American General Insurance Company v. FTC, 73-2905.
Citation | 496 F.2d 197 |
Decision Date | 27 June 1974 |
Docket Number | No. 73-2905.,73-2905. |
Parties | AMERICAN GENERAL INSURANCE COMPANY and Fidelity and Deposit Company of Maryland, Plaintiffs-Appellants, v. FEDERAL TRADE COMMISSION et al., Defendants-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Leroy Jeffers, John L. Murchison, Jr., David T. Harvin, George F. Reed, Houston, Tex., for Amer. Gen. Ins. Co.
Richard F. Ober, Gen. Counsel, Decatur H. Miller, Baltimore, Md., for Fidelity & Deposit Co. of Maryland.
Charles Tobin, Secretary, Ernest G. Barnes, Asst. Director, Nicholas S. Reynolds, Louis R. Sernoff, Attys., Federal Trade Commission Washington, D. C., Robert E. Kopp, Dept. of Justice, Neil H. Koslowe, Washington, D. C., Gerald Hardwood, Actg. Asst. Gen. Counsel, John T. Fischbach, Atty., Federal Trade Commission, Washington, D. C., for defendants-appellees.
Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
In this case, plaintiffs-appellants seek to enjoin the Federal Trade Commission from proceeding against them under § 7 of the Clayton Act, 15 U.S.C. § 18, on the ground that the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-1015, deprives the Commission of jurisdiction over the case. Finding that any such injunction would be premature at this time, we affirm the district court's dismissal of the complaint.
On June 17, 1971, the Commission issued a complaint, Commission Docket No. 8847, against the Texas-based American General Insurance Co., charging that American General had violated § 7 of the Clayton Act by reason of its merger with Fidelity and Deposit Co. of Maryland. See 15 U.S.C. § 21. The complaint charged that the effect of the merger "may be substantially to lessen competition or to tend to create a monopoly in the business of underwriting fidelity and surety bonds in the United States. . . ."
Subsequently, Fidelity & Deposit was permitted to intervene in the administrative proceedings.
On December 27, 1971, American General moved for summary judgment on the issue of jurisdiction under Section 3.24 of the Commission's rules, 16 C.F. R. § 3.24. On March 7, 1972, an administrative law judge ruled that the Commission lacked jurisdiction to issue the complaint because the "States of Maryland and Texas, and many of the other states, have laws, capable of being enforced, which regulate the business of insurance, within the contemplation and meaning of the McCarran-Ferguson Act."
Commission counsel appealed the decision of the administrative law judge to the Commission. A three-member majority held that jurisdiction was not barred by the McCarran-Ferguson Act because the states could not regulate the merger activity of national insurance companies. In addition, the Commission held that "the business of insurance for which regulation by a state may preempt Federal jurisdiction does not include mergers or other combinations of enterprises engaged in the activity of selling insurance." In its opinion, the Commission vacated the initial decision and remanded the case to the administrative law judge for further proceedings.
On March 5, 1973, American General and Fidelity & Deposit filed a complaint in the United States District Court for the Southern District of Texas seeking a declaratory judgment that the Mc-Carran-Ferguson Act immunized the merger from § 7, and injunctive relief "prohibiting Defendants from conducting any further proceedings in FTC Docket No. 8847."
The court opined that were it to reach the merits, it would uphold the Commission's position: "because a state cannot regulate extraterritorially, the potential regulation of the instant merger by Texas and Maryland, the domiciliary states of the Plaintiffs, does not by way of the McCarran-Ferguson Act deprive the Commission of jurisdiction to challenge the merger under Section 7 of the Clayton Act when the impact of the merger obviously will be felt in all fifty states." The plaintiffs have appealed.
It is true that certain distinguished commentators have questioned whether the rule is as firm as the Myers Court would imply. K. Davis, Administrative Law Treatise, § 20.02 (1958). Nevertheless, it remains true that the doctrine of exhaustion "is well established in the jurisprudence of administrative law." McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 1662, 23 L.Ed.2d 194 (1969). Of course, the doctrine has numerous exceptions. Id.
In a comprehensive and learned review of this area of the law, this court in United States v. Feaster, 410 F.2d 1354 (5th Cir. 1969), cert. den., 396 U. S. 962, 90 S.Ct. 427, 24 L.Ed.2d 426 (1969), described the relevant exceptions to the rule that administrative remedies must be exhausted prior to review by the courts. The first factor which would permit premature resort to judicial remedies is an international repercussion resulting from the administrative proceedings. McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 83...
To continue reading
Request your trial-
Legal Principles Defining the Scope of the Federal Antitrust Exemption for Insurance
..., 510 U.S. 1190 (1994) The merger of two insurance companies Am. Gen. Ins. Co. v. FTC , 359 F.Supp. 887 (S.D. Tex. 1973), aff'd , 496 F.2d 197 (5th Cir. 1974) overlapping directorates between banks and insurance companies and between bank holding companies and insurance companies United Sta......
-
Ewing v. Commissioner of Internal Revenue, Docket No. 1940-01 (U.S.T.C. 1/28/2004), Docket No. 1940-01.
...under the APA because there was no final agency action and plaintiff had an adequate remedy at law under the Clayton Act), affd. 496 F.2d 197 (5th Cir. 1974); Armstrong & Armstrong, Inc. v. United States, 356 F. Supp. 514, 521 (E.D. Wash. 1973) ("As relief is at least available * * * under ......
-
Bd. of Dental Exam'rs of Ala. v. Fed. Trade Comm'n
...the general body of equitable jurisprudence and other appropriate sources for the purpose of fashioning relief." American General Ins. Co. v. F.T.C. , 496 F.2d 197, 200 (1974) (citation omitted).3 The only other precedent binding on this court was a case arising out of a suit involving the ......
-
Ewing v. Comm'r of Internal Revenue , No. 1940–01.
...under the APA because there was no final agency action and plaintiff had an adequate remedy at law under the Clayton Act), affd. 496 F.2d 197 (5th Cir.1974); Armstrong & Armstrong, Inc. v. United States, 356 F.Supp. 514, 521 (E.D.Wash.1973) (“As relief is at least available * * * under 28 U......
-
Table of cases
...Co., 368 F. Supp. 859 (N.D. Ga. 1973), 35 Am. General Ins. Co. v. FTC, 359 F. Supp. 887 (S.D. Tex. 1973), 158 Am. General Ins. Co. v. FTC, 496 F.2d 197 (5th Cir. 1974), 158 Am. Ins. Ass'n v. Clarke, 865 F.2d 278 (D.C. Cir. 1988), 35 Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183 (2......
-
Table of Cases
...General Ins. Co., 81 F.T.C. 1052 (1972), 306 American General Ins. Co. v. FTC, 359 F. Supp. 887 (S.D. Tex. 1973), aff’d on other grounds , 496 F.2d 197 (5th Cir. 1974), 306 American Hospital Supply Corp. v. Hospital Products Ltd., 780 F.2d 589 (7th Cir. 1986), 502, 503 American Key Corp. v.......
-
Statutory Exemptions for Regulated Industries
...at 460. 55. Id. at 459-60. 56. 359 F. Supp. 887 (S.D. Tex. 1973) (denying injunction against FTC proceeding), aff ’d on other grounds , 496 F.2d 197 (5th Cir. 1974). 57. Id. at 896-97. At least one court has held that the McCarran-Ferguson exemption does not apply to nationwide insurance me......
-
Table of Cases
...1962), aff’d , 323 F.2d 124 (4th Cir. 1963), 270 American Gen. Ins. Co. v. FTC, 359 F. Supp. 887 (S.D. Tex. 1973) aff’d on other grounds, 496 F.2d 197 (5th Cir. 1974), 284 American Gen. Ins. Co., In re, 81 F.T.C. 1052 (1972), 284 A Handbook on the Scope of Antitrust American Int’l Grp. v. I......