiracy to raise the market price.” 475 U.S.
at 583 (emphasis added). We construe this categorical pronouncement to apply equally to
suits at law and equity. See generally Local Beauty Supply, Inc. v. Lamaur, Inc., 787 F.2d
1197, 1204 (7th Cir. 1986) (applying Matsushita rule in concluding that plaintiffs seeking
equitable relief must also show “antitrust injury”). As the Supreme Court has observed, “[i]t
would be anomalous . . . to read the Clayton Act to authorize a private plaintiff to secure an
injunction against a threatened injury for which he would not be entitled to compensation if
the injury actually occurred.” Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. at 112.

                                               24
citizens’ requests in rejecting argument for narrowing state action immunity).

       As we recognized in Freedom Holdings I, however, there is a distinction between laws

whose restraints are the product of unilateral state action and those whose restraints are

“hybrid.” 357 F.3d at 223-24 & n.17 (citing, e.g., Fisher v. City of Berkeley, 475 U.S. at

267-68). Hybrid restraints result when legislation confers a degree of regulatory power on

private parties. See Fisher v. City of Berkeley, 475 U.S. at 268; Rice v. Norman Williams

Co., 458 U.S. at 665 n.1 (Stevens, J., concurring in judgment). Thus, statutes that effectively

mandate resale price maintenance have been preempted by federal antitrust law as hybrid

restraints of trade. See 324 Liquor Corp. v. Duffy, 479 U.S. at 340 (invalidating New York

retail pricing system that “permits wholesalers to set retail prices, and retail markups, without

regard to actual retail costs”); California Retail Liquor Dealers Ass’n v. Midcal Aluminum,

Inc., 445 U.S. at 103 (invalidating legislation under which “wine producer holds the power

to prevent price competition by dictating the prices charged by wholesalers”); Schwegmann

Bros. v. Calvert Distillers Corp., 341 U.S. 384, 386 (1951) (invalidating Louisiana law

providing that buyer would not resell except at price stipulated by vendor).15

       On their face, the New York Escrow and Contraband Statutes mandate and enforce


       15
           At the time these cases were decided, resale price maintenance was a per se
violation of the Sherman Act. See Dr. Miles Med. Co. v. John D. Park & Sons Co., 220 U.S.
373 (1911). Recently, the Supreme Court overruled Dr. Miles and held that resale price
maintenance agreements should be judged under the rule of reason. See Leegin Creative
Leather Prods., Inc. v. PSKS, Inc., 551 U.S. at 907. We need not here decide whether state-
mandated resale price maintenance would survive preemption analysis after Leegin. See
Areeda & Hovenkamp, supra, ¶ 217.1, at 7-9 (Supp. 2008). We cite the cases only as
illustrative of hybrid restraints.

                                               25
payments that, as in Fisher, are “unilaterally imposed by government . . . to the exclusion of

private control.” 475 U.S. at 266. The Escrow Statute requires cigarette manufacturers to

make per-cigarette payments to the state according to a statutorily specified formula. See

N.Y. Pub. Health Law § 1399-pp(2)(a).16 The Contraband Statute enforces these payment

obligations by requiring cigarette manufacturers to certify their compliance with the Escrow

Statute. See N.Y. Tax Law § 480-b(1). If no such certification is made, various state-

imposed penalties follow. See id. §§ 480-b(2), 481(1)(c), 1846. None of these challenged

provisions grants any regulatory control to private parties.

       In reversing the dismissal of plaintiffs’ complaint, we nevertheless concluded that

plaintiffs stated a possible claim that the challenged statutes functioned as a hybrid restraint.

See Freedom Holdings I, 357 F.3d at 216, 223-24. In doing so, we credited, as we were then

required to do, plaintiffs’ allegation that “the function of the Escrow Statute is to coerce

NPMs to join the MSA because the costs of compliance with the Escrow Statute are

substantially higher than the costs of being an SPM.” Freedom Holdings II, 363 F.3d at 152;

see Compl. ¶ 20; Second Supp. & Am. Compl. ¶ 17. We concluded that proof of this


       16
         We recognize that NPM payments are released from the state escrow fund to the
extent they exceed payments that an NPM would have made if it had joined the MSA as an
SPM. See N.Y. Pub. Health Law § 1399-pp(2)(b)(ii). Assuming arguendo that the MSA
does penalize gains in SPM market share, see Freedom Holdings II, 363 F.3d at 153, an
argument might be made that this release provision penalizes similar gains in NPM market
share and, therefore, evidences a hybrid restraint, see KT&G Corp. v. Attorney Gen. of
Okla., 535 F.3d 1114, 1130-31 (10th Cir. 2008). Like the Tenth Circuit, however, we think
that such a connection to the conduct of private parties “is too attenuated for this court to
conclude that [the state has] delegated regulatory power to . . . private individuals.” Id. at
1131.

                                               26
allegation could, in turn, support an inference that the challenged statutes required a cigarette

manufacturer “to become part of the market-sharing agreement set up by the MSA – i.e. it

must not gain market share and it therefore cannot compete on price.” Freedom Holdings

II, 363 F.3d at 154. In sum, because the challenged statutes were alleged to force NPMs to

join the MSA – which we assumed, at the pleading stage, discouraged participating

manufacturers from gaining market share and competing on price – we concluded that

plaintiffs might prove that the statutes operated as a hybrid “delegat[ion of] price-setting

authority to the OPMs.” Freedom Holdings II, 363 F.3d at 155.

       On review of a challenged trial judgment, our focus necessarily shifts from what

plaintiffs might plausibly prove to what the district court found they did – or did not – prove.

Consistent with our obligation to view the evidence in the light most favorable to the

challenged judgment, we accord great deference to the district court’s resolution of

evidentiary conflicts, its choices among competing inferences to be drawn from the evidence,

and its decision as to what weight to assign particular evidence. See Anderson v. Bessemer

City, 470 U.S. 564, 573-74 (1985) (“In applying the clearly erroneous standard to the

findings of a district court sitting without a jury, appellate courts must constantly have in

mind that their function is not to decide factual issues de novo. If the district court’s account

of the evidence is plausible in light of the record viewed in its entirety, the court of appeals

may not reverse it even though convinced that had it been sitting as the trier of fact, it would

have weighed the evidence differently.” (internal quotation marks and citation omitted));

accord Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir. 2007). Plaintiffs cannot secure

                                               27
reversal simply by demonstrating that the evidence could support inferences favorable to

their claim. Rather, they must show that the evidence permitted no other inferences. See

Anderson v. Bessemer City, 470 U.S. at 574 (holding that “[w]here there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”).

                              (1)    Plaintiffs’ Failure To Prove that the Challenged Statutes
                                     Compelled NPMs To Join the MSA

        The district court found that plaintiffs failed at trial to prove the linchpin of their

hybrid restraint claim, i.e., that the severity of the escrow payments established by the

challenged statutes coerced NPMs to join the allegedly anticompetitive MSA. Plaintiffs

initially submitted that the relative severity of escrow payments was established by the fact

that, unlike MSA payments, “they are non-deductible for tax purposes.” Second Supp. &

Am. Compl. ¶ 17; see Freedom Holdings II, 363 F.3d at 152. At trial, the district court found

that escrow payments would be tax deductible if NPMs disclaimed their rights to interest and

release. See Freedom Holdings VI, 592 F. Supp. 2d at 697; see also Freedom Holdings III,

447 F. Supp. 2d at 238-39. Plaintiffs do not challenge this determination on appeal.

        Instead, they submit that the district court erred in further finding that NPMs not only

do not pay substantially more under the Escrow Statute than they would pay if they joined

the MSA; they pay less. See Freedom Holdings VI, 592 F. Supp. 2d at 691 (finding that, for

sales above grandfathered thresholds, SPMs pay more than NPMs). Plaintiffs’ attack is two-

fold.

        First, plaintiffs fault the district court for relying on data reflecting OPM settlement


                                               28
payments nationwide, rather than data limited to states that joined the MSA. Plaintiffs assert

that by including payments made to the four states that settled tobacco litigation before the

MSA was executed, the data relied on by the district court inflated the cost of OPM payments

by an aggregate of $1-2 billion per year. Specifically, plaintiffs contend that, in 2007, OPMs

paid only $4.04 per carton to comply with the MSA, not $5.31 as found by the district court.

       Second, plaintiffs submit that the data relied on by the district court was inflated

because it included payments owed – but not paid – by SPMs and, further, failed to take into

consideration smuggled cigarettes not reported by participating manufacturers. Plaintiffs

assert that, between 2003 and 2008, SPMs have failed to pay approximately 13% of

payments required by the MSA, either because those payments are disputed or because SPMs

have simply defaulted on their MSA obligations.

       Neither of these arguments persuades us that the district court committed clear error

in rejecting plaintiffs’ claim that the escrow payments coerce NPMs to join the MSA. A

comparison of MSA and escrow payments is complicated by the fact that the former are

calculated based on relative market share while the latter are based on a per-cigarette fee.

See Freedom Holdings III, 447 F. Supp. 2d at 238. Nevertheless, plaintiffs’ contention that

OPMs paid only $4.04 per carton – compared to NPMs’ escrow payment of $5.02 per carton

– does not find support even in the data on which they rely. That data indicates that OPMs

paid $4.52 per carton to comply with the MSA. Further, although plaintiffs fault the district

court for adding $0.78 to the $4.52 figure to reflect OPMs’ payments to the four states that

settled outside the MSA, the alternative of dividing OPMs’ payments to the MSA settling

                                             29
states by cigarettes sold nationwide appears even less reliable. Also, while it is undisputed

that some SPMs have not fully met their payment obligations under the MSA, the weight to

be accorded this fact is debatable given that a number of NPMs appear also to have failed to

satisfy their escrow obligations.

       In these circumstances, the district court did not clearly err in finding that plaintiffs

failed to carry their burden of proving that they were required to pay so much more under the

escrow statutes than under the MSA that the challenged statutes effectively compelled them

to join the MSA.

                             (2)    Plaintiffs’ Failure To Prove that the Challenged Statutes
                                    Delegate Price-Setting Authority to OPMs

       Plaintiffs submit that the challenged statutes nevertheless effect a hybrid restraint of

trade because they maintain the higher cigarette prices set by manufacturers participating in

the MSA. The record evidence did not compel the district court to so find.

       There is no doubt that escrow fees were designed to neutralize the cost disadvantage

experienced by MSA participants vis-à-vis NPMs. See MSA § IX(d)(2)(E). But that is

hardly sufficient to demonstrate that the challenged statutes mandate or authorize MSA

participants to exercise “unsupervised private discretion” to fix prices or to penalize gains

in market shares.     I Areeda & Hovenkamp, supra, ¶ 217b, at 356; see generally

Massachusetts Food Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197 F.3d at 565

(“What is centrally forbidden is state licensing of arrangements between private parties that

suppress competition – not state directives that by themselves limit or reduce competition.”


                                              30
(emphasis in original)). Rather, as the district court correctly concluded, the statutes’ effort

to impose a roughly equivalent cost on NPMs to that borne by manufacturers participating

in the MSA can be analogized to the imposition of a flat tax.

       A tax increase, like any cost, will likely be passed on to consumers in the form of

higher prices, but where, as here, the state alone imposes the increased cost, there is no

private collusion implicating the antitrust laws. See Freedom Holdings VI, 592 F. Supp. 2d

at 699 (citing Freedom Holdings I, 357 F.3d at 229, and Freedom Holdings II, 363 F.3d at

152). That competitors respond in similar ways to a tax they must all pay does not, by itself,

manifest an agreement proscribed by the Sherman Act. See Brooke Grp. Ltd. v. Brown &

Williamson Tobacco Corp., 509 U.S. 209, 227 (1993) (holding that “tacit collusion” of

participants in oligopolistic market to raise prices in response to higher costs is “not in itself

unlawful”); Williamson Oil Co. v. Philip Morris U.S.A., 346 F.3d 1287, 1314-15 (11th Cir.

2003) (explaining why lock-step price increases following MSA were insufficient evidence

of price-fixing); see generally Donald F. Turner, The Definition of Agreement Under the

Sherman Act: Conscious Parallelism and Refusals To Deal, 75 Harv. L. Rev. 655, 663 (1962)

(“[C]onscious parallelism is devoid of anything that might reasonably be called agreement

when it involves simply the independent responses of a group of competitors to the same set

of economic facts . . . .”).

       In any event, the district court did not reject plaintiffs’ price fixing argument simply

in theory. It found it belied in fact by substantial testimonial and documentary evidence

indicating that, even under the challenged statutes, NPMs have retained pricing autonomy,

                                               31
which they have exercised to gain substantial market share at the expense of OPMs. See

Freedom Holdings VI, 592 F. Supp. 2d at 698-99.

       In urging us to identify factual error, see Appellant’s Br. at 26-27 (maintaining that

“Enforcement Statutes ha[ve] succeeded in crushing the NPMs”), plaintiffs submit that the

district court’s market share findings were clearly erroneous because Pricewaterhouse

Coopers based these calculations, like its MSA payment data, on national market share

without distinguishing between states that joined in the MSA and states that reached

independent settlements. Plaintiffs cite data suggesting that amendments to the allocable

share release provision of state escrow statutes have resulted in declining NPM market share

since it peaked at 8.1% in 2003. This is not surprising as such amendments require NPMs

to make escrow payments on a greater percentage of cigarettes sold than previously. Further,

the district court reasonably determined that the 2004 decision by General Tobacco, the

largest NPM, to join the MSA also explains the expansion of SPMs’ total market share at the

expense of the NPMs in the years thereafter. See Freedom Holdings VI, 592 F. Supp. 2d at

691 n.5. In any event, even if allocable share amendments have eroded the dramatic market

share gains that NPMs realized in the immediate aftermath of the MSA, the same data

indicates that NPMs have gained considerable overall market share from the 0.4% held at the

time the MSA went into effect to the 5.4% held in 2007.

       In short, we identify no error in the district court’s determination that the allegations

we accepted for purposes of reviewing the dismissal of plaintiffs’ complaint – that the

challenged statutes forced NPMs “to become part of the market-sharing agreement set up by

                                              32
the MSA,” where OPMs fixed and maintained inflated prices and penalized gains in market

share, Freedom Holdings II, 363 F.3d at 154 – were not proved by plaintiffs at trial. Rather,

we conclude that substantial evidence supported the district court’s conclusion that the

challenged New York statutes, although in furtherance of the MSA, do not manifest a hybrid

restraint of trade because they do not mandate or authorize any private party to exercise

anticompetitive regulatory authority. This decision is consistent with those of our sister

circuits who have similarly rejected antitrust challenges to state escrow statutes in

furtherance of the MSA. See Xcaliber Int’l Ltd. v. Attorney Gen. of La., 612 F.3d 368, 374-

77 (5th Cir. 2010) (rejecting challenge to Louisiana statute); Grand River Enters. Six

Nations, Ltd. v. Beebe, 574 F.3d 929, 936-39 (8th Cir. 2009) (rejecting challenge to

Arkansas statute), cert. denied, 130 S. Ct. 2095 (2010); KT&G Corp. v. Attorney Gen. of

Okla., 535 F.3d 1114, 1128-33 (10th Cir. 2008) (rejecting challenge to Kansas and Oklahoma

statutes); Sanders v. Brown, 504 F.3d at 910-11 [9th Cir.] (rejecting challenge to California

statutes), cert. denied, 128 S. Ct. 2427 (2008); Tritent Int’l Corp. v. Kentucky, 467 F.3d 547,

554-58 (6th Cir. 2006) (rejecting challenge to Kentucky statutes). But cf. A.D. Bedell

Wholesale Co. v. Philip Morris Inc., 263 F.3d 239, 247-54 (3d Cir. 2001) (holding MSA per

se illegal output restriction, but defendants immune under Noerr-Pennington doctrine), cert.

denied, 534 U.S. 1081 (2002).

       We emphasize, however, the limited scope of our decision. Because plaintiffs have

not proved that the challenged statutes coerce them to join the MSA or that the MSA

otherwise injures them, they lack standing to challenge provisions of the MSA that they

                                              33
allege constitute an illegal agreement to divide the cigarette market among participating

manufacturers. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 582-83.

Thus, we have no occasion here to consider whether the MSA constitutes a private agreement

that impermissibly restrains trade by penalizing SPMs when they gain market share from

OPMs. See Freedom Holdings II, 363 F.3d at 153; Freedom Holdings VI, 592 F. Supp. 2d

at 698 & n.15; Freedom Holdings III, 447 F. Supp. 2d at 258. Nor need we address

defendants’ arguments that MSA payments “do not change materially based on volume sold”

or that the SPM payment formula “maintains a largely constant per-carton payment no matter

how much market share the SPMs acquire.” Appellees’ Br. at 39 n.9 (emphasis added). We

hold simply, in light of the district court’s findings, that plaintiffs failed to prove that the

challenged statutes granted regulatory power to private parties in violation of the antitrust

laws that caused plaintiffs any injury.

                      2.     The Sherman Act Does Not Apply to the Challenged Statutes
                             Because They Manifest “State Action”

       In Parker v. Brown, 317 U.S. 341, the Supreme Court construed the Sherman Act to

proscribe only private, not state, action. Because the Court grounded its ruling in the absence

of a clear statutory statement of Congress’s intent to preempt state regulation, see id. at 351,

courts and commentators have concluded that the decision rests on “principles of federalism

and state sovereignty,” Patrick v. Burget, 486 U.S. 94, 99 (1988); see also IA Areeda &

Hovenkamp, supra, ¶ 221b, at 48 (noting that Parker “was deemed necessary to protect the

states’ coordinate role in government”). Thus, “the premise of Parker v. Brown is that


                                              34
federal courts in applying the antitrust laws, should assume that Congress accepted the risks

of state-authorized displacement of competition.”          Cine 42nd St. Theater Corp. v.

Nederlander Org., Inc., 790 F.2d 1032, 1049 (2d Cir. 1986) (Newman, J., concurring)

(citation omitted).

       Parker cautioned, however, that a state cannot “give immunity to those who violate

the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.”

317 U.S. at 351. In its simplest form, this means that “a state cannot shield private parties

from the federal antitrust laws by enacting a statute saying no more than that [competitors]

may agree to fix prices.” Massachusetts Food Ass’n v. Mass. Alcoholic Beverages Control

Comm’n, 197 F.3d at 563-64. As Justice Powell famously stated, “[t]he national policy in

favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement

over what is essentially a private price-fixing arrangement.” California Retail Liquor Dealers

Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 106.

       From these principles, we can conclude that a state’s own actions are not subject to

antitrust preemption. See Hoover v. Ronwin, 466 U.S. 558, 568 (1984). But when private

parties participate in anti-competitive conduct purportedly authorized by state action, a closer

question arises. See id.; FTC v. Ticor Title Ins. Co., 504 U.S. 621, 633 (1992). Such

conduct is shielded from antitrust liability only if it is “clearly articulated and affirmatively

expressed as state policy” and “actively supervised by the State itself.” California Retail

Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 105 (internal quotation marks

omitted).

                                               35
       Our conclusion that plaintiffs failed to prove that New York’s Escrow and Contraband

Statutes authorize Sherman Act violations obviates the need for detailed analysis of whether

their alleged anti-competitive aspects are clearly articulated, affirmatively expressed, or

actively supervised. See Freedom Holdings I, 357 F.3d at 223; IA Areeda & Hovenkamp,

supra, ¶ 221a, at 42. Indeed, Hoover suggests that “anticompetitive conduct performed

entirely by state actors, without any private involvement, . . . effectively satisfie[s] the Midcal

supervision requirement.” Freedom Holdings I, 357 F.3d at 232 n.27. A number of our sister

circuits have relied on Hoover to hold that the MSA and statutes enacted in furtherance of

it constitute unilateral state action exempt from the application of the antitrust laws. See

Xcaliber Int’l Ltd. v. Attorney Gen. of La., 612 F.3d at 378-80 & n.11 [5th Cir.]; Grand River

Enters. Six Nations, Ltd. v. Beebe, 574 F.3d at 939-41 [8th Cir.]; Sanders v. Brown, 504 F.3d

at 914-19 [9th Cir.]. While we generally agree with this approach, we nevertheless apply the

Midcal test “out of an abundance of caution” to explain why we reject plaintiffs’ argument

that the district court erred in finding the challenged statutes to constitute state action

immune from antitrust preemption. Costco Wholesale Corp. v. Maleng, 522 F.3d 874, 888

(9th Cir. 2008).

       At the outset, we observe that the nature of the clear articulation and active

supervision required by Midcal necessarily varies with the nature of the challenged restraint.

Thus, state authorization is sufficiently clear when “the legislature contemplated the kind of

action” challenged. City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 415 (1978)

(plurality opinion) (internal quotation marks omitted). Likewise, “the active supervision

                                                36
requirement mandates that the State exercise ultimate control over the challenged

anticompetitive conduct.” Patrick v. Burget, 486 U.S. at 101. When, in Freedom Holdings

I, we concluded that New York had not sufficiently articulated “why the market-share

provisions are needed to effectuate state policy goals,” 357 F.3d at 228, or actively

supervised “the pricing decisions within the allegedly-anticompetitive market structure

enforced by the Contraband Statutes,” id. at 231, we relied on plaintiffs’ allegations that the

challenged statutes coerced NPMs into joining the MSA, under which OPMs exercised

effective authority to fix prices and control market shares. Because plaintiffs failed to prove

these allegations at trial, however, their claim reduces to a challenge to what is effectively

a flat tax whose only arguably “anti-competitive” effect is to raise cigarette prices.

                     a.      The Creation of an Escrow Fund and Enforcement of Payment
                             Obligations Are Clearly Articulated and Affirmatively
                             Expressed as State Policy

       Midcal’s clear articulation/affirmative expression requirement “ensure[s] that state

action immunity is afforded only to actions taken by the state.” Id. at 227. In Freedom

Holdings I, we easily concluded that the entire MSA scheme satisfied this requirement

because “agreement to the MSA by the New York Attorney General, approval of it by a New

York court, and passage of the [Escrow and] Contraband Statutes were express acts of the

State of New York.” Id. (footnote omitted). At the same time, we suggested that the

requirement also serves the “ancillary purpose” of revealing whether “the State’s policy goals

are sufficient to qualify for the Parker immunity,” observing that “simply protecting private

parties from competition is not a sufficient goal.” Id. at 227 (citing Parker v. Brown, 317

                                              37
U.S. at 351-52). Although we did not think that matter could be resolved at the pleading

stage, see id. at 216, we doubted “that a federal court would upset a state statute solely

because it failed to meet the explanatory aspect of the first Midcal prong,” id. at 227. Indeed,

we later clarified that our initial rejection of state action immunity in Freedom Holdings I

“expressly relied on the challenged scheme’s failure to meet the second Midcal prong.”

Freedom Holdings II, 363 F.3d at 157.

       Now, after trial, with plaintiffs having failed to prove that the challenged statutes

operated as anything more than a flat tax, we can conclude that the record permitted the

district court to find even the ancillary purpose of the first Midcal requirement satisfied.17

As we observed in Freedom Holdings I, a flat tax, far from “shelter[ing] private parties from

the Sherman Act solely in order [for the state] to share monopoly profits,” 357 F.3d at 230,

would bear a sufficient nexus to policy goals of deterring smoking and raising revenue for

tobacco-related health expenses to justify Parker immunity, see id. at 229. These goals are

expressly articulated in the Escrow Statute, which references the “serious public health

concerns” posed by cigarettes, N.Y. Pub. Health Law § 1399-nn(1); the “serious financial

concerns for the state” in having to fund related health-care programs, id. § 1399nn(2)-(4);



       17
         We have no occasion to consider whether, to the extent a different plaintiff might
have standing to challenge the MSA as distinct from the Escrow and Contraband Statutes,
New York could offer a justification for any alleged market division among MSA
participants to satisfy the ancillary purpose of the first Midcal requirement. See Freedom
Holdings III, 447 F. Supp. 2d at 258 (observing that “increased marginal costs to the SPMs
above the grandfathered levels can be viewed as a means of recouping those funds which
were lost to the states through the grandfather provision”).

                                              38
and the MSA requirement that cigarette manufacturers “pay substantial sums to the state,”

id. § 1399-nn(5). Thus, the state determined that it was in its interest “to require that [NPMs]

establish a reserve fund to guarantee a source of compensation [for cigarette-related injuries

caused by their products] and to prevent such manufacturers from deriving large, short-term

profits and then becoming judgment-proof before liability may arise.” Id. § 1399-nn(6).

There is a sufficient nexus between these identified purposes and the required escrow

payments to preclude us from second-guessing the state’s choice of means to achieve its

articulated policy. See Freedom Holdings I, 357 F.3d at 229; accord Massachusetts Food

Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197 F.3d at 565; cf. Freedom

Holdings II, 363 F.3d at 156 (questioning state’s ability to refute hypothetical antitrust

challenge to statute authorizing price fixing of car washes by assertion that law would

improve performance of state symphony).

       Plaintiffs do not dispute that the challenged statutes clearly articulate and affirmatively

express state policy. Nor do they challenge the state’s ability to pass laws addressing health

concerns associated with smoking. Rather, they submit that defendants cannot satisfy the

ancillary explanatory purpose of Midcal because the MSA requires states to become “active

participants in the cartel.” Appellants’ Br. at 68. Specifically, they contend that the NPM

adjustment, which provides a substantial incentive for states to pass escrow laws, removes

the challenged statutes from the scope of Parker immunity. We disagree.

       In Parker, the Supreme Court observed that there was “no question of the state or its

municipality becoming a participant in a private agreement or combination by others for

                                               39
restraint of trade,” and that the challenged statute “made no contract or agreement and

entered into no conspiracy in restraint of trade or to establish monopoly.” 317 U.S. at 351-

52. While some courts had read this language to establish an exception to Parker immunity

when private parties “conspired” with the government to pass laws restraining trade, see, e.g.,

Whitworth v. Perkins, 559 F.2d 378 (5th Cir. 1977), the Supreme Court has since foreclosed

this argument by holding that “[t]here is no such conspiracy exception,” City of Columbia

v. Omni Outdoor Adver., Inc., 499 U.S. at 374-75 (observing that quoted language from

Parker “should not be read to suggest the general proposition that even governmental

regulatory action may be deemed private – and therefore subject to antitrust liability – when

it is taken pursuant to a conspiracy with private parties” (emphasis in original)). The

Supreme Court observed that “[t]he impracticality of such a principle is evident if, for

purposes of the exception, ‘conspiracy’ means nothing more than an agreement to impose

the regulation in question.” Id. at 375. Here, the NPM adjustment reflects, at most, the sort

of agreement to take regulatory action that the Supreme Court has held insufficient, by itself,

to deprive state action of Parker immunity. See also id. at 376 (rejecting proposed exceptions

to state action immunity even for government “corruption” or “abandonment of public

responsibilities to private interests”).

       Perhaps recognizing that City of Columbia precludes our recognition of a conspiracy

exception, plaintiffs urge us to conclude that the settling states, through the MSA, “engage[d]

in interstate commerce as commercial participants.” Appellants’ Reply Br. at 27. While the

possibility of a market participant exception is left open in City of Columbia, 499 U.S. at

                                              40
374-75, 379, the trial record does not support its application here. New York neither

manufactures nor distributes cigarettes in the market. See id. at 374-75; cf. IA Areeda &

Hovenkamp, supra, ¶ 221, at 49 (noting that City of Columbia suggests that private price-

fixing conspiracy “is not immunized because one of the producers is state-owned”). New

York simply regulates certain manufacturers, requiring them to make specified payments so

that “the state will have an eventual source of recovery from them if they are proven to have

acted culpably.” N.Y. Pub. Health Law § 1399-nn(6). Whatever the policy arguments for

or against such legislation, it does not render the state a market participant subject to antitrust

liability.

                      b.      The Flat Tax Imposed and Enforced by the Challenged Statutes
                              Is Actively Supervised by the State

        Having concluded that the challenged statutes are clearly articulated and affirmatively

expressed as state policy, we now consider whether they are actively supervised by the state.

In Freedom Holdings I, we concluded that the state could not satisfy this requirement at the

pleading stage because “[n]either the New York statutes, the MSA, nor any other New York

law or regulation ‘actively supervise[s]’ the pricing decisions within the allegedly-

anticompetitive market structure enforced by the Contraband Statutes.” 357 F.3d at 231

(second alteration in original); accord Freedom Holdings II, 363 F.3d at 157 (observing that

it was “too soon to say whether the state will ultimately be able to elicit evidence sufficient

to meet this second prong”). We now consider the state’s supervision of the challenged

statutes in light of plaintiffs’ trial failure to prove that the challenged statutes impose


                                                41
anything more anti-competitive than a flat tax on NPMs, and we conclude that the district

court reasonably found the second Midcal requirement satisfied.

       The active supervision required to secure state action immunity necessarily depends

on the facts of each case. As noted supra at [25-26], the laws challenged in Midcal and 324

Liquor effectively allowed one private party to set the prices charged by another private

party. See 324 Liquor Corp. v. Duffy, 479 U.S. at 340; California Retail Liquor Dealers

Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 103. Thus, the Supreme Court’s determination

that the state did not actively supervise the challenged programs in those cases relied on the

fact that the state “‘neither establishes prices nor reviews the reasonableness of the price

schedules.’” 324 Liquor Corp. v. Duffy, 479 U.S. at 345 (quoting California Retail Liquor

Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 105). By contrast, in this case, the state

itself determines the increased cost to NPMs attributable to escrow payments. See N.Y. Pub.

Health Law § 1399-pp(2).

       This case is thus more akin to the situation distinguished by the Court in 324 Liquor

Corp., when it observed that a “simple ‘minimum markup’ statute . . . may satisfy the ‘active

supervision’ requirement.” 479 U.S. at 344 n.6. In support, the Court cited Morgan v.

Division of Liquor Control, 664 F.2d 353 (2d Cir. 1981), in which this court upheld

Connecticut’s alcohol markup statute. In Morgan, we emphasized that the active supervision

test was met by the state’s “structuring a detailed mechanism for determining prices for

alcoholic beverages.” Id. at 356. The critical difference then is that, in one case, a private

party sets the minimum resale price (without state input or supervision) while, in the other,

                                             42
the state supplants normal market mechanisms only to the extent it mandates the markup.

In the latter circumstance, “although the hypothetical statute could eliminate price

competition among retailers, that would result from the choice of the state rather than from

the choice of the wholesaler. Similarly, the amount of the minimum markup would be

determined by the state, not by the wholesaler . . . . Accordingly, there would be nothing to

supervise.” IA Areeda & Hovenkamp, supra, ¶ 226e, at 194; see also Costco Wholesale

Corp. v. Maleng, 522 F.3d at 899 (upholding minimum markup on this ground).

       Here, plaintiffs’ antitrust argument reduces to a claim that the challenged statutes, by

raising their costs, have the effect of raising cigarette prices. It is undeniably the state,

however, that determines the cost increase by fixing the required escrow payments. See, e.g.,

N.Y. Pub. Health Law § 1399-pp(2)(a)(v) (requiring NPMs to contribute “for each of 2007

and each year thereafter: $.0188482 per unit sold”); cf. Morgan v. Div. Liquor Control, 664

F.2d at 356 (referencing state’s “detailed mechanism for determining prices”). Thereafter,

normal market mechanisms function. Indeed, as plaintiffs acknowledged at oral argument,

NPMs can charge whatever price they wish, as long as they make the specified escrow

payments. Thus, like the hypothetical minimum markup in 324 Liquor, the increase in

cigarette prices attributable to the challenged statutes “result[s] from the choice of the state

rather than from the choice of” cigarette manufacturers. IA Areeda & Hovenkamp, supra,

¶ 226e, at 194. Accordingly, because the statute specifies the exact component of the inflated

price attributable to the state, “there is nothing that the state can ‘actively supervise’ except

to see that the statutory requirements are obeyed – and there is no claim that the state has

                                               43
neglected this.” Battipaglia v. N.Y. State Liquor Auth., 745 F.2d 166, 176 (2d Cir. 1984)

(Friendly, J.); see also IA Areeda & Hovenkamp, supra, ¶ 226e, at 194.

       Plaintiffs do not dispute that the state has engaged in this form of supervision. Indeed,

the record shows that the state (1) reviews audit reports detailing the competitive effects of

the MSA and challenged statutes, and (2) has responded to these reports by enacting (a) the

Contraband Statute and (b) the allocable share release amendment. Rather, characterizing

the state as an “active participant[] in [a] commercial enterprise,” plaintiffs maintain that it

would be “paradoxical” for us to conclude that the state’s active enforcement of the Escrow

Statute satisfies the active supervision prong because, they claim, the statute “is the primary

tool for insulating the [participating manufacturers] from consumer oriented price

competition.” Appellants’ Reply Br. at 29. We are not persuaded.

       As the Supreme Court noted in rejecting a conspiracy exception to Parker immunity,

“it is both inevitable and desirable that public officials often agree to do what one or another

group of private citizens urges upon them.” City of Columbia v. Omni Outdoor Adver., Inc.,

499 U.S. at 375. Depending on which party’s brief one reads, the purpose and effect of the

challenged legislation is either to “destroy” NPMs or “to level the playing field.” Compare

Appellants’ Br. at 22, with Appellees’ Br. at 12, 50, 51 n.13. A federal court cannot,

however, use the antitrust laws to “second-guess[]” clearly articulated, properly supervised

state policy judgments. Freedom Holdings I, 357 F.3d at 229; Massachusetts Food Ass’n v.

Mass. Alcoholic Beverages Control Comm’n, 197 F.3d at 565. The purpose of Midcal

analysis is simply to ascertain “whether anticompetitive conduct engaged in by private

                                              44
parties should be deemed state action” immune from antitrust laws. Patrick v. Burget, 486

U.S. at 100. Thus, plaintiffs’ intimation that the challenged statutes have harmed them is not

relevant to a court’s determination of whether it is the state itself that has imposed the very

restraint about which they complain and satisfactorily supervised its operation. See Hoover

v. Ronwin, 466 U.S. at 567-68. Accordingly, we conclude that the trial record supports a

finding that New York’s control and active enforcement of escrow payment obligations

satisfies the second Midcal requirement.

       Once again, we note the limited reach of our ruling, which does not foreclose

challenges to other potentially anti-competitive conduct in the tobacco industry. In this

regard, our decision is consistent with that of the Third Circuit in Bedell, on which Freedom

Holdings I relied to conclude that the state had not satisfied the active supervision

requirement at the pleading stage. The Bedell plaintiffs were a class of cigarette wholesalers

– not NPMs – who claimed to suffer losses because the major tobacco companies “imposed

artificially high prices on direct purchasers.” 263 F.3d at 247 (internal quotation marks

omitted). The Third Circuit concluded that such plaintiffs had standing to challenge the

restraints imposed by the MSA itself, specifically the SPM pricing formula for allegedly

penalizing gains in market share. See id. In this case, where plaintiffs’ claim of antitrust

injury derives from the Escrow and Contraband Statutes, see supra at [22-24 & n.14], we

hold simply that the district court reasonably concluded from the trial evidence that those

legislative enactments of state policy neither mandate nor authorize private parties to exercise

unsupervised power to restrain trade.

                                              45
       C.      Commerce Clause Claim

       The Constitution’s affirmative grant of power to Congress “[t]o regulate Commerce

. . . among the several States,” U.S. Const. art. I, § 8, cl. 3, has long been construed to imply

a negative counterpart, commonly referred to as the dormant Commerce Clause, restraining

state authority over interstate commerce, see, e.g., United Haulers Ass’n v. Oneida-Herkimer

Solid Waste Mgmt. Auth, 550 U.S. 330, 338 (2007); American Trucking Ass’ns v. Mich.

Pub. Serv. Comm’n, 545 U.S. 429, 433 (2005). In appealing the district court’s rejection

after trial of their dormant Commerce Clause challenge to New York’s Escrow and

Contraband Statutes, plaintiffs do not contend – nor could they – that these laws discriminate

against interstate commerce either facially or in incidental effect. See Freedom Holdings I,

357 F.3d at 217-19; see also Wyoming v. Oklahoma, 502 U.S. 437, 454-55 (1992); Pike v.

Bruce Church, Inc., 397 U.S. 137, 142 (1970). Instead, they submit that the district court

erred in failing to hold the statutes invalid because the combined extraterritorial effects of (1)

forty-six state escrow statutes, (2) forty-four contraband statutes, and (3) forty-four amended

allocable share release provisions practically result in national regulation of cigarette prices,

which “may not be accomplished piecemeal through the extraterritorial reach of individual

state statutes.” Healy v. Beer Inst., 491 U.S. 324, 340 (1989); accord Grand River Enters.

Six Nations, Ltd. v. Pryor, 425 F.3d at 171.18


       18
          A court may analyze a claim that a state statute is invalid because it regulates
commerce extraterritorially either as a disproportionate burden on commerce under the
balancing test set forth in Pike v. Bruce Church, Inc., 397 U.S. at 142, or, as plaintiffs’ claim
requires here, “independently . . . as a question of regulatory jurisdiction rather than one of

                                               46
       In support, plaintiffs rely heavily on our decision in Grand River, which recognized

a possible claim by a different group of NPMs: “that the practical effect of the challenged

statutes and the MSA is to control prices outside of the enacting states.” 425 F.3d at 173.

We took “no position as to the ultimate viability” of a dormant Commerce Clause challenge

to the alleged arrangement. Id. Rather, we concluded that “not dismissing this claim at the

pleading stage is consistent with the district court’s decision to reinstate the Sherman Act

claim, which alleged that the MSA and interrelated statutes restrained trade and affected

market prices.” Id. In so holding we noted that the Grand River complaint alleged facts not

pleaded in Freedom Holdings I: “that the [challenged statutes] are inconsistent with the

legitimate regulatory regimes of other states, that [they] force out-of-state merchants to seek

New York regulatory approval before undertaking an out-of-state transaction, or that any sort

of interstate regulatory gridlock would occur if ‘many or every’ state adopted similar

legislation.” Id. at 171 (quoting Freedom Holdings I, 357 F.3d at 221). Although plaintiffs

amended their complaint to conform with Grand River, they developed little evidence at trial

to support the three allegations noted in that case. Nor do they offer much by way of analysis

on appeal as to how the challenged statutes fall into any of the three categories. They simply

label state statutes an “interlocking grid” and assume that judicial condemnation will follow


regulatory discrimination,” Freedom Holdings I, 357 F.3d at 216 n.11 (citing Healy v. Beer
Inst., 491 U.S. at 336, and Edgar v. MITE Corp., 457 U.S. 624, 643 (1982) (plurality
opinion) (“The limits on a State’s power to enact substantive legislation are similar to the
limits on the jurisdiction of state courts. In either case, any attempt directly to assert
extraterritorial jurisdiction over persons or property would offend sister States and exceed
the inherent limits of the State’s power.” (internal quotation marks omitted)).

                                              47
under the Commerce Clause. Appellants’ Br. at 55, 57; see also id. at 5, 53, 56; Appellants’

Reply Br. at 3, 6. Like the district court, we are not persuaded.

       Two Supreme Court decisions provide useful guidance in reviewing Commerce

Clause challenges to “interlocking” state statutes. First, in Brown-Forman Distillers Corp.

v. New York State Liquor Authority, 476 U.S. 573 (1986), the Court invalidated a provision

of New York’s Alcoholic Beverage Control Law requiring distillers to affirm that the

schedule of prices filed in New York “is no higher than the lowest price at which such item

of liquor will be sold . . . anywhere in any other state of the United States” during the month

covered by the schedule, id. at 576. Under the challenged law, the New York Liquor

Authority prohibited payments of promotional allowances to wholesalers, a practice allowed

in other states. See id. at 577-78. The New York Liquor Authority could “for good cause”

permit distillers to change their posted prices. Id. at 582 n.5. The Court held that the

“practical effect” of the challenged regulatory regime was to “control liquor prices in other

States” because, once a distiller posted prices in New York, it could not lower prices

elsewhere in the country without obtaining New York’s “regulatory approval.” Id. at 582-83.

Further, the Court noted that “the proliferation of state affirmation laws . . . has greatly

multiplied the likelihood that a seller will be subjected to inconsistent obligations in different

States.” Id. at 583. Because New York’s position on promotional payments was inconsistent

with that of other states, New York effectively forced Brown-Forman “to abandon its

promotional allowance program in States in which that program is legal.” Id. at 584.

       In Healy v. Beer Institute, 491 U.S. 324, the Supreme Court invalidated a Connecticut

                                               48
law requiring beer shippers to affirm that their posted prices were no higher than prices in

border states. Connecticut further made it unlawful to sell beer in that state at a price higher

than that charged in bordering states during the month covered by the posting. See id. at 329.

The Court held that “the practical effect of the statute must be evaluated not only by

considering the consequences of the statute itself, but also by considering how the challenged

statute may interact with the legitimate regulatory regimes of other States and what effect

would arise if not one, but many or every, State adopted similar legislation.” Id. at 336.

Noting that Massachusetts required brewers to post prices a month before they took effect,

the Supreme Court concluded that the Connecticut law had the practical effect of requiring

a brewer “on January 1, when [he] posts his February prices for Massachusetts, [to] take

account of the price he hopes to charge in Connecticut during the month of March.” Id. at

338. If the border states “each enacted statutes essentially identical to Connecticut’s,” the

problem was only compounded:

       Under those circumstances, in January, when a brewer posts his February
       prices in Connecticut and the border States, he must determine those prices
       knowing that the lowest bottle, can, or case price in any State would become
       the maximum bottle, can, or case price the brewer would be permitted to
       charge throughout the region for the month of March. This is true because in
       February, when the brewer posts his March prices in each State, he will have
       to affirm that no bottle, can, or case price is higher than the lowest bottle, can,
       or case price in the region – and these “current” prices would have been
       determined by the January posting. Put differently, unless a beer supplier
       declined to sell in one of the States for an entire month, the maximum price in
       each State would be capped by previous prices in the other States. This
       maximum price would almost surely be the minimum price as well, since any
       reduction in either State would permanently lower the ceiling in both.

Id. at 339-40. The Court described this scenario as “price gridlock.” Id. at 340.

                                               49
       Applying these principles to the challenged statutes, we conclude that plaintiffs failed

to prove any similar gridlock here. By its terms, the Escrow Statute “taxes” only cigarettes

sold in New York. See N.Y. Pub. Health Law § 1399-oo(10) (defining “[u]nits sold” for

purposes of Escrow Statute as “the number of individual cigarettes sold in the state”

(emphasis added)); id. § 1399-pp(2) (specifying payments “per unit sold”); see also id. at

§ 1399-pp(2)(b)(ii) (releasing payments from escrow “to the extent that a tobacco product

manufacturer establishes that the amount it was required to place into escrow on account of

units sold in the state in a particular year was greater than the [MSA] payments . . . that such

manufacturer would have been required to make on account of such units sold had it been

a participating manufacturer” (emphasis added)). Similarly, the Contraband Statute applies

only to manufacturers “whose cigarettes are sold for consumption in this state.” N.Y. Tax

Law § 480-b(1) (emphasis added). Plaintiffs offered no evidence indicating that the practical

effect of either of these statutes reaches beyond their terms to set minimum or maximum

cigarette prices outside New York.

       We recognize that escrow payments, like any tax, increase the cost of cigarettes.

Unlike the statute struck down in Healy, however, nothing prevents manufacturers from

recouping increased costs imposed by New York law from New York consumers. See

National Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 110 (2d Cir. 2001) (“In cases like Healy,

the state necessarily prevented firms from recouping any of the costs imposed by the state

statute from the residents of the state itself. Here, the manufacturers remain free to charge

higher prices only to Vermonters without risking violation of the statute.”); see also Baldwin

                                              50
v. G.A.F. Seelig, Inc., 294 U.S. 511, 521 (1935) (Cardozo, J.) (upholding injunction against

enforcement of New York milk pricing statute because “New York has no power to project

its legislation into Vermont by regulating the price to be paid in that state for milk acquired

there”). In short, plaintiffs cannot show that the challenged statutes violate the Commerce

Clause by “depriv[ing] businesses and consumers in other States of ‘whatever competitive

advantages they may possess’ based on the conditions of the local market.’” Healy v. Beer

Inst., 491 U.S. at 339 (quoting Brown-Forman Distillers Corp. v. N.Y. Liquor Auth., 476

U.S. at 580); accord SPGGC, LLC v. Blumenthal, 505 F.3d 183, 193 (2d Cir. 2007).

       Further, while the enactment of similar escrow and contraband statutes in most states

has caused cigarette prices to rise nationwide, such statutes impose no inconsistent

obligations, which might evidence extraterritorial regulation proscribed by the Commerce

Clause. See Brown-Forman Distillers Corp. v. N.Y. Liquor Auth., 476 U.S. at 583; see also

CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 88-89 (1987) (identifying no

inconsistency violating dormant Commerce Clause when multiple states regulate voting

rights of corporations created under their law). Certainly, plaintiffs point to no provision of

New York law requiring cigarette manufacturers to obtain the state’s “regulatory approval”

before selling or pricing cigarettes in other states. Brown-Forman Distillers Corp. v. N.Y.

Liquor Auth., 476 U.S. at 582. Accordingly, plaintiffs failed to prove that the challenged

statutes have any impermissible extraterritorial effect.

       Grand River is not to the contrary. Drawing all reasonable inferences in those

plaintiffs’ favor at the pleading stage, we concluded that they had stated a colorable claim

                                              51
“that the practical effect of the challenged statutes and the MSA is to control prices outside

of the enacting states by tying both the SPM settlement and NPM escrow payments to

national market share, which in turn affects interstate pricing decisions.” 425 F.3d at 173

(emphasis added). Such control is not evidenced simply by coincident obligations which

may produce parallel price increases among the states. In Grand River, however, we

suggested that a factfinder might be able to infer control from the fact that the allocable share

release provision, which refunds payments made by NPMs in excess of what they would

have paid as SPMs under the MSA, might effectively require NPMs to pay a “national-

market-share-dependent amount.” Id. at 172.

       Plaintiffs submit that Grand River compels us to reverse the district court’s Commerce

Clause decision because, under the amended allocable share release provision, escrow

payments are still keyed, in part, to MSA payments, which in turn depend on national market

share. We disagree. Plaintiffs adduced no evidence showing that the amended release

provision has ever been invoked. Funds are released from escrow to the extent escrow

payments exceed MSA payments, see N.Y. Pub. Health Law § 1399-pp(2)(b)(ii), but the

district court reasonably found that, in practice, MSA payments exceed escrow payments.

In the absence of contrary evidence, the district court was hardly compelled to conclude that

NPM escrow payments will actually be released from the state escrow fund in amounts

calculated by reference to national market share. See International Tobacco Partners, Ltd.

v. Kline, 475 F. Supp. 2d 1078, 1090-91 (D. Kan. 2007). Thus, even if such an indirect

reference to national market share could, in some cases, raise concerns under the dormant

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Commerce Clause, plaintiffs simply have not proved that the challenged statutes have the

practical effect of regulating commerce extraterritorially.

       Ultimately, plaintiffs’ Commerce Clause claim fails, as we said in Freedom Holdings

I, because “[m]ere ‘upstream pricing impact’ is not a violation of the dormant Commerce

Clause, even if the impact is felt out-of-state where the stream originates.” Freedom

Holdings VI, 592 F. Supp. 2d at 707 (quoting Freedom Holdings I, 357 F.3d at 220). Courts

have consistently recognized that “[t]he mere fact that state action may have repercussions

beyond state lines is of no judicial significance so long as the action is not within that domain

which the Constitution forbids.” Osborn v. Ozlin, 310 U.S. 53, 62 (1940); see also Healy v.

Beer Inst., 491 U.S. at 345 (Scalia, J., concurring) (“[I]nnumerable valid state laws affect

pricing decisions in other States.”); National Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d at 111

(noting that “it is axiomatic that the increased cost of complying with a regulation may drive

up the sales price” and rejecting argument that such increased prices evidenced dormant

Commerce Clause violation); National Paint & Coatings Ass’n v. City of Chicago, 45 F.3d

1124, 1130-31 (7th Cir. 1995) (Easterbrook, J.) (observing that “almost every state and local

law – indeed, almost every private transaction – affects interstate commerce” and warning

that if dormant Commerce Clause applied to “all laws affecting commerce – that is, to all

state and local laws addressing a subject that Congress could regulate, if it chose – then

judicial review of statutory wisdom after the fashion of Lochner would be the norm”




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(emphasis in original)).19

       A number of our sister circuits have concluded that state escrow and contraband

statutes do not regulate commerce extraterritorially in violation of the Commerce Clause.

See S&M Brands, Inc. v. Caldwell, 614 F.3d 172, 177-78 (5th Cir. 2010); Grand River

Enters. Six Nations, Ltd. v. Beebe, 574 F.3d at 943-44 [8th Cir.]; KT&G Corp. v. Attorney

Gen. of Okla., 535 F.3d at 1143-46 [10th Cir.]; Star Scientific, Inc. v. Beales, 278 F.3d 339,

354-57 (4th Cir. 2002). We reach the same conclusion in this case. Plaintiffs having been

afforded the opportunity to prove at trial that New York’s Escrow and Contraband Statutes

did, in fact, impermissibly regulate interstate commerce, and having failed to carry their

burden, we affirm the judgment of the district court in favor of defendants.

III.   Conclusion

       To summarize, we conclude as follows:

       1.     The record evidence supports the district court’s finding that plaintiffs failed


       19
           Commentators have also cautioned that the Commerce Clause’s ban on
extraterritorial regulation must be applied carefully so as not to invalidate many state laws
that have permissible extraterritorial effects. See generally Gillian E. Metzger, Congress,
Article IV, and Interstate Relations, 120 Harv. L. Rev. 1468, 1521 (2007) (“[T]he extent of
the prohibition on the states themselves should not be overstated. In practice, states exert
regulatory control over each other all the time . . . . The prohibition on extraterritorial
legislation is thus understood only to constrain a state from formally asserting legal authority
outside its borders . . . .”); Mark D. Rosen, Extraterritoriality and Political Heterogeneity in
American Federalism, 150 U. Pa. L. Rev. 855, 919-30 (2002) (arguing that ban on
extraterritorial regulation applies only to protectionist laws, regulations of non-citizens, and
inconsistent regulations); Jack L. Goldsmith & Alan O. Sykes, The Internet and the Dormant
Commerce Clause, 110 Yale L.J. 785, 795 (2001) (“Innumerable state laws affect outsiders,
and no one thinks that all (or even most) of these laws violate the dormant Commerce
Clause.”).

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to prove that New York’s Escrow and Contraband Statutes delegate any regulatory power

to private parties. Accordingly, the district court properly concluded that the challenged

statutes are not preempted by the Sherman Act.

       2.    The record evidence further supports the district court’s determination that any

potentially anti-competitive aspects of the New York Escrow and Contraband Statutes were

clearly articulated and affirmatively expressed as state policy as well as actively supervised

by the state itself, such that defendants qualified for state action immunity as recognized in

Parker v. Brown, 317 U.S. 341.

       3.     Plaintiffs’ failure to prove that the challenged statutes have an extraterritorial

effect on commerce supports the district court’s rejection of their dormant Commerce Clause

challenge to the New York Escrow and Contraband Statutes.

       AFFIRMED.




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