State Action Immunity and Municipalities: The Sherman Act Looks for New Territory: \u3ci\u3eWhitworth v. Perkins\u3c/i\u3e, 559 F.2d 378 (5th Cir. 1977)

Numerous exemptions from the antitrust laws have been recognized to facilitate certain activities which cannot (or for various reasons, should not) be carried on in a competitive atmosphere. In Parker v. Brown (1943), the Supreme Court recognized that federal and state governments would not be subject to the antitrust laws for official governmental activities. Under the so-called Parker state action exemption, the Court held that a state was exempt from prosecution when it acted through its legitimate state agencies or officers pursuant to legislative authority. Recently, however, the state action exemption has been a highly litigated antitrust area. There has been much difficulty in consistently applying the state action doctrine to municipalities. Such was the case in Whitworth v. Perkins, in which the fifth circuit was presented with the issue whether the acts of a municipality were immune under Parker. The case provided the court with an opportunity to articulate which factors are relevant to a consideration of the immunity defense. However, as this Note discusses, the court failed to do so and thus added to the existing uncertainty in the area