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A not uncommon scenario: after examining the charred debris of a property fire, investigators note that the building’s alarm failed to sound and automatic sprinkler system similarly failed to activate because neither had been inspected or maintained for over a year. The policy that insured the property conditioned coverage on the protective safeguards’ maintenance and functionality. The insured’s failure to satisfy these conditions bars coverage for the loss.
But the insured’s failure to satisfy the conditions does not necessarily foreclose coverage for others. Individuals or entities named under the policy’s “standard” mortgage clause or “Mortgageholders” clause in ISO forms are not subject to coverage defenses applicable to the insured, leaving insurers still potentially liable for the loss.
Under a [loss payee] clause, a mortgagee is merely an appointee who receives insurance proceeds subject to its interest in the policy and to the extent of the insured’s right of recovery. The rights of a mortgagee under a [loss payee] clause are wholly dependent on the rights of the insured and are subject to all of the same defenses to coverage as the insured. A standard mortgage clause, on the other hand, creates a separate and independent contract between the insurer and the mortgagee. Under such circumstances, the mortgagee is liable only for its own breaches and is protected from being denied coverage based on the acts or omissions of the named insured or the insured’s noncompliance with the terms of the policy.
For clarity, this article refers to the clauses as the standard mortgage clause and the loss payee clause.
It may seem harsh to compel an insurer to pay for loss clearly excluded by the policy or even preventable had the insured complied with the policy’s conditions, but this is why the standard mortgage clause exists.
[T]he purpose of a standard clause is to protect the named mortgagee and assure that the mortgagor or insurer cannot defeat its insurance interests. Typically, a mortgagee has no control over a mortgagor’s representations and no knowledge or means of knowledge of facts upon which the mortgagor’s representations are based. Standard clauses are included in insurance policies in order to prevent the mortgagee from being bound by acts over which he has no control: the indemnity of the mortgagee is not placed at the whim of his debtor, and is subject only to breaches of which the mortgagee, is, himself, guilty.
A few recent cases from Illinois illustrate the durability of the standard mortgage clause in resisting otherwise applicable barriers to coverage.
In Sagar Megh Corporation v. United National Insurance Company, the court had previously held that the insured’s compliance with a protective safeguards endorsement was a question for the jury, yet did not delay issuing a second opinion addressing whether the mortgagee’s recovery rights were impacted by that compliance. Recognizing the policy’s “standard” mortgage clause, the court held “the act of a mortgagor-owner-insured cannot affect the right of the mortgage-loss payee to recover under the insurance policy” and the insurer was “prevented from asserting the defenses it has against Sagar Megh against” the mortgagee. The standard mortgage clause rendered resolution of the insured’s compliance with the protective safeguards endorsement completely irrelevant to analyzing coverage for the mortgagee.
In Old Second National Bank v. Indiana Insurance Company, the court analyzed whether a mortgagee could recover under a policy that excluded coverage for buildings vacant longer than 60 days and where the trial court had already held the building’s vacancy excluded coverage for the insureds, who had left it vacant. The insured did not dispute that the policy contained a “standard” mortgage clause. Instead, the insurer argued that “it was within its rights to define the scope of the risk that it assumed, and that vacant buildings, notoriously subject to increased exposure to vandalism and theft, were expressly excluded from that risk under the terms of its policy” and that “the fact that the building was allowed to remain vacant for sixty days was not an ‘act’ or default of the insured, but merely amounted to an unacceptable condition of risk.” The court agreed that an insurer may set limits of its liability under a policy, but held “the vacancy clause did not relieve the insurer of responsibility to cover the mortgagee, as long as the mortgagee met its responsibilities under the policy” and the loss did not result from the mortgagee’s breach of the policy.
Unfortunately for property insurers, these holdings are not unique to Illinois. In light of this adverse case law concerning the nearly absolute right of mortgagees to recover under property insurance policies, insurers should remember that disclaiming property coverage based on an exclusion or failure to meet a policy condition will not close the matter if a mortgagee is named on the policy and a strategy should be formulated to resolve the mortgagee’s claims quickly and efficiently.
 Hastings v. Westchester Fire Ins. Co., 73 N.Y. 141, 154 (1878) (Rapello, J., concurring).
 Stonegate Ins. Co. v. Hongsermeier, 2017 IL App (1st) 151835, ¶ 17, 72 N.E.3d 869, 874–75 (citations and internal quotations omitted).
 49 Ill.App.2d 209, 211, 199 N.E.2d 44, 45 (Ill. App. Ct. 1964).
 Id. at 215, 47 (citing Crawford, for Use of Stone v. Aachen & Munich Fire Ins. Co., 100 Ill. App. 454, 454 (Ill. App. Ct.), aff’d sub nom. Aachen & Munich Fire Ins. Co. v. Crawford, 199 Ill. 367, 65 N.E. 134 (1902)).
 LaSalle Nat. Bank v. Fed. Emergency Mgmt. Agent, No. 84 C 9066, 1985 WL 2081, at *4 (N.D. Ill. July 26, 1985) (internal citations and quotations omitted).
 No. 12-CV-4959, 2013 WL 5951771, at *6 (N.D. Ill. Nov. 6, 2013).
 999 F. Supp. 2d 1018, 1022 (N.D. Ill. 2013).
 2015 IL App (1st) 140265, ¶ 14.
 Id. at ¶ 25 (citations omitted).
 2017 IL App (1st) 151835, ¶ 32, at 878.
 Id. at ¶ 32, 878–79.
 Id. at ¶ 34, 879 (citing W. Bend Mut. Ins. Co. v. Salemi, 158 Ill. App. 3d 241, 249, 511 N.E.2d 785, 789 (Ill. App. Ct. 1987)).


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We want you to know what data we gather and when and how we use it. We take technical and organisational measures to ensure that we and our external service providers comply with data protection regulations. Our employees are also made aware of data protection by undergoing special training.
The following gives a simple overview of what happens to your personal data when you visit our website.
Your personal data (Sect. 3 Para. 1 GDPR) will only be stored if you have voluntarily submitted it on these websites, for example, when you fill out a contact form. Details you provide in contact forms or emails are only used to process your request. This data is treated with strict confidentiality and is not passed on without your express permission.
It goes without saying that this only takes place within the legal framework, insofar as it is necessary and you have given your permission. We pay particular attention to the principles of data avoidance and data minimisation.
The data collected on this website is processed by the website operator. The operator's contact details can be found in the website's required legal notice.
Some of your data is collected when you provide it to us. This could, for example, be data you enter on a contact form.
Other data is collected automatically by our IT systems when you visit the website. This is primarily technical data (for example, the browser and operating system you are using or the time at which you accessed the page). This data is collected automatically as soon as you enter our website.
This only includes information which cannot be traced back to you individually. We, and third parties acting on our behalf, only use this data for statistical purposes and in anonymised form to optimise our website and to make it more user-friendly, effective and secure.
You always have the right to request information about your stored data, its origin, its recipients, and the purpose of its collection at no charge. You also have the right to request that it be corrected, blocked, or deleted. You can contact us at any time using the address given in the legal notice if you have further questions about the issue of privacy and data protection. You may also, of course, file a complaint to the relevant regulatory authorities.
Persons under 16 years should not submit any personal information to us without the consent of their parents or legal guardians. We do not request or collect personal information from children or young people, nor do we pass this on to third parties.
When are changes made to the data protection policy?
Our data protection policy is regularly revised and updated in accordance with the applicable legal data protection regulations. From time to time we publish updates on our website. This allows you to keep yourself up to date on the current status.
We work with the responsible party to determine the purposes and means for processing personal data (e.g. names, email addresses etc.).
If there has been a breach of data protection legislation, the person affected may file a complaint with the relevant regulatory authorities. The relevant regulatory authority for matters related to data protection legislation is the Data Protection Officer of the German federal state in which our company headquarters are located. A list of data protection officers and their contact details can be found at the following link: https://www.bfdi.bund.de/DE/Infothek/Anschriften_Links/anschriften_links-node.html.
You are entitled to have data which we process based on your consent or process automatically for the fulfilment of a contract issued to yourself or to a third party in a standard, machine-readable format. Insofar as you require the direct transfer of data to another responsible party, this will only be done to the extent technically feasible.
This site uses SSL or TLS encryption for security reasons and for the protection of the transmission of confidential content, such as the inquiries you send to us as the site operator. An encrypted link is immediately recognisable by the fact that the browser address changes from “http://" to "https://” and a lock symbol appears in the browser line.
If you are required to provide your payment details to us (e.g. account number for direct debit authorisation) following the conclusion of a contract which incurs costs, this data is only required for the payment process.
Payment transactions using standard payment methods (Visa/MasterCard, direct debit) are only carried out via an encrypted SSL or TLS connection. An encrypted link is immediately recognisable by the fact that the browser address changes from “http://" to "https://” and a lock symbol appears in the browser line.
When you communicate your payment details to us in an encrypted form, third parties cannot access your data.
As permitted by law, you have the right to be provided at any time with information free of charge about any of your personal data that is stored as well as its origin, the recipient and the purpose for which it has been processed. You also have the right to have this data corrected, blocked or deleted. If you have any questions about this or other data protection-related issues, you can contact us at any time using the address listed in the legal notice.
We hereby object to the use of the contact details published in the legal notice to send us any advertising or informational materials that have not been expressly solicited. The operators of the websites expressly reserve the right to take legal action in the event of unsolicited advertising information, such as spam emails, being sent.
The majority of cookies we use are “session cookies“ which are automatically deleted at the end of your visit. Other cookies will continue to be stored on your device until you delete them. These cookies enable us to recognise your browser on your next visit.
Cookies that are necessary to carry out digital communication processes or provide specific functions requested by you (e.g. shopping basket) are stored on the basis of Art. 6 Para. 1 lit. f GDPR. The website operator has a legitimate interest to store cookies to ensure their optimum services can be provided free of technical issues. Insofar as other cookies (e.g. cookies for the analysis of your surfing behaviour) are saved, these are treated separately in this data protection policy.
This data will not be merged with data from other sources.
The legal basis for data processing is Art. 6 Para. 1 lit. b GDPR, which permits the processing of data for the fulfilment of a contract or pre-contractual measures.
We will, therefore, process any data you enter onto the contact form only with your consent (Art. 6 Para. 1 lit. a GDPR). You may revoke your consent at any time. An informal email making this request is sufficient. The data processed before we receive your request may still be legally processed.
You can register on this website (shop) with a password-protected customer account in order to use additional functionality on the site. The data submitted for this purpose is only used in order to allow you to use the specific functions or services for which you have registered. The mandatory information requested during registration must be submitted in complete form. Otherwise we will reject your registration.
For important changes to our services, for example, or for technical changes, we shall use the email address provided during registration to keep you up to date.
We shall, therefore, process any data you enter onto the registration form only with your consent (Art. 6 Para. 1 (a) GDPR). You may revoke your consent at any time. An informal email making this request is sufficient. The data processed before we receive your request may still be legally processed.
The data collected during registration is stored by us as long as you remain registered on our website. It is subsequently deleted. Legal storage periods remain unaffected.
In addition to processing your data as part of the purchasing process or service, when you register we also use your data with your permission for the purposes of informing you about your orders, specific products or marketing initiatives and to recommend products and services to you that might be of interest.
With regards to the comment function on this website (for services and products), in addition to your comment, information about the time the comment was created, your email address and, if you do not post anonymously, your chosen user name will be stored.
Our comment function saves the IP addresses of users who post comments. We require this data in order to be able to start criminal proceedings against the perpetrator in the case of rights violations such as slander or propaganda.
The comments and the data associated with them (e.g. IP address) are saved and remain on our website until the comment content is deleted in its entirety or the comments have to be deleted for legal reasons (e.g. defamatory comments).
The storage of comments is on the basis of your consent (Art. 6 Para. 1 lit. a GDPR). You may revoke your consent at any time. An informal email making this request is sufficient. The data processed before we receive your request may still be legally processed.
We collect, process and use personal data only when it is necessary for justification, content design or changes to legal relationships (inventory data). The legal basis for this is Art. 6 Para. 1 lit. b GDPR, which permits the processing of data for the fulfilment of a contract or pre-contractual measures. We only collect, process and use personal data regarding the use of our website (usage data) where it is necessary to permit the user to use or be invoiced for our services.
The customer data collected is deleted after the conclusion of the contract or at the end of the business relationship. Legal storage periods remain unaffected.
We only transfer personal data to third parties when this is necessary to fulfil the contract, for example, to the companies responsible for the delivery of goods or the financial institution responsible for the payment process. Further transfer of data does not take place, or only does so in cases where you have expressly agreed to this transfer. We do not transfer your data without your express permission, for example for advertising purposes.
We only transfer your personal data to third parties when it is necessary in the context of contract processing, for example to the financial institution responsible for payment processing.
Further transfer of data does not take place, or only does so in cases where you have expressly agreed to this transfer. We do not transfer your data without your express permission, for example for advertising purposes.
Our web pages incorporate plugins provided by the social network Facebook, Facebook Inc., 1 Hacker Way, Menlo Park, California 94025, United States. You can recognise the Facebook plugins by the Facebook logo or the “Like” button on our site. You will find a complete list of Facebook plug-ins here: https://developers.facebook.com/docs/plugins/.
When you visit one of our web pages, the plugin will establish a direct connection between your browser and the Facebook server. This tells Facebook that you have visited our site with your IP address. If you click on the Facebook “Like” button whilst you are logged in to your Facebook account, you can link content from our pages to your Facebook profile. As a result, Facebook can associate your visit to our page with your user account. Please note that as the provider of the web pages, we have no knowledge of the data transmitted and the way it is used by Facebook. For information, please consult the Facebook data privacy statement at: https://de-de.facebook.com/policyphp.
Our website uses Google +1 functions. These services are provided by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA.
Collection and disclosure of information: You are able to publish information worldwide using the Google+ button. You and other users receive personalised content from Google and our partners by clicking on the Google+ button. Google saves both the information that you have provided for +1 content and the information that you have viewed about the site by clicking +1. Your +1 may appear with your profile name and your photo in Google services, such as search results or in your Google profile, or elsewhere on websites and online advertisements.
Google will record information about your +1 activities in order to improve Google services for you and others. In order to be able to use the Google+ button, you require a public and globally visible Google profile that contains at least the name selected for the profile. This name will be used in all Google services. In certain instances, this name may also replace another name that you have used to share content via your Google account. The identity of your Google profile may be displayed to users who know your email address or who possess other identifying information in respect of your person.
Our Web pages incorporate functions of the social network Instagram. These functions are provided by Instagram Inc., 1601 Willow Road, Menlo Park, CA 94025, United States.
If you are logged in to your Instagram account, you can link the content of our web pages with your Instagram profile by clicking on the Instagram button. As a result, Instagram can associate your visit to our web pages with your user account. We hereby inform you that, as the provider of the web pages, we have no knowledge of the data transmitted and the way it is used by Instagram.
Our website uses functions of the LinkedIn network. These services are provided by LinkedIn Corporation, 2029 Stierlin Court, Mountain View, CA 94043, USA.
Every time you access one of our web pages that contain LinkedIn functions, a connection to LinkedIn servers will be established. LinkedIn is informed that you have visited our web pages using your IP address. If you click the LinkedIn "Recommend" button whilst being logged on to your LinkedIn account, it is possible for LinkedIn to link your visit to our website with your user account. We wish to point out that, as the provider of the web pages, we have no knowledge of the data transmitted and the way it is used by LinkedIn.
You can find more information about this in the LinkedIn data privacy statement: https://www.linkedin.com/legal/privacy-policy.
Our website uses features provided by the XING network. These functions are provided by XING AG, Dammtorstraße 29–32, 20354 Hamburg, Germany.
Every time you access one of our web pages that contain XING functions, a connection to XING servers is established. As far as we know, your personal data is not stored. In particular, no IP addresses are stored and no evaluation of user activities is carried out.
For further information on data privacy and the XING share button, please refer to the XING data privacy statement: https://www.xing.com/app/share?op=data_protection.
This website uses functions of the web analysis service Google Analytics, These services are provided by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA.
Google Analytics uses “cookies”, which are text files saved on your computer, in order to help analyse how the customer uses the site. The information generated by the cookie concerning your use of this website will normally be transmitted to a Google server in the USA and saved there.
Google Analytics cookies are stored based on Art. Para. 6 1 lit. f GDPR. The website operator has a legitimate interest in analysing user behaviour to optimise both its website and its advertising.
We have activated the IP anonymisation feature on this website. This means that Google abbreviates your IP-address in EU Member States or in other states which are party to the Agreement on the European Economic Area before sending it to the USA. Only in exceptional circumstances will your entire IP address be transmitted to Google in the USA and shortened there. On behalf of the operator of this website, Google will use this information to analyse your use of the website, create reports on website activities and to perform other services for the website operator concerning website and internet usage. The IP address transmitted from your browser to Google Analytics shall not appear in conjunction with any other data held by Google.
You can prevent cookies being saved on your computer by adjusting your browser settings; however, we would like to point out that this may mean that you will not be able to use all the functions of this website. You can also prevent the data generated by cookies about your use of the website (incl. your IP address) from being passed to Google, and the processing of this data by Google, by downloading and installing the browser plugin available at the following link: https://tools.google.com/dlpage/gaoptout?hl=de.
You can prevent Google Analytics from recording your data by clicking on the following link. This then sets an opt-out cookie which prevents your data from being recorded when you visit this website in the future: Disable Google Analytics.
We have signed an agreement with Google on ODP and comply fully with the strict guidelines set by the German Data Protection Authority on using Google Analytics.
This website uses the “demographic features” function of Google Analytics, which allows reports to be prepared on statements regarding age, gender and interests of the persons visiting the website. This data stems from interest-based advertising from Google as well as visitor data collected by third-party providers, and cannot be attributed to any person in particular. You can disable this function at any time in your Google account by simply changing the ads settings or generally prohibiting your data from being stored by Google Analytics such as stated in the menu option “Refusal of data collection”.
Our websites use the functions of Google Analytics Remarketing in conjunction with the cross-device functions of Google Adwords and Google DoubleClick. These services are provided by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA.
This function allows the advertising target groups created with Google Analytics Remarketing to be linked to the cross-device functions of Google Adwords and Google DoubleClick. This means that interest-related, personalised adverts which have been customised for you depending on your earlier usage and surfing behaviour on one device (e.g. mobile phone) can be displayed on another of your devices (e.g. tablet or PC).
If you have given the relevant permission, Google will link your web and App browser history with your Google account for this purpose. This allows the same personalised adverts to be displayed on all devices where you are logged in to your Google account.
To support this function, Google Analytics collects google-authenticated user IDs which are temporarily linked to our Google Analytics data in order to define and create target groups for cross-device advertising.
You can object to cross-device remarketing/targeting at any time by disabling personalised advertising in your Google account here: https://www.google.com/settings/ads/onweb/.
The merging of your collected data in your Google account is only carried out with your permission, which you can grant or revoke at any time (Art. 6 Para. 1 lit. a GDPR). With regards to data collection processes which are not merged in your Google account (e.g. because you do not have a Google account or have denied permission for it to be merged), the collection of data is on the basis of Art. 6 Para. 1 lit. f GDPR) The legitimate interest arises from the fact that the website operator has an interest in the anonymised analysis of website visitors for advertising purposes.
This website uses Google Adwords. Adwords is an online advertising programme by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, United States (“Google”).
We use conversion tracking in the context of Google Adwords. If you click on an advert delivered by Google, a conversion tracking cookie will be stored. Cookies are small text files which the internet browser stores on the user’s computer. After 30 days, these cookies are no longer valid and cannot be used to identify the user. If the user visits specific pages of this website and the cookie has not yet expired, we and Google can recognise that the user has clicked on the advert and been referred to this website.
Each Google Adwords customer receives a unique cookie. The cookies cannot be tracked via the websites of Adwords customers. Information gathered by conversion cookies allows Google to generate conversion statistics for Adwords customers who have chosen to use conversion tracking. Customers find out the total number of users who have clicked on the advert and been referred to a page with a conversion tracking tag. They do not, however, receive any information which allows them to identify the user personally. If you do not want to be included in tracking, you can object to this use of your data by simply disabling the Google conversion tracking cookie via your internet browser settings. This means you will not be included in the conversion tracking statistics.
Conversion cookies are stored based on Art. 6 Para. 1 lit. f GDPR. The website operator has a legitimate interest in analysing user behaviour to optimise both its website and its advertising.
To measure conversions, our website uses Pixel - a visitor promotion tool from Facebook, Facebook Inc., 1601 S. California Ave, Palo Alto, CA 94304, USA (“Facebook”).
The behaviour of site visitors can be tracked when they click on a Facebook advert and are forwarded to the website of the advertiser. This allows advertisers to measure the effectiveness of Facebook adverts for statistical and market research purposes and to optimise future promotional activities.
The data collected is anonymous for us as operators of this website. We cannot draw any conclusions about the identity of the user. The data is saved and processed by Facebook, meaning that it is possible to associate it with the relevant user profile and Facebook can use it for its own advertising purposes in line with the Facebook data use policy. This allows Facebook to display adverts on Facebook pages, as well as outside of Facebook. This use of data cannot be influenced by us as website operators.
You will find more information about protecting your privacy in the Facebook privacy notice here: https://www.facebook.com/about/privacy/.
You can disable the remarketing function “Custom Audiences” in the advertising settings here https://www.facebook.com/ads/preferences/?entry_product=ad_settings_screen. You must be logged in to Facebook to do this.
If you do not have a Facebook account, you can disable Facebook’s use-based advertising on the website of the European Interactive Digital Advertising Alliance: http://www.youronlinechoices.com/de/praferenzmanagement/.
If you wish to subscribe to the newsletter offered on the website, we will need you to provide us with an email address and information that enables us to verify that you are the holder of the email address provided and that you consent to receiving the newsletter. No additional data is collected or is only collected on a voluntary basis. We only use this data to send the requested information and do not pass it on to third parties.
We will, therefore, process any data you enter onto the contact form only with your consent (Art. 6 Para. 1 lit. a GDPR). The consent granted for the storage of data and your email address, as well as for the usage thereof for sending the newsletter, may be withdrawn at any time, e.g. via the “Unsubscribe” link in the newsletter. The data processed before we receive your request may still be legally processed.
The data provided when registering for the newsletter will be used to distribute the newsletter until you cancel your subscription when said data will be deleted. Data we have stored for other purposes (e.g. email addresses for the members area) remains unaffected.
Episerver is a service which organizes and analyses the distribution of newsletters. If you submit data in order to subscribe to a newsletter (e.g. email address), this is saved on the episerver servers in Berlin.
We use episerver to help us analyse our newsletter campaigns. When you open an email sent with episerver, the file in the email (web beacon) connects with the episerver servers in Berlin. This allows us to determine whether a newsletter message has been opened and which links you clicked on. In addition, technical information is also collected (e.g. time of opening, IP address, browser type and operating system). This information cannot be assigned to the newsletter recipient. This data is used solely for analysing newsletter campaigns. The results of this analysis can be used to customise future newsletters for recipients.
If you do not want your usage of the newsletter to be analysed by episerver, you will need to unsubscribe from the newsletter. For this purpose, we provide a link in every newsletter we send. You can also unsubscribe from the newsletter directly on the website.
Data processing is based on your consent (Art. 6 Para.1 lit.a GDPR). You can revoke your consent at any time by unsubscribing from the newsletter. The data processed before we receive your request may still be legally processed.
The data provided when registering for the newsletter will be used to distribute the newsletter until you cancel your subscription when said data shall be deleted from our servers and those of episerver. Data we have stored for other purposes (e.g. email addresses for the members area) remains unaffected.
We have entered into a data processing agreement with episerver, in which we require episerver to protect the data of our customers and not to disclose said data to third parties.
Our website uses YouTube plugins which are operated by Google. These functions are provided by YouTube, LLC, 901 Cherry Ave., San Bruno, CA 94066, USA.
If you visit one of our websites with a YouTube plugin, a link is created to the YouTube servers. The YouTube server is then informed which of our websites you have visited.
If you are also logged on to your YouTube account at the same time, your surfing behaviour will be directly attributed to your personal profile. You can prevent this by logging out of your YouTube account.
We use YouTube in the interests of presenting our website in an attractive manner. This represents a legitimate interest according to Art. 6 Para. 1 lit. f GDPR.
This website uses the map services of Google Maps via an API. These services are provided by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA.
To use the functions of Google Maps, it is necessary to store your IP address. This information is normally transmitted to Google in the USA and stored there. The operator of this website has no influence on this data transfer.
We use Google Maps in the interests of presenting our website in an attractive manner and in order to make the locations listed on our website easy to find. This represents a legitimate interest according to Art. 6 Para. 1 lit. f GDPR.
On our website we offer payment via PayPal, amongst other payment options. The provider of this payment service is PayPal (Europe) S.à.r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter “PayPal”).
When you choose to pay via PayPal, the payment details provided by you are transferred to PayPal.
The transfer of your data to PayPal is on the basis of Art. 6 Para. 1 lit. a GDPR (permission) and Art. 6 Para. 1 lit. b GDPR (processing for the fulfilment of a contract). You have the possibility to withdraw your permission for data processing at any time. Withdrawing your permission does not affect data processing in the past.
The Trusted Shops trustbadge is integrated into this website in order to display our Trusted Shops seal of approval and the ratings collected, as well as the Trusted Shops products for buyers following an order.
With regards to the balance of interests, this serves to protect our legitimate interest in the optimal marketing of our products and services. The trustbadge and the services advertised with it are provided by Trusted Shops GmbH, Subbelrather Str. 15C, 50823 Cologne.
When the trustbadge is requested, the web server automatically stores a server log file, which contains, for example your IP address, the date and time of the request, data volume transferred and the requesting provider (access data), and documents the request. This access data is not analysed and is automatically overwritten seven days after the end of your visit at the latest.
Further personal data is only transferred to Trusted Shops insofar as you choose to use Trusted Shops products after concluding an order or if you have already registered for use. In this case, the contractual agreement between you and Trusted Shops comes into force.

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Justia › US Law › US Case Law › US Supreme Court › Volume 504 › FTC v. Ticor Title Ins. Co.
FEDERAL TRADE COMMISSION v. TICOR TITLE INSURANCE CO. ET AL.
Petitioner Federal Trade Commission filed an administrative complaint charging respondent title insurance companies with horizontal price fixing in setting fees for title searches and examinations in violation of § 5(a)(1) of the Federal Trade Commission Act. In each of the four States at issue-Connecticut, Wisconsin, Arizona, and Montana-uniform rates were established by a rating bureau licensed by the State and authorized to establish joint rates for its members. Rate filings were made to the state insurance office and became effective unless the State rejected them within a specified period. The Administrative Law Judge held, inter alia, that the rates had been fixed in all four States, but that, in Wisconsin and Montana, respondents' anticompetitive activities were entitled to state-action immunity, as contemplated in Parker v. Brown, 317 U. S. 341, and its progeny. Under this doctrine, a state law or regulatory scheme can be the basis for antitrust immunity if the State (1) has articulated a clear and affirmative policy to allow the anticompetitive conduct and (2) provides active supervision of anticompetitive conduct undertaken by private actors. California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 105. The Commission, which conceded that the first part of the test was met, held on review that none of the States had conducted sufficient supervision to warrant immunity. The Court of Appeals reversed, holding that the existence of a state regulatory program, if staffed, funded, and empowered by law, satisfied the active supervision requirement. Thus, it concluded, respondents' conduct in all the States was entitled to stateaction immunity.
1. State-action immunity is not available under the regulatory schemes in Montana and Wisconsin. Pp. 632-640.
regulation, not the economics of price restraint. The purpose of the active supervision inquiry is to determine whether the State has exercised sufficient independent judgment and control so that the details of the rates or prices have been established as a product of deliberate state intervention. Although this immunity doctrine was developed in actions brought under the Sherman Act, the issue whether it applies to Commission action under the Federal Trade Commission Act need not be determined, since the Commission does not assert any superior preemption authority here. Pp. 632-635.
(b) Wisconsin, Montana, and 34 other States correctly contend that a broad interpretation of state-action immunity would not serve their best interests. The doctrine would impede, rather than advance, the States' freedom of action if it required them to act in the shadow of such immunity whenever they entered the realm of economic regulation. Insistence on real compliance with both parts of the Midcal test serves to make clear that the States are responsible for only the price fixing they have sanctioned and undertaken to control. Respondents' contention that such concerns are better addressed by the first part of the Midcal test misapprehends the close relation between Midcal's two elements, which are both directed at ensuring that particular anticompetitive mechanisms operate because of a deliberate and intended state policy. A clear policy statement ensures only that the State did not act through inadvertence, not that the State approved the anticompetitive conduct. Sole reliance on the clear articulation requirement would not allow the States sufficient regulatory flexibility. Pp. 635-637.
ference, Inc. v. United States, 471 U. S. 48, which involved a similar negative option regime, is not to the contrary, since it involved the question whether the first part of the Midcal test was met. This case involves horizontal price fixing under a vague imprimatur in form and agency inaction in fact, and it should be read in light of the gravity of the antitrust offense, the involvement of private actors throughout, and the clear absence of state supervision. Pp. 637-640.
922 F.2d 1122, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, SCALIA, and SOUTER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 640. REHNQUIST, C. J., filed a dissenting opinion, in which O'CONNOR and THOMAS, JJ., joined, post, p. 641. O'CONNOR, J., filed a dissenting opinion, in which THOMAS, J., joined, post, p. 646.
John C. Christie, Jr., argued the cause for respondents.
M. Ringo, Assistant Attorney General, William J. Guste, Jr., Attorney General of Louisiana, and Jesse James Marks and Anne F. Benoit, Assistant Attorneys General, Michael E. Carpenter, Attorney General of Maine, and Stephen L. Wessler, Deputy Attorney General, Scott Harshbarger, Attorney General of Massachusetts, and George K. Weber and Thomas M. Alpert, Assistant Attorneys General, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, Marc Racicot, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Charles T. Putnam, Senior Assistant Attorney General, and Walter L. Maroney, Assistant Attorney General, Robert J. Del Tufo, Attorney General of New Jersey, and Laurel A. Price, Deputy Attorney General, Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and George W Sampson and Richard Schwartz, Assistant Attorneys General, Lacy H. Thornburg, Attorney General of North Carolina, James C. Gulick, Special Deputy Attorney General, and K. D. Sturgis, Assistant Attorney General, Nicholas J. Spaeth, Attorney General of North Dakota, and David W Huey, Assistant Attorney General, Lee Fisher, Attorney General of Ohio, and Marc B. Bandman, Assistant Attorney General, Susan B. Loving, Attorney General of Oklahoma, and Jane F. Wheeler, Assistant Attorney General, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Thomas L. Welch, Chief Deputy Attorney General, and Carl S. Hisiro, Assistant Chief Deputy Attorney General, James E. O'Neil, Attorney General of Rhode Island, and Edmund F. Murray, Jr., Special Assistant Attorney General, Charles W Burson, Attorney General of Tennessee, John Knox Walkup, Solicitor General, and Perry A. Craft, Deputy Attorney General, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Mark Tobey, Assistant Attorney General, R. Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, and Geoffrey A. Yudien, Assistant Attorney General, Mary Sue Terry, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, and Carol A. Smith, Assistant Attorney General, Mario J. Palumbo, Attorney General of West Virginia, and Donald L. Darling, Deputy Attorney General, and Joseph B. Meyer, Attorney General of Wyoming.
companies, alleging horizontal price fixing in their fees for title searches and title examinations. One company settled by consent decree, while five other firms continue to contest the matter. The Commission charged the title companies with violating § 5(a)(1) of the Federal Trade Commission Act, 38 Stat. 719, 15 U. S. C. § 45(a)(1), which prohibits "[u]nfair methods of competition in or affecting commerce." One of the principal defenses the companies assert is state-action immunity from antitrust prosecution, as contemplated in the line of cases beginning with Parker v. Brown, 317 U. S. 341 (1943). The Commission rejected this defense, In re Ticor Title Ins. Co., 112 F. T. C. 344 (1989), and the firms sought review in the United States Court of Appeals for the Third Circuit. Ruling that state-action immunity was available under the state regulatory schemes in question, the Court of Appeals reversed. 922 F.2d 1122 (1991). We granted certiorari. 502 U. S. 806 (1991).
Roderick E. Walston, Chief Assistant Attorney General, and Thomas F. Gede, Special Assistant Attorney General, Gale A. Norton, Attorney General of Colorado, Don Stenberg, Attorney General of Nebraska, and Mark W Barnett, Attorney General of South Dakota; for the American Insurance Association et al. by John E. Nolan, Craig A. Berrington, James H. Bradner, Jr., Theresa L. Sorota, and Patrick J. McNally; for Hartford Fire Insurance Co. et al. by Stephen M. Shapiro, Mark I. Levy, Andrew J. Pincus, and Roy T. Englert, Jr.; and for the National Council on Compensation Insurance by Jerome A. Hochberg and Mark E. Solomons.
Briefs of amici curiae were filed for the American Land Title Association by Philip H. Rudolph and James R. Maher; and for the Pennsylvania Electric Association by Jeffrey H. Howard.
policy, the insurance company or one of its agents performs a title search and examination. The search produces a chronological list of the public documents in the chain of title to the real property. The examination is a critical analysis or interpretation of the condition of title revealed by the documents disclosed through this search.
The title insurance industry earned $1.35 billion in gross revenues in 1982, and respondents accounted for 57 percent of that amount. Four of respondents are the nation's largest title insurance companies: Ticor Title Insurance Co., with 16.5 percent of the market; Chicago Title Insurance Co., with 12.8 percent; Lawyers Title Insurance Co., with 12 percent; and SAFECO Title Insurance Co. (now operating under the name Security Union Title Insurance Co.), with 10.3 percent. Stewart Title Guarantee Co., with 5.4 percent of the market, is the country's eighth largest title insurer, with a strong position in the West and Southwest. App. to Pet. for Cert. 145a.
"'Respondents have agreed on the prices to be charged for title search and examination services or settlement services through rating bureaus in various states. Examples of states in which one or more of the respondents have fixed prices with other respondents or other competitors for all or part of their search and examination services or settlement services are Arizona, Connecticut, Idaho, Louisiana, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Wisconsin and Wyoming.'" 112 F. T. C., at 346.
u. S. 97 (1980); Parker v. Brown, 317 U. S. 341 (1943). App. to Pet. for Cert. 218a. As to one State, Ohio, respondents contended that the rates for title search, examination, and settlement had not been set by a rating bureau.
Louisiana, New Mexico, New York, Oregon, and Wyoming. Upon the recommendation of the ALJ, the Commission did not pursue its complaint with regard to fees in two additional States, Idaho and Ohio. This left six States in which the Commission found antitrust violations, but in two of these States, New Jersey and Pennsylvania, the Commission conceded the issue on which certiorari was sought here, so the regulatory regimes in these two States are not before us. Four States remain in which violations were alleged: Connecticut, Wisconsin, Arizona, and Montana.
The ALJ held that the rates for search and examination services had been fixed in these four States. For reasons we need not pause to examine, the ALJ rejected the McCarranFerguson and Noerr-Pennington defenses. The ALJ then turned his attention to the question of state-action immunity. A summary of the ALJ's extensive findings on this point is necessary for a full understanding of the decisions reached at each level of the proceedings in the case.
efficiencies and costs among individual members. App. to Pet. for Cert. 183a-184a.
In Connecticut the State Insurance Department has the authority to audit the rating bureau and hold hearings regarding rates, but it has not done so. The Connecticut rating bureau filed only two major rate increases, in 1966 and in 1981. The circumstances behind the 1966 rate increase are somewhat obscure. The ALJ found that the Insurance Department asked the rating bureau to submit additional information justifying the increase, and later approved the rate increase although there is no evidence the additional information was provided. In 1981 the Connecticut rating bureau filed for a 20 percent rate increase. The factual background for this rate increase is better developed though the testimony was somewhat inconsistent. A state insurance official testified that he reviewed the rate increase with care and discussed various components of the increase with the rating bureau. The same official testified, however, that he lacked the authority to question certain expense data he considered quite high. Id., at 189a-195a.
In Wisconsin the State Insurance Commissioner is required to examine the rating bureau at regular intervals and authorized to reject rates through a process of hearings. N either has been done. The Wisconsin rating bureau made major rate filings in 1971, 1981, and 1982. The 1971 rate filing was approved in 1971 although supporting justification, which had been requested by the State Insurance Commissioner, was not provided until 1978. The 1981 rate filing requested an 11 percent rate increase. The increase was approved after the office of the Insurance Commissioner checked the supporting data for accuracy. No one in the agency inquired into insurer expenses, though an official testified that substantive scrutiny would not be possible without that inquiry. The 1982 rate increase received but a cursory reading at the office of the Insurance Commissioner. The supporting materials were not checked for accuracy, though in the absence of an objection by the agency, the rate increase went into effect. Id., at 196a-200a.
In Arizona the Insurance Director was required to examine the rating bureau at least once every five years. It was not done. In 1980 the State Insurance Department announced a comprehensive investigation of the rating bureau. It was not conducted. The rating bureau spent most of its time justifying its escrow rates. Following conclusion in 1981 of a federal civil suit challenging the joint fixing of escrow rates, the rating bureau went out of business without having made any major rate filings, though it had proposed minor rate adjustments. Id., at 200a-205a.
In Montana the rating bureau made its only major rate filing in 1983. In connection with it, a representative of the rating bureau met with officials of the State Insurance Department. He was told that the filed rates could go into immediate effect though further profit data would have to be provided. The ALJ found no evidence that the additional data were furnished. Id., at 211a-214a.
To complete the background, the ALJ observed that none of the rating bureaus are now active. The respondents abandoned them between 1981 and 1985 in response to numerous private treble-damages suits, so by the time the Commission filed its formal complaint in 1985, the rating bureaus had been dismantled. Id., at 195a, 200a, 205a, 208a. The ALJ held that the case is not moot, though, because nothing would preclude respondents from resuming the conduct challenged by the Commission. Id., at 246a-247a. See United States v. W T. Grant Co., 345 U. S. 629, 632-633 (1953).
These factual determinations established, the ALJ addressed the two-part test that must be satisfied for stateaction immunity under the antitrust laws, the test we set out in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980). A state law or regulatory scheme cannot be the basis for antitrust immunity unless, first, the State has articulated a clear and affirmative policy to allow the anticompetitive conduct, and second, the State provides active supervision of anticompetitive conduct undertaken by private actors. Id., at 105. The Commission having conceded that the first part of the test was satisfied in the four States still at issue, the immunity question, beginning with the hearings before the ALJ and in all later proceedings, has turned upon the proper interpretation and application of Midcal's active supervision requirement. The ALJ found the active supervision test was met in Arizona and Montana but not in Connecticut or Wisconsin. App. to Pet. for Cert. 248a.
had held that the existence of a state regulatory program, if staffed, funded, and empowered by law, satisfied the requirement of active supervision. Id., at 1071. Under this standard, the Court of Appeals for the Third Circuit ruled that the active state supervision requirement was met in all four States and held that the respondents' conduct was entitled to state-action immunity in each of them. 922 F. 2d, at 1140.
We granted certiorari to consider two questions: First, whether the Third Circuit was correct in its statement of the law and in its application of law to fact, and second, whether the Third Circuit exceeded its authority by departing from the factual findings entered by the ALJ and adopted by the Commission. Before this Court, the parties have confined their briefing on the first of these questions to the regulatory regimes of Wisconsin and Montana, and focused on the regulatory regimes of Connecticut and Arizona in briefing on the second question. We now reverse the Court of Appeals under the first question and remand for further proceedings under the second.
tory programs. Our decision was grounded in principles of federalism. Id., at 350-352.
The principle of freedom of action for the States, adopted to foster and preserve the federal system, explains the later evolution and application of the Parker doctrine in our decisions in Midcal, supra, and Patrick v. Burget, 486 U. S. 94 (1988). In Midcal we invalidated a California statute forbidding licensees in the wine trade to sell below prices set by the producer. There we announced the two-part test applicable to instances where private parties participate in a price-fixing regime. "First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; second, the policy must be actively supervised by the State itself." 445 U. S., at 105 (internal quotation marks omitted). Midcal confirms that while a State may not confer antitrust immunity on private persons by fiat, it may displace competition with active state supervision if the displacement is both intended by the State and implemented in its specific details. Actual state involvement, not deference to private price-fixing arrangements under the general auspices of state law, is the precondition for immunity from federal law. Immunity is conferred out of respect for ongoing regulation by the State, not out of respect for the economics of price restraint. In Midcal we found that the intent to restrain prices was expressed with sufficient precision so that the first part of the test was met, but that the absence of state participation in the mechanics of the price posting was so apparent that the requirement of active supervision had not been met. Ibid.
The rationale was further elaborated in Patrick v. Burget.
"The active supervision requirement stems from the recognition that where a private party is engaging in the anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State .... The requirement is designed to ensure that the state-action doctrine will shelter only the particular anticompetitive acts of private parties that, in the judgment of the State, actually further state regulatory policies. To accomplish this purpose, the active supervision requirement mandates that the State exercise ultimate control over the challenged anticompetitive conduct .... The mere presence of some state involvement or monitoring does not suffice .... The active supervision prong of the Midcal test requires that state officials have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy. Absent such a program of supervision, there is no realistic assurance that a private party's anticompetitive conduct promotes state policy, rather than merely the party's individual interests." 486 U. S., at 100-101 (internal quotation marks and citations omitted).
Because the particular anticompetitive conduct at issue in Patrick had not been supervised by governmental actors, we decided that the actions of the peer review committee were not entitled to state-action immunity. Id., at 106.
simply by agreement among private parties. Much as in causation inquiries, the analysis asks whether the State has played a substantial role in determining the specifics of the economic policy. The question is not how well state regulation works but whether the anticompetitive scheme is the State's own.
Although the point bears but brief mention, we observe that our prior cases considered state-action immunity against actions brought under the Sherman Act, and this case arises under the Federal Trade Commission Act. The Commission has argued at other times that state-action immunity does not apply to Commission action under § 5 of the Federal Trade Commission Act, 15 U. S. C. § 45. See U. S. Bureau of Consumer Protection, Staff Report to the Federal Trade Commission on Prescription Drug Price Disclosures, Chs. VI(B) and (C) (1975); see also Note, The State Action Exemption and Antitrust Enforcement under the Federal Trade Commission Act, 89 Harv. L. Rev. 715 (1976). A leading treatise has expressed its skepticism of this view. See 1 P. Areeda & D. Turner, Antitrust Law' 218 (1978). We need not determine whether the antitrust statutes can be distinguished on this basis, because the Commission does not assert any superior pre-emption authority in the instant matter. We apply our prior cases to the one before us.
Respondents contend that principles of federalism justify a broad interpretation of state-action immunity, but there is a powerful refutation of their viewpoint in the briefs that were filed in this case. The State of Wisconsin, joined by Montana and 34 other States, has filed a brief as amici curiae on the precise point. These States deny that respondents' broad immunity rule would serve the States' best interests. We are in agreement with the amici submission.
late their economies in many ways not inconsistent with the antitrust laws. For example, Oregon may provide for peer review by its physicians without approving anticompetitive conduct by them. See Patrick, 486 U. S., at 105. Or Michigan may regulate its public utilities without authorizing monopolization in the market for electric light bulbs. See Cantor v. Detroit Edison Co., 428 U. S. 579, 596 (1976). So we have held that state-action immunity is disfavored, much as are repeals by implication. Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 398-399 (1978). By adhering in most cases to fundamental and accepted assumptions about the benefits of competition within the framework of the antitrust laws, we increase the States' regulatory flexibility.
States must accept political responsibility for actions they intend to undertake. It is quite a different matter, however, for federal law to compel a result that the States do not intend but for which they are held to account. Federalism serves to assign political responsibility, not to obscure it. N either federalism nor political responsibility is well served by a rule that essential national policies are displaced by state regulations intended to achieve more limited ends. For States which do choose to displace the free market with regulation, our insistence on real compliance with both parts of the Midcal test will serve to make clear that the State is responsible for the price fixing it has sanctioned and undertaken to control.
vertence; it cannot alone ensure, as required by our precedents, that particular anticompetitive conduct has been approved by the State. It seems plain, moreover, in light of the amici curiae brief to which we have referred, that sole reliance on the requirement of clear articulation will not allow the regulatory flexibility that these States deem necessary. For States whose object it is to benefit their citizens through regulation, a broad doctrine of state-action immunity may serve as nothing more than an attractive nuisance in the economic sphere. To oppose these pressures, sole reliance on the requirement of clear articulation could become a rather meaningless formal constraint.
"'Where ... the state's program is in place, is staffed and funded, grants to the state officials ample power and the duty to regulate pursuant to declared standards of state policy, is enforceable in the state's courts, and demonstrates some basic level of activity directed towards seeing that the private actors carry out the state's policy and not simply their own policy, more need not be established.'" 922 F. 2d, at 1136, quoting New England Motor Rate Bureau, Inc. v. FTC, 908 F. 2d, at 1071.
Based on this standard, the Third Circuit ruled that the active supervision requirement was met in all four States, and held that the respondents' conduct was entitled to stateaction immunity from antitrust liability. 922 F. 2d, at 1140.
point of the active state supervision inquiry, but the analysis cannot end there. Where prices or rates are set as an initial matter by private parties, subject only to a veto if the State chooses to exercise it, the party claiming the immunity must show that state officials have undertaken the necessary steps to determine the specifics of the price-fixing or ratesetting scheme. The mere potential for state supervision is not an adequate substitute for a decision by the State. Under these standards, we must conclude that there was no active supervision in either Wisconsin or Montana.
participation, state judicial review was likewise limited. See Patrick, 486 U. S., at 103-105.
Our decision in Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48 (1985), though it too involved a negative option regime, is not to the contrary. The question there was whether the first part of the Midcal test was met, the Government's contention being that a pricing policy is not an articulated one unless the practice is compelled. We rejected that assertion and undertook no real examination of the active supervision aspect of the case, for the Government conceded that the second part of the test had been met. Id., at 62, 66. The concession was against the background of a District Court determination that, although submitted rates could go into effect without further state activity, the State had ordered and held ratemaking hearings on a consistent basis, using the industry submissions as the beginning point. See United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471, 476477 (ND Ga. 1979). In the case before us, of course, the Commission concedes the first part of the Midcal requirement and litigates the second; and there is no finding of substantial state participation in the ratesetting scheme.
not have before us a case in which governmental actors made unilateral decisions without participation by private actors. Cf. Fisher v. Berkeley, 475 U. S. 260 (1986) (private actors not liable without private action). And we do not here call into question a regulatory regime in which sampling techniques or a specified rate of return allow state regulators to provide comprehensive supervision without complete control, or in which there was an infrequent lapse of state supervision. Cf. 324 Liquor Corp. v. Duffy, 479 U. S. 335, 344, n. 6 (1987) (a statute specifying the margin between wholesale and retail prices may satisfy the active supervision requirement). In the circumstances of this case, however, we conclude that the acts of respondents in the States of Montana and Wisconsin are not immune from antitrust liability.
In granting certiorari we undertook to review the further contention by the Commission that the Court of Appeals was incorrect in disregarding the Commission's findings as to the extent of state supervision. The parties have focused their briefing on this question on the regulatory schemes of Connecticut and Arizona. We think the Court of Appeals should have the opportunity to reexamine its determinations with respect to these latter two States in light of the views we have expressed.
donment of some state programs because private individuals will not take the chance of participating in them. That is true, moreover, not just in the "negative option" context, but even in a context such as that involved in Patrick v. Burget, 486 U. S. 94 (1988): Private physicians invited to participate in a state-supervised hospital peer review system may not know until after their participation has occurred (and indeed until after their trial has been completed) whether the State's supervision will be "active" enough.
I am willing to accept these consequences because I see no alternative within the constraints of our "active supervision" doctrine, which has not been challenged here; and because I am skeptical about the Parker v. Brown, 317 U. S. 341 (1943), exemption for state-programmed private collusion in the first place.
The Court holds today that to satisfy the "active supervision" requirement of state-action immunity from antitrust liability, private parties acting pursuant to a regulatory scheme enacted by a state legislature must prove that "the State has played a substantial role in determining the specifics of the economic policy." Ante, at 635. Because this standard is neither supported by our prior precedent nor sound as a matter of policy, I dissent.
at 351.1 "The Parker decision was premised on the assumption that Congress, in enacting the Sherman Act, did not intend to compromise the States' ability to regulate their domestic commerce." Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48, 56 (1985) (footnote omitted).
We developed our present analysis for state-action immunity for private actors in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980). We held in Midcal that our prior precedent had granted stateaction immunity from antitrust liability to conduct by private actors where a program was "clearly articulated and affirmatively expressed as state policy [and] the policy [was] actively supervised by the State itself." Id., at 105 (internal quotation marks and citation omitted). In Midcal, we found the active supervision requirement was not met because under the California statute at issue, which required liquor retailers to charge a certain percentage above a price "posted" by area wholesalers, "[t]he State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers." Id., at 100. We noted that the state-action defense does not allow the States to authorize what is nothing more than private price fixing. Id., at 105.
1 The Court states that "[cJontinued enforcement of the national antitrust policy grants the States more freedom, not less, in deciding whether to subject discrete parts of the economy to additional regulations and controls," ante, at 632. However, in Parker, we held that the Sherman Act simply does not apply to conduct regulated by the State. The enforcement of the national antitrust policy, as embodied in the antitrust laws, may grant individuals more freedom to compete in our free market system, but it does not implicate the freedom of the States in deciding whether to regulate.
by the private actors facing antitrust liability.2 Our most recent formulation of the "active supervision" requirement was announced in Patrick v. Burget, 486 U. S. 94 (1988), where we concluded that to satisfy the "active supervision" requirement, "state officials [must] have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy." Id., at 101. Until today, therefore, we have never had occasion to determine whether a state regulatory program which gave state officials authority-"power"-to review and regulate prices or conduct, might still fail to meet the requirement for active state supervision because the State's regulation was not sufficiently detailed or rigorous.
"'Where, as here, the state's program is in place, is staffed and funded, grants to the state officials ample power and the duty to regulate pursuant to declared standards of state policy, is enforceable in the state's courts, and demonstrates some basic level of activity directed towards seeing that the private actors carry out the state's policy and not simply their own policy, more need not be established.''' 922 F.2d 1122, 1136 (CA3 1991), quoting New England Motor Rate Bureau, Inc. v. FTC, 908 F.2d 1064, 1071 (CA1 1990).
2 In 324 Liquor Corp. v. Duffy, 479 U. S. 335 (1987), we held that a New York statute failed to shelter private actors from antitrust liability because the state legislation required retailers to charge 112% of the price "posted" by wholesalers. The New York statute, like the California statute at issue in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), gave no power to the state agency to review or establish the reasonableness of the price schedules "posted" by the wholesalers. 324 Liquor, supra, at 345.
much more closely attuned to our "have and exercise power" formulation in Patrick v. Burget than is the rule adopted by the Court today. The Court simply does not say just how active a State's regulators must be before the "active supervision" requirement will be satisfied. The only guidance it gives is that the inquiry should be one akin to causation in a negligence case; does the State play "a substantial role in determining the specifics of the economic policy." Ante, at 635. Any other formulation, we are told, will remove the active supervision requirement altogether as a practical matter.
I do not believe this to be the case.3 In the States at issue here, the particular conduct was approved by a state agency. The agency manifested this approval by raising no objection to a required rate filing by the entity subject to regulation. This is quite consistent with our statement that the active supervision requirement serves mainly an "evidentiary function" as "one way of ensuring that the actor is engaging in the challenged conduct pursuant to state policy." Hallie v. Eau Claire, 471 U. S. 34, 46 (1985).
The Court insists that its newly required "active supervision" will "increase the States' regulatory flexibility." Ante, at 636. But if private actors who participate, through a joint rate filing, in a State's "negative option" regulatory scheme may be liable for treble damages if they cannot prove that the State approved the specifics of a filing, the Court makes it highly unlikely that private actors will choose to participate in such a joint filing. This in turn lessens the States' regulatory flexibility, because as we have noted before, joint rate filings can improve the regulatory process by ensuring that the state agency has fewer filings to consider, allowing more resources to be expended on each filing.
3 The state regulatory programs in Midcal, supra, Patrick v. Burget, 486 U. S. 94 (1988), and 324 Liquor, supra, would all fail to provide immunity for lack of active supervision under the test adopted by the Court of Appeals.
The Court rejects the test adopted by the Court of Appeals, stating that it cannot be the end of the inquiry. Instead, the party seeking immunity must "show that state officials have undertaken the necessary steps to determine the specifics of the price-fixing or rate setting scheme." Ante, at 638.5 Such an inquiry necessarily puts the federal court in the position of determining the efficacy of a particular State's regulatory scheme, in order to determine whether the State has met the "requisite level of active supervision." Ante, at 637. The Court maintains that the proper stateaction inquiry does not determine whether a State has met some "normative standard" in its regulatory practices. Ante, at 634. But the Court's focus on the actions taken by state regulators, i. e., the way the State regulates, necessarily requires a judgment as to whether the State is sufficiently active-surely a normative judgment.
4 In neither of the examples cited by the majority as instances of state regulation not intended to authorize anticompetitive conduct would application of a less detailed active supervision test change the result. In Patrick v. Burget, supra, we concluded there was no immunity because the State did not have the authority to review the anticompetitive action undertaken by the peer review committee; in Cantor v. Detroit Edison Co., 428 U. S. 579 (1976), it is unlikely that the clear articulation requirement under our current jurisprudence would be met with respect to the market for light bulbs.
5 It is not clear, from the Court's formulation, whether this is a separate test applicable only to negative option regulatory schemes, or whether it applies more generally to issues of immunity under the state-action doctrine.
The Court of Appeals found-properly, in my view-that while the States at issue here did not regulate respondents' rates with the vigor petitioner would have liked, the States' supervision of respondents' conduct was active enough so as to provide for immunity from antitrust liability. The Court of Appeals, having concluded that the Federal Trade Commission applied an incorrect legal standard, reviewed the facts found by the Commission in light of the correct standard and reached a different conclusion. This does not constitute a rejection of the Commission's factual findings.
Notwithstanding its assertions to the contrary, the Court has diminished the States' regulatory flexibility by creating an impossible situation for those subject to state regulation. Even when a State has a "clearly articulated policy" authorizing anticompetitive behavior-which the Federal Trade Commission concedes was the case here-and even when the State establishes a system to supervise the implementation of that policy, the majority holds that a federal court may later find that the State's supervision was not sufficiently "substantial" in its "specifics" to insulate the anticompetitive behavior from antitrust liability. Ante, at 635. Given the threat of treble damages, regulated entities that have the option of heeding the State's anticompetitive policy would be foolhardy to do so; those that are compelled to comply are less fortunate. The practical effect of today's decision will likely be to eliminate so-called "negative option" regulation from the universe of schemes available to a State that seeks to regulate without exposing certain conduct to federal antitrust liability.
VISIOn was not realized in fact." Ante, at 638. Such an after-the-fact evaluation of a State's exercise of its supervisory powers is extremely unfair to regulated parties. Liability under the antitrust laws should not turn on how enthusiastically a state official carried out his or her statutory duties. The regulated entity has no control over the regulator, and very likely will have no idea as to the degree of scrutiny that its filings may receive. Thus, a party could engage in exactly the same conduct in two States, each of which had exactly the same policy of allowing anticompetitive behavior and exactly the same regulatory structure, and discover afterward that its actions in one State were immune from antitrust prosecution, but that its actions in the other resulted in treble-damages liability.
Moreover, even if a regulated entity could assure itself that the State will undertake to actively supervise its rate filings, the majority does not offer any guidance as to what level of supervision will suffice. It declares only that the State must "pla[y] a substantial role in determining the specifics of the economic policy." Ante, at 635. That standard is not only ambiguous, but also runs the risk of being counterproductive. The more reasonable a filed rate, the less likely that a State will have to play any role other than simply reviewing the rate for compliance with statutory criteria. Such a vague and retrospective standard, combined with the threat of treble damages if that standard is not satisfied, makes "negative option" regulation an unattractive option for both States and the parties they regulate.
For these reasons, as well as those given by THE CHIEF JUSTICE, I dissent.
Ticor Title Insurance Co. et al.


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V.A.V. Consultants EOOD (V.A.V) is duly registered as Personal data controller with identification number 16739 in the List of personal data controllers, maintained by the Commission for personal data protection (CPDP) of Republic of Bulgaria. Information regarding maintained by V.A.V. registers (including their name, categories of persons for whom data is collected, level of protection, etc.) is public and accessible on the CPDP's website.
This Policy constitutes summarized information regarding the storage, usage, and security of User's personal data that has become known through the latter's visit to V.A.V. `s Website and the use of its functionalities, as well as the use of the respective services of V.A.V.
V. A. V. respects the rights of all Users of privacy and protection of their personal data and undertakes not to use provided data without their consent, except in the cases exhaustively listed in the current Policy, and in Personal Data Protection Act (PDPA). As a controller of personal data V. A. V. collects, processes, stores and transmits User's personal data in the manner described in this Policy. Collected by V.A.V. personal data may include names, birthdates, addresses, emails, telephones, passport data, ID card details, profiles on other websites, etc., and the list given is non-exhaustive and has exemplary nature.
Users should bear in mind that V.A.V. under any circumstances does not require, collect, process, store or transmit information containing personal data about them which (i) reveals racial or ethnic origin; (ii) reveals political, religious or philosophical beliefs, membership in political parties or organizations, associations with religious, philosophical, political or trade union purposes; or (iii) refer to health, sexual life or to human genome.
Users should not disclose and publish such information when using the Website or services of V.A.V., and a possible disclosure by Users of such information could not bind the responsibility of V.A.V. in any way.
Users' personal data are collected and processed by V.A.V. using the functionalities of the Website.
Duly collected and processed by V.A.V. User's personal data may be used for any of the following purposes: User identification; provision of information for the offered by V.A.V. services; information campaigns; improving certain functionalities of the Website; with statistical objective and analysis; (direct) marketing and behavioral advertising; sending unsolicited commercial messages, etc.
The above purposes of use of personal data are listed non-exhaustively and V.A.V. has the right to change them unilaterally and at any time, respecting the legal rules and requirements.
• in other cases prescribed by the law, current Policy and V.A.V.s` Website Terms and Conditions, which refer to it.
Users have the right to receive from V. A. V. a complete, comprehensive and up-to-date information on the collection, processing, storage and transmission of their personal data and data about persons, which they constitute, in connection with the activities of V. A. V. V.A.V. provides the requested information according to the procedure, the deadlines set and in compliance with the provisions of PDPA.
Users whose personal data are collected, processed, stored and transmitted have the right at any time to object before V.A.V. against the above actions with their personal data (and to request their deletion, correction or blocking), provided that the respective actions do not meet the requirements of the PDPA, as well as to request V.A.V. to notify third parties to whom the relevant personal data have been disclosed about the correction or deletion of specific personal data, except where such notification is impossible or inadequate.
Users should be advised and agree that, upon revocation of their consent or refusal to provide information representing personal data, V.A.V. has the right to restrict access to its Website, respectively to refuse to the particular User access to any or all offered by V.A.V. services.
User to whom processed personal data refer has the right to object before V.A.V. against the processing of his/her personal data for direct marketing purposes, to be informed before his/her personal data are disclosed for the first time to third parties, or used on his/her behalf for the purpose of direct marketing, by objecting against such disclosure and use by sending an email to vav@vavconsultants.com.
By accepting this Policy, the User agrees that V.A.V. has performed the initial notification of the User and has the right to disclose his or her personal data to third parties for direct marketing purposes.
V.A.V., as a personal data administrator, places the secure storage and personal data protection as one of its main priorities.
Personal data and information provided by Users are protected by law and V.A.V. shall exercise due diligence, using appropriate technical, administrative and operational standards to prevent unauthorized access to or misuse with stored personal data.
V.A.V. declares its intent to strictly apply all rules and measures for the preservation and protection of personal data in compliance with the requirements of the PDPA, applicable regulations and international standards for information security. V.A.V. stores the personal data collected in the territory of the Republic of Bulgaria.
All specific concepts (headings) used in this Policy are identical to the definitions given in Website Terms and Conditions for http://www.vavconsultants.com/.
This Policy is an integral part of Website Terms and Conditions for http://www.vavconsultants.com/, which refer to it.

matches: V. V. V. V. V. V. V. V.


1.	Mittal Steel formally launched a tender offer for Arcelor on May 19, 2006, and on June 25, 2006 the Arcelor board recommended Mittal's offer to Arcelor's shareholders. The acceptance period for Mittal's tender offer closed on July 13, 2006, and Mittal Steel can take ownership of the shares beginning on August 1, 2006.
2.	Mittal Steel is an integrated steelmaker that manufactures, among other products, finely rolled tin or chrome coated steel sheets known as "Tin Mill Products." Tin Mill Products are used in manufacturing steel cans for packaging a wide range of food products such as soup, fruits, and vegetables, and non-food products such as paints, aerosols, and shaving cream. Mittal Steel is the second largest supplier of Tin Mill Products to the portion of the United States east of the Rocky Mountains (the "Eastern United States"), accounting for about 31 percent of Tin Mill Products tonnage sold in 2005.
3.	Arcelor accounted for about two percent of Tin Mill Products tonnage sold in the Eastern United States in 2005. Arcelor acquired its subsidiary Dofasco Inc. ("Dofasco") in February 2006. In 2005 Dofasco accounted for an additional four percent of the Tin Mill Products tonnage sold in 2005 in the Eastern United States.
4.	Mittal Steel's proposed acquisition of Arcelor would eliminate Arcelor, including its subsidiary Dofasco, as an independent competitor in the sale of Tin Mill Products in the Eastern United States, further consolidating an already highly concentrated market. The largest supplier of Tin Mill Products sold in the Eastern United States, another integrated steelmaker, accounted for over 44 percent of the tons sold in 2005. If this merger were not enjoined, the two largest suppliers of Tin Mill Products would account for over 81 percent of 2005 sales in the Eastern United States.
5.	The acquisition would remove current constraints on coordination and increase the incentives of the two largest firms to coordinate their behavior. The acquisition would thus substantially increase the likelihood of coordination and would likely lead to higher prices, lower quality, less innovation, and less favorable delivery terms in the Tin Mill Products market in the Eastern United States.
6.	Accordingly, the acquisition would substantially lessen competition in Tin Mill Products in the Eastern United States, in violation of Section 7 of the Clayton Act.
7.	Plaintiff United States brings this action against defendant Mittal Steel under Section 15 of the Clayton Act, as amended, 15 U.S.C. § 25, to prevent and restrain the violation by defendant of Section 7 of the Clayton Act, 15 U.S.C. § 18.
8.	Defendant manufactures and sells Tin Mill Products in the flow of interstate commerce. Defendant's activities in developing, manufacturing and selling Tin Mill Products substantially affect interstate commerce. This Court has subject matter jurisdiction over this action and the defendant pursuant to Section 12 of the Clayton Act, 15 U.S.C. § 22, and 28 U.S.C. §§ 1331, 1337(a), and 1345.
9.	Venue is proper in this District pursuant to 28 U.S.C. § 1391(d). Furthermore, defendant has consented to venue and personal jurisdiction in this judicial district.
10.	Defendant Mittal Steel is a Netherlands corporation with its corporate headquarters and principal place of business in Rotterdam, The Netherlands, and operations in sixteen countries on four continents. Mittal Steel produces both flat and long steel products for all of the major steel consuming sectors, including automotive, appliance, machinery, and construction. Mittal Steel's total worldwide revenues exceeded $28 billion in 2005, and its total annual steel production exceeded 55 million tons. Mittal Steel produces Tin Mill Products in Sparrows Point, Maryland and Weirton, West Virginia. In 2005, Mittal Steel sold over 800,000 tons of Tin Mill Products in the Eastern United States.
11.	Arcelor is a Luxembourg corporation with its corporate headquarters and principal place of business in the City of Luxembourg. Arcelor, with operations primarily in Europe and Brazil, produces flat and long products for the automotive, appliance, packaging, and general industries. In 2005, Arcelor had approximately $41.5 billion in total worldwide revenues and steel production of 46 million tons.
12.	In February 2006 Arcelor acquired Dofasco, a wholly-owned Canadian subsidiary with its corporate headquarters and principal place of business in Hamilton, Ontario, Canada. Dofasco shipped 4.8 million tons of steel and had $3.9 billion in revenues in 2005. Arcelor, which shipped Tin Mill Products to the Eastern United States primarily from its European facilities, and Dofasco, which shipped Tin Mill Products to the Eastern United States from its Canadian facility, sold a combined 170,615 tons of Tin Mill Products in the Eastern United States in 2005.
13.	On January 27, 2006, Mittal Steel announced its intention to launch a hostile tender offer to acquire Arcelor for approximately $23 billion in cash and securities. Mittal Steel simultaneously announced an agreement to sell Dofasco for approximately $5 billion to a German steelmaker, ThyssenKrupp A.G. ("ThyssenKrupp"), if Mittal Steel acquired Arcelor. Arcelor initially resisted the hostile takeover. One of the steps Arcelor's Board of Directors took to resist the takeover was to transfer legal title to the shares of Dofasco to an independent Dutch foundation known as a "stichting."
14.	Mittal Steel subsequently increased its tender offer to approximately $33 billion in cash and securities and formally launched its tender offer on May 19, 2006. After Mittal Steel agreed to improve the financial, corporate governance, and other terms of its offer for Arcelor, the Arcelor Board agreed on June 25, 2006 to recommend Mittal's offer to Arcelor's shareholders. The acceptance period for Mittal's initial tender offer, during which 92.6 percent of Arcelor's shares were tendered, closed on July 13, 2006. Mittal Steel can take ownership of the shares beginning on August 1, 2006.
15.	Tin Mill Products are finely rolled steel sheets, usually coated with a thin protective layer of tin or chrome. Tin Mill Products are manufactured using a sequence of processing steps in which steel is rolled into successively thinner sheets, then hardened, and finally coated with either tin or chrome.
16.	Tin Mill Products are comprised of three types of steel: black plate, electrolytic tin plate ("ETP"), and tin free steel ("TFS"). Black plate is a light-gauge cold-rolled bare steel sheet that serves as the substrate for production of both ETP and TFS and can be used bare for some applications, such as pails or larger containers. Black plate is coated with tin to produce ETP and with chrome to produce TFS. ETP and TFS are both used for packaging, although each provides different advantages and disadvantages (including, inter alia, organic coating acceptance, strength, surface finish and formability) that are considered by purchasers in making their purchase decisions.
17.	The majority of Tin Mill Products shipments are used to produce sanitary cans, often referred to as food cans. Other uses include aerosol cans, general line cans, pails, larger containers, metal buildings, and oil and fuel filter sheets.
18.	For most Tin Mill Products purchasers, including downstream food can customers, there are no close substitutes for Tin Mill Products. Packaging alternatives, such as plastic containers, are generally not viewed by can customers as replacements for products normally packaged in cans because of cost differences and the performance advantages associated with cans. Some of the advantages of steel cans compared to alternative packaging include their longer shelf life and greater durability, familiarity, and security. Alternative packaging generally costs at least as much as a steel can and sometimes costs as much as eight times as much as a can, and significant additional capital investments are necessary to incorporate alternative packaging materials into a customer's packaging process.
19.	A small but significant increase in the price of Tin Mill Products would not cause can manufacturers or their downstream customers to substitute non-Tin Mill Products containers, or otherwise to reduce their purchases of Tin Mill Products, in sufficient quantities so as to make such a price increase unprofitable. The use of alternative packaging containers is driven primarily by capital equipment investment considerations and by marketing factors such as consumer convenience, rather than by small but significant changes in the prices of Tin Mill Products. For example, can customers often use alternative packaging in order to extend an existing product line, such as using alternative materials for portable microwavable containers for soup, while continuing to package the bulk of soup products in steel cans.
20.	Accordingly, the development, manufacture, and sale of Tin Mill Products is a line of commerce and a relevant product market within the meaning of Section 7 of the Clayton Act.
21.	The Eastern United States is a geographically distinct market for the sale of Tin Mill Products. The only Tin Mill Products manufacturer in the United States west of the Rocky Mountains (the "Western United States") is located in California, and it does not have substantial sales in the Eastern United States due to its distance from can manufacturers in that part of the country, which tend to be located in proximity to agricultural regions. That California Tin Mill Products manufacturer, half owned by one of the two largest Tin Mill Products producers in the Eastern United States, accounts for over 84 percent of the Tin Mill Products sold in the Western United States but ships only small quantities to the Eastern United States. Similarly, Tin Mill Products producers in the Eastern United States generally do not sell significant quantities in the Western United States because their freight costs are higher than those of the single manufacturer located in the Western United States.
22.	A small but significant increase in the price of Tin Mill Products would not cause Tin Mill Products customers in the Eastern United States to substitute purchases from outside of the Eastern United States in sufficient quantities so as to make such a price increase unprofitable.
23.	Accordingly, the Eastern United States is a relevant geographic market within the meaning of Section 7 of the Clayton Act.
24.	Currently, Mittal Steel and its primary competitor account for over 75 percent of Tin Mill Products sales in the Eastern United States. Were Mittal Steel to acquire Arcelor, the largest two firms would account for over 81 percent of such sales. In 2005, Mittal Steel, Arcelor, Dofasco, and one other firm sold more than 2.1 million tons of Tin Mill Products in the Eastern United States.
25.	The market for Tin Mill Products in the Eastern United States would thus become substantially more concentrated if Mittal Steel were to acquire Arcelor and its Dofasco subsidiary. Using a measure of market concentration called the Herfindahl-Hirschman Index ("HHI") (defined and explained in Appendix A), the proposed transaction will increase the HHI in the market for Tin Mill Products in the Eastern United States by approximately 412 points to a post-acquisition level of approximately 3,522, well in excess of levels that raise significant antitrust concerns.
26.	Purchasers of Tin Mill Products in the Eastern United States have benefitted from competition between Mittal Steel and Arcelor through lower prices, higher quality, more innovation, and better delivery terms for Tin Mill Products. Arcelor and its subsidiary Dofasco are known for high quality and innovation, which forces Mittal Steel and other domestic producers to compete on these aspects as well. By acquiring Arcelor, Mittal Steel would eliminate that competition.
27.	Mittal Steel's elimination of Arcelor as an independent competitor in the manufacture and sale of Tin Mill Products within the Eastern United States is likely to facilitate anticompetitive coordination among the two major Tin Mill Products manufacturers by making such coordination more profitable and harder to defeat. If the two largest Tin Mill Products firms in the Eastern United States were to seek to raise prices or reduce output today, purchasers of Tin Mill Products could purchase Tin Mill Products from Arcelor and its subsidiary Dofasco. Arcelor has substantial excess and divertible capacity in Europe, and Arcelor's Dofasco subsidiary has significant divertible capacity in Canada. Were Arcelor and Dofasco no longer available as independent suppliers, the remaining domestic and foreign fringe producers would likely not have sufficient capacity and/or incentives to increase production enough to defeat an anticompetitive price increase or output reduction by the two largest firms. In particular, the only other incumbent producer located in the Eastern United States does not have the ability to manufacture cold-rolled substrate, and its ability to obtain the additional substrate needed to increase its output is constrained.
28.	De novo entry into the development, manufacture and sale of Tin Mill Products is difficult, time-consuming, and costly, and such entry would not be timely, likely, or sufficient to defeat coordination by the two largest Tin Mill Products firms in the Eastern United States post-merger. To produce Tin Mill Products, a firm needs a reliable source of cold-rolled substrate and a Tin Mill Products finishing facility. A facility to finish cold-rolled substrate into Tin Mill Products would likely cost in the range of $60 to $100 million and take approximately two years to design and build. In addition, entry by a firm that lacks the ability to manufacture cold-rolled substrate or to increase its output of cold-rolled substrate would be more risky as it may not gain access to sufficient substrate to compete effectively. The cost of entry is largely "sunk," i.e., it cannot be recovered or converted to other uses, raising the risk to entry, and there is a very high risk that a new entrant may not receive any profits from its entry.
29.	Significant new foreign entry or expansion of shipments to the Eastern United States by existing foreign producers is unlikely due to longer delivery lead times occasioned by the need for oceangoing transportation, additional shipping costs, trade barriers, the possibility of future import restrictions, and the reluctance of foreign Tin Mill Products manufacturers to abandon existing markets elsewhere in order to enter or expand in the Eastern United States. Overseas shipping increases the time between order and delivery by up to four months, which is unacceptable for most customers in the Eastern United States because their demand requirements fluctuate with hard-to-predict fruit and vegetable harvests. Capacity constraints also limit certain foreign producers from expanding their sales into the Eastern United States.
30.	Therefore, entry or expansion by any other firm into the Eastern United States Tin Mill Products market would not be timely, likely, or sufficient to deter post-acquisition coordination.
31.	The effect of the proposed acquisition of Arcelor by Mittal Steel would be to substantially lessen competition in interstate trade and commerce, in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18.
the prices for Tin Mill Products will likely increase, the quality of Tin Mill Products will likely decline, innovation relating to Tin Mill Products will likely decline, and the delivery terms currently offered in the Tin Mill Products market will likely become less favorable to customers.
plaintiff receive such other and further relief as the case requires and the Court deems just and proper.
Markets in which the HHI is between 1000 and 1800 points are considered to be moderately concentrated and those in which the HHI is in excess of 1800 points are considered to be highly concentrated. Transactions that increase the HHI by more than 100 points in highly concentrated markets presumptively raise antitrust concerns under the Horizontal Merger Guidelines issued by the U.S. Department of Justice and the Federal Trade Commission. See Horizontal Merger Guidelines § 1.51.