Limits of State Action Protection for Colleges and Universities

By: Ann O’Brien & Brady Cummins (Antitrust Advocate)

A recently filed antitrust complaint against Duke University (Duke) provides a fresh reminder for colleges and universities that the state action immunity doctrine is unlikely to be a complete shield from antitrust liability even if a public university is involved. On May 29, a professor at the University of North Carolina (UNC) filed a complaint against Duke alleging that UNC and Duke had an agreement not to recruit each other’s faculty.

The alleged conduct came to light during discovery in a similar lawsuit, Seaman v. Duke University, brought in 2015 against Duke’s and UNC’s medical schools related to a no-poach agreement regarding medical faculty.

An important issue litigated in the Seaman case was the extent of protection afforded to UNC and Duke under the state action doctrine. In that case, UNC’s and Duke’s primary defense was that UNC’s state action immunity exempted any agreement by UNC from the antitrust laws. The state action doctrine in the antitrust context holds that states are immune from liability under federal antitrust laws when acting in their sovereign capacity because the Sherman Act was not intended to restrain a state’s sovereignty…

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