SLOVITER, Circuit Judge.
Appellants' challenge to the Delaware title insurance program trenches on the challenge raised by other parties to the New Jersey title insurance program, a challenge that we rejected today in our opinion in In Re: New Jersey Title Insurance Litigation. The same result follows here to the extent the analysis set forth here unavoidably duplicates that in In Re: New Jersey Title Insurance Litigation.
Dawn McCray, William Williamson and Daralice Grayo ("Appellants"), on behalf of themselves and similarly situated consumers, appeal the District Court's orders dismissing their federal antitrust claims against numerous Delaware title insurance companies ("Appellees"). Appellants assert that Appellees fixed the prices of title insurance in Delaware in violation of the Sherman Act and seek treble damages and injunctive relief. The District Court held that Appellants' claims are barred by the filed rate doctrine and the McCarran-Ferguson Act. We will affirm the District Court's judgment with respect to the filed rate doctrine and hold that Appellants lack standing to seek injunctive relief.
Title insurers in Delaware are required to file their insurance rates with the state's Department of Insurance ("DOI"). See Del.Code Ann. tit. 18, § 2504(a) (2012). Insurers may comply with the state's rate
Delaware insurers must propose their own "effective date" for new insurance rates. Tit. 18, § 2504(a). However, they must file those rates with the DOI Commissioner "not less than 30 days prior to the proposed effective date." Id. § 2506(c). The Delaware Code requires the Commissioner to "review filings as soon as reasonably possible." Id. § 2506(a). The Commissioner must consider various factors to determine whether the rates comport with the law and ensure that the rates are not "excessive, inadequate or unfairly discriminatory." Id. § 2503(a). Filings "shall be deemed to meet the statutory requirements unless disapproved by the Commissioner within 30 days." Id. § 2506(c). If the Commissioner determines that "additional time is needed to review a rate filing," s/he "shall... notify the filer that the review ... shall be extended" and can extend the review up to ninety days, "unless the insurer... agree[s] to a longer term." Id.
In addition to rates, the DOI typically requires insurers to "develop and file ... advisory prospective loss costs and supporting actuarial and statistical data."
On October 15, 2008, Appellants filed a class action complaint, alleging that Appellees engaged in collective price-fixing in violation of Section 1 of the Sherman Act.
The District Court dismissed Appellants' complaint under Federal Rule of Civil Procedure 12(b)(6) but granted Appellants leave to amend their request for injunctive relief. Specifically, the court concluded that Appellants' Sherman Act claim is barred by the filed rate doctrine, which precludes antitrust suits challenging rates currently filed with federal or state agencies. McCray, 636 F.Supp.2d at 327 (citations omitted). Because the doctrine does not bar certain injunctive relief claims, the Court granted Appellants leave to amend their complaint, as they "d[id] not describe in much detail the type of injunctive relief they [sought]." Id. at 334.
Appellants filed a nearly identical amended complaint, which the District Court also dismissed under Rule 12(b)(6). The Court held that Appellants' injunctive relief claim is barred by Section 1012(b) of the McCarran Ferguson Act, which exempts conduct from antitrust liability if it constitutes the "business of insurance" and is "regulated by state law." See McCray v. Fidelity Nat'l Title Ins. Co., No. 08-775, 2010 WL 3023164 (D.Del. July 29, 2010). The Court determined that Appellees' conduct met both those requirements. Appellants appeal.
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. This court has appellate jurisdiction under 28 U.S.C. § 1291 and reviews de novo the District Court's dismissal of Appellants' initial and amended complaints. Utilimax.com, Inc. v. PPL Energy Plus, LLC, 378 F.3d 303, 306 (3d Cir.2004).
Appellants argue that the District Court erred by applying the filed rate doctrine to dismiss their damages claims.
Courts often trace the filed rate doctrine to Keogh v. Chicago & Northwestern Railway Co., 260 U.S. 156, 43 S.Ct. 47, 67 L.Ed. 183 (1922). In that case, a shipper alleged that certain railroad carriers conspired to fix freight transportation rates in violation of the Sherman Act. Id. at 160-61, 43 S.Ct. 47. The shipper sought damages
The Court re-examined the filed rate doctrine in Square D Co. v. Niagara Frontier Tariff Bureau Inc., 476 U.S. 409, 106 S.Ct. 1922, 90 L.Ed.2d 413 (1986). In that case, various corporations alleged that the respondents conspired with their rate making bureau to fix freight transportation rates in violation of the Sherman Act. Id. at 410-11, 106 S.Ct. 1922. The petitioners sought treble damages based on the fixed rates. Id. at 410, 106 S.Ct. 1922. They argued that "unlike Keogh, respondents' rates ... were not challenged in a formal ICC hearing," thereby claiming that the agency's approval was insufficient to trigger the filed rate doctrine. Id. at 417, 106 S.Ct. 1922; see also id. at n. 19, 106 S.Ct. 1922. Rejecting that argument, the Court reasoned that respondents' rates were "duly submitted, lawful rates under the Interstate Commerce Act in the same sense that the rates filed in Keogh were lawful." Id. at 417, 106 S.Ct. 1922. Therefore, the Court concluded that "petitioners may not bring a treble-damages antitrust action." Id.
This court has recognized that the filed rate doctrine "bars antitrust suits based on rates that have been filed and approved by federal agencies." Utilimax.com, 378 F.3d at 306 (3d Cir.2004). Other courts of appeals have also extended the doctrine to rates filed with state agencies. See, e.g., Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 20 (2d Cir.1994) ("[C]ourts have uniformly held, and we agree, that the rationales underlying the filed rate doctrine apply equally strongly to regulation by state agencies."); H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.1992) ("[W]e see no reason to distinguish between rates promulgated by state and federal agencies."). Moreover, although the doctrine "has its origins in ... cases interpreting the Interstate Commerce Act," it "has been extended across the spectrum of regulated utilities." Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577, 101 S.Ct. 2925, 69 L.Ed.2d 856 (1981).
Appellants argue that the filed rate doctrine does not apply to Delaware title insurance rates because the doctrine is limited to comprehensive regulatory regimes, such as the Interstate Commerce Act ("ICA"). Additionally, Appellants emphasize that the interstate commerce industry, among others, no longer requires rate filing and argue that such deregulation "weighs heavily against the district court's first time extension of the doctrine to Delaware's title insurance regime." Appellants' Br. at 19. However, the fact that one industry has been partially deregulated does not mean that the filed rate doctrine is no longer valid in other areas. Because Appellants offer no authority to
Appellants further contend that the filed rate doctrine should not apply because "there is no clear repugnancy between the antitrust laws and Delaware's title insurance regulations." Appellants' Br. at 21. That argument, however, is also meritless and requires little attention from this court. As the District Court observed, Appellants' "repugnancy" argument relies on characterizing the filed rate doctrine as a complete bar against antitrust liability. See McCray, 636 F.Supp.2d at 328; see also Carnation Co. v. Pac. Westbound Conference, 383 U.S. 213, 217-18, 86 S.Ct. 781, 15 L.Ed.2d 709 (1966) (recognizing that collective ratemaking activities should not be immunized from antitrust scrutiny unless there is "plain repugnancy between the antitrust and regulatory provisions" (internal quotation marks and citation omitted)). But the doctrine itself does not eliminate "scrutiny under the antitrust laws by the Government and ... possible criminal sanctions or equitable relief." Square D, 476 U.S. at 422, 106 S.Ct. 1922. Furthermore, the Supreme Court has stated that it "disagree[s]" with the "view that the issue in Keogh ... is properly categorized as an `immunity' question," thus making Appellants' repugnancy argument inapplicable. Id.; see also Essential Commc'ns Sys., Inc. v. Am. Tel. & Tel. Co., 610 F.2d 1114, 1121 (3d Cir.1979) ("[T]he filed tariff doctrine does not confer immunity from antitrust liability generally.").
Alternatively, Appellants argue that the filed rate doctrine does not apply because Delaware's title insurance laws do not require the DOI to "meaningfully regulate title insurance rate filings." Appellants' Br. at 22. Appellees, on the other hand, argue that the filed rate doctrine is not limited to situations where the agency has meaningfully regulated or reviewed the challenged rates. Moreover, even if there is such a requirement, Appellees argue that Delaware's title insurance laws are comprehensive enough to warrant the doctrine's application.
To support their "meaningful regulation" argument, Appellants rely on two Ninth Circuit cases — Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332 (9th Cir.1990), and Brown v. Ticor Title Insurance Co., 982 F.2d 386 (9th Cir.1992). In Wileman, the plaintiffs claimed that the defendant competing fruit producers had issued unfair marketing standards without authorization from the Secretary of Agriculture. 909 F.2d at 333. Seeking to invoke the filed rate doctrine, the defendants argued that the Secretary "tacitly approved" the challenged standards because he never disapproved them and had the right to do so at any time. Id. at 337. However, the court reasoned that in Square D, "governmental approval was required before there could be any effect from the collective activity and it was such approval that legitimized the allotments and the rates." Id. The court also reasoned that the Secretary's non-disapproval did "not guarantee any level of review" and was "equally consistent with lack of knowledge or neglect." Id. at 338. It therefore refused to apply the filed rate doctrine and held that "[t]he mere fact of failure to disapprove ... does not legitimize otherwise anticompetitive conduct." Id. at 337-38.
The Ninth Circuit went a step further in Brown. There, the defendant title insurance companies actually filed their rates with regulatory agencies, but the law required "only `non-disapproval' of the rates" before they became effective "and d[id] not require compliance with strict guidelines." 982 F.2d at 394. Relying on its holding in Wileman, the court refused to apply the
Appellants argue that Brown and Wileman, along with other district court cases, represent the correct approach to the filed rate doctrine — applying the doctrine only where agencies had to engage in meaningful review of the challenged rates. Although Appellants do not indicate what level of review is necessary, they suggest that the doctrine, at a minimum, does not apply if "[r]ates are collectively set by the insurers themselves and automatically become effective unless disapproved by the agency." Appellants' Br. at 22.
Despite Brown and Wileman, the Supreme Court has never indicated that the filed rate doctrine requires a certain type of agency approval or level of regulatory review. Instead, the doctrine applies as long as the agency has in fact authorized the challenged rate.
Indeed, neither this court nor the Supreme Court has suggested that a distinction should exist between agency authorization through "approval" or "nondisapproval" of filed rates. Moreover, in this case such a distinction would be meaningless because the DOI was required to review the challenged rates. Delaware law states that "[t]he Commissioner shall review filings as soon as reasonably possible after they have been made in order to determine whether they meet the [statutory] requirements." Del. Code Ann. tit. 18, § 2506(a). Further, the Commissioner must consider various factors to make sure rate filings are not "excessive, inadequate or unfairly discriminatory." Id. § 2503(a). Therefore, even though rate filings are "deemed to meet the statutory requirements unless disapproved by the Commissioner within 30 days," the Commissioner is required to review the rates during that period and may extend the review if "additional time is needed."
Appellants next argue that the filed rate doctrine should not apply because Appellants cannot obtain retroactive relief directly from the DOI. To support this argument, Appellants rely on a series of "price squeeze" cases, which hold that the filed rate doctrine is inapplicable if a single regulator does not have authority over the challenged rates and thus cannot grant full relief. See, e.g., City of Kirkwood, 671 F.2d at 1178-79; Borough of Lansdale v. PP & L, Inc., 503 F.Supp.2d 730, 740-42 (E.D.Pa.2007). Yet, as the District Court held, those cases are irrelevant because the DOI is "fully empowered to regulate the one rate at issue." McCray, 636 F.Supp.2d at 331. Moreover, Appellants fail to present any authority showing that plaintiffs must have access to an alternative regulatory remedy before courts may apply the filed rate doctrine.
Finally, Appellants argue that the filed rate doctrine does not apply because Appellees' filings do not comply with Delaware law. The filed rate doctrine applies to rates "properly filed with the appropriate... regulatory authority." Ark. La. Gas Co., 453 U.S. at 577, 101 S.Ct. 2925. The Supreme Court explained the properly filed requirement in Security Services, Inc. v. Kmart Corp., 511 U.S. 431, 114 S.Ct. 1702,
Although we have not yet interpreted Kmart, other courts have understood the decision to mean that the filed rate doctrine does not apply where: (1) "there is an absence of a calculable rate," Whitaker v. Frito-Lay, Inc., 88 F.3d 952, 961 (11th Cir.1996); or (2) the rates are void per se under a statutory or regulatory scheme, see Norwest Transp., Inc. v. Horn's Poultry, Inc., 37 F.3d 1237, 1239 (7th Cir.1994) (finding Kmart inapplicable because the regulations at issue did not "make the previously filed tariffs void"); see also Atlantis Express, Inc. v. Associated Wholesale Grocers, Inc., 989 F.2d 281, 283-84 (8th Cir.1993) (applying both factors).
According to Appellants, the filed rate doctrine should not apply under Kmart because Appellees' filings "lack essential cost data," which is required under the DOI's regulations. Appellants' Br. at 32. The DOI typically requires insurers to "file ... prospective loss costs" and supporting data along with their proposed rates. Bulletin No. 5. However, the DOI waived that requirement with regard to Appellees' first rate filings. Bulletin No. 27. Because Appellees never filed additional rates, Appellants assert that the challenged rates no longer conform with the DOI's regulations, making the filed rate doctrine inapplicable. In response, Appellees contend that their failure to file additional rates does not show that the existing "rates were not properly filed" because the DOI "waived loss cost requirements for DTIRB's initial rate filing."
Appellees' rates do not fall under the Kmart improper filing exception. First, Appellants do not claim that Appellees' filings make it impossible for consumers to calculate the chargeable rates. See Kmart Corp., 511 U.S. at 443, 114 S.Ct. 1702. To the contrary, in their complaint, Appellants provide a detailed explanation of DTIRB's title insurance rates and state that "[t]hese uniform rates are set forth in DTIRB's rating manual and on many of defendants' websites." J.A. at 222. In addition, there is no indication that DTIRB's rates are void per se under a statutory or regulatory scheme. See Norwest Transp., Inc., 37 F.3d at 1239. Although the DOI usually requires insurers to accompany their rates with "prospective loss costs" and supporting data, the DOI waived that requirement with respect to
In their reply brief, Appellants argue that the policies underlying the filed rate doctrine do not require its application in this case. Although we have generally held that "[a]n appellant waives an argument in support of reversal if he does not raise that argument in his opening brief," AT & T v. FCC, 582 F.3d 490, 495 (3d Cir.2009), rev'd on other grounds, ___ U.S. ___, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011), it is well settled that "where an appellee raises a[n] argument not addressed by the appellant in its opening brief, the appellant may reply." Bennett v. Tucker, 827 F.2d 63, 69-70 n. 2 (7th Cir.1987). This court may thus consider Appellants' policy argument because Appellees raised it for the first time in their brief.
The filed rate doctrine is designed to advance two "companion principles": (1) "preventing carriers from engaging in price discrimination as between ratepayers," and (2) "preserving the exclusive role of ... agencies in approving rates
Appellants argue that the nonjusticiability strand does not compel the doctrine's application in this case. More precisely, Appellants claim that nonjusticiability concerns arise only "when there is an active regulator." Reply Br. at 6. Here, Appellants claim that the DOI neither "sets the rates nor exercises any meaningful review of the rates." Id. Thus, they contend that the District Court would not interfere with "the regulatory authority of the DOI" by awarding damages based on hypothetical legal rates. Id. at 7. Appellees assert that such a damage award would implicate the nonjusticiability strand because it would "second-guess the [DOI's] specialized knowledge." Appellees' Br. at 27.
The nonjusticiability strand supports the doctrine's application in this case. In their initial complaint, Appellants requested treble damages and "returned overpayments" based on Appellees' allegedly inflated title insurance rates. J.A. at 65. To award such damages, the District Court would have to calculate the legal rate but for DTIRB's antitrust violations. That task alone is enough to implicate the nonjusticiability principle, which is primarily concerned with preventing courts from engaging in the ratemaking process. See, e.g., Montana-Dakota Utils., 341 U.S. at 251, 71 S.Ct. 692 (finding that it is not "open to the courts to determine what the reasonable rates during the past should have been"). In addition, the District Court's interference in the rate making process would "subvert the authority" of the DOI by second-guessing its rate determination, thus further implicating the nonjusticiability strand. Sun City Taxpayers' Assoc., 45 F.3d at 62.
The nondiscrimination strand, on the other hand, is not implicated by Appellants' claims. Appellants brought the underlying suit on behalf of "themselves and all others similarly situated." J.A. at 45. Accordingly, it is unlikely that a victory would allow Appellants to pay less than other ratepayers. See Square D, 476 U.S. at 423, 106 S.Ct. 1922 (noting that "the development of class actions ... might alleviate the ... concern about unfair rebates"); Wegoland, 27 F.3d at 22 ("[C]oncerns for discrimination are substantially alleviated in [a] putative class action."). Nonetheless, we hold that the filed rate doctrine applies to Appellants' claims based on the nonjusticiability principle alone. See Marcus, 138 F.3d at 59 (stating that the doctrine applies "whenever either the nondiscrimination strand or the nonjusticiability strand ... is implicated").
With respect to Appellants' injunctive relief claims, they argue that the District Court erred by concluding that Appellees' "actions are statutorily exempt from antitrust liability pursuant to the
"Absent Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiff's claims, and they must be dismissed." Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir.2006). Article III standing requires "(1) injury-in-fact, which is an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 290-91 (3d Cir.2005). "Allegations of `possible future injury' are not sufficient to satisfy Article III." Reilly v. Ceridian Corp., 664 F.3d 38, 42 (3d Cir.2011) (citation omitted). Instead, "`[a] threatened injury must be certainly impending,' and `proceed with a high degree of immediacy.'" Id. (citations omitted). In the context of class actions, Article III standing "is determined vis-a-vis the named parties." Krell v. Prudential Ins. Co. of Am., 148 F.3d 283, 306 (3d Cir.1998).
Appellants lack standing to seek injunctive relief because they failed to allege an injury-in-fact.
For the foregoing reasons, we will affirm the District Court's orders.