Wisconsin Law Setting Minimum Fuel Price Didn't Violate Antitrust Laws, Court Holds

Federal case law summary: Antitrust.

Flying J, Inc., v. VanHollen. Antitrust, minimum gas prices.

Wisconsin Unfair Sales Act mandates minimum markups of motor vehicle fuel. Plaintiff supplier of fuel asserted that it could sell fuel for less than the statutory minimum and still make a profit, and sought injunction, alleging that the statute was preempted by the Sherman Act. The District Court agreed, and issued a permanent injunction.

The Court of Appeals first noted that a state law is preempted only if it mandates or or authorizes conduct that necessarily constitutes a violation of the antitrust laws, or if it places irresistible pressure on private parties to violate the antitrust laws.

Plaintiff argued that in this case, the state law created a horizontal price fixing scheme. The Court of Appeals disagreed. Since the statute mandated a price using "relatively simple mathematical formulas", the scheme was one of unilateral government action, rather than concerted action by competitors. While the statute did contain a provision that allowed sellers to match a competitor's price, it neither requires nor authorizes competitors to act in a concerted manner. The Court of Appeals remanded the case with instructions to dissolve the injunction.

No. 09 1883, 578 F.3d 569 (7th Cir. Sept. 3, 2010).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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