State of New Mexico, on Behalf of Itself and All Other Public Bodies in the State of New Mexico Similarly Situated v. American Petrofina, Inc.

In this ease we must decide whether a state is liable for alleged violations of sections 1 and 2 of the Sherman Act. We hold that it is not and affirm the district court’s order dismissing the Shell Oil Company’s counterclaim against the State of New Mexico.

New Mexico, on behalf of itself and all other public bodies in New Mexico similarly situated, sued Shell and five other asphalt suppliers for alleged antitrust violations. Shell counterclaimed, alleging that New Mexico and some of its political subdivisions conspired as consumers of asphalt to fix prices and eliminate competition among themselves, in violation of sections 1 and 2 of the Sherman Act [ 15 U.S.C. §§ 1 , 2], The district court dismissed Shell’s counterclaim, holding that the Sherman Act is not applicable to the conduct of a state. That court certified the case for interlocutory appeal under 28 U.S.C. § 1292 (b), and we granted leave to take an interlocutory appeal.

The issue on appeal is whether sections 1 and 2 of the Sherman Act apply to the conduct of a state and whether sections 4 and 16 of the Clayton Act [ 15 U.S.C. §§ 15 , 26] afford Shell the remedies it seeks. Since sections 4 and 16 of the…