Challenges to Anticompetitive and Unlawful Government Action

Challenges to Anticompetitive and Unlawful Government Action

Companies, property owners, and individuals come to us when a government action is hurting their business or their property. For example:

  • A state licensing board dominated by their competitors has refused to grant them a license.
  • A Certificate of Need regime designed to protect incumbents is blocking their market entry.
  • A municipal franchise excludes them from a market that should be competitive.
  • A municipal code restricts their ability to use their own property.
  • A state administrative agency has issued a decision with anticompetitive effects on their industry.
  • A state legislature has passed a law that purports to grant private actors immunity from federal antitrust law.

The competition laws, the Constitution, and the doctrines of federal preemption and state administrative review, as examples, help those clients back into the market — or back into possession of their property.

Bona Law is one of the nation’s leading practices on antitrust federalism and the state-action immunity doctrine. Jarod Bona and Aaron Gott, along with Luke Hasskamp and Luis Blanquez, and others, have litigated the leading appellate cases on the application of the Parker state-action immunity doctrine to state licensing boards, municipal franchises, and state regulatory regimes — including the twelve AmeriCare MedServices actions against Orange County municipalities and Western Star Hospital Authority v. City of Richmond (Fourth Circuit). The firm has also filed amicus briefs in every major U.S. Supreme Court state-action immunity case of the past decade, including N.C. State Board of Dental Examiners v. FTC, FTC v. Phoebe Putney Health System, and Salt River Agricultural Improvement and Power District v. Tesla Energy Operations.

Joseph (Joey) Trujillo leads the firm’s defense of property owners and businesses facing municipal enforcement actions that raise property-rights, preemption, and California Unfair Competition Law issues, including the firm’s defense of the Enayati family in the City of Santa Monica’s § 17200 / § 17500 enforcement action challenging Santa Monica Municipal Code § 6.22.

This practice is the private-client companion to our State Attorney General Antitrust Practice — offensive challenges to anticompetitive government action and defensive representation against municipal enforcement.


Featured Analysis

Can States Grant Federal Antitrust Immunity? — A Two-Part Analysis of California’s Gig-Driver Law (AB 1340) →

Author: Aaron Gott. A two-part analysis on whether a state legislature can shield private market participants from federal antitrust liability. Part 1 applies the Parker / Midcal framework to California’s AB 1340 — explaining why the statute’s structure fails the clear-articulation and active-supervision requirements for state-action immunity. Part 2 takes the analysis to federal preemption: the Sherman Act preempts state laws that authorize or compel private antitrust violations. Read together, the two parts are the firm’s most current statement on the doctrinal limits of state-conferred antitrust immunity.


Representative matters — antitrust and state-action immunity

A selection of Bona Law matters challenging state and local government action under the federal antitrust laws:

  • AmeriCare MedServices v. City of Anaheim — twelve Orange County ambulance antitrust actions (C.D. Cal.; Ninth Circuit appeal; U.S. Supreme Court cert petition). Twelve federal antitrust actions filed by Bona Law on behalf of AmeriCare against Orange County municipalities for monopolizing the prehospital emergency and non-emergency ambulance markets under Sherman Act Sections 1 and 2. The cases advanced a market-participant exception to the Parker state-action immunity doctrine. The matter helped to anchor Bona Law’s leading practice on antitrust federalism.
  • Western Star Hospital Authority (Metro Health) v. City of Richmond, Virginia (E.D. Va.; Fourth Circuit appeal, Western Star Hospital Authority Inc. EMS v. City of Richmond, 986 F.3d 354 (4th Cir. 2021)). Section 2 monopolization action brought by Bona Law against the City of Richmond and the Richmond Ambulance Authority, challenging the City’s grant of an exclusive franchise for non-emergency ambulance services. The Fourth Circuit issued a published precedential decision addressing the scope of the Parker state-action immunity doctrine.
  • Petrie v. Virginia Board of Medicine (E.D. Va.; Fourth Circuit appeal, No. 15-1007). A Bona Law Sherman Act Section 1 action against the Virginia Board of Medicine and individual board members. The case survived the Board’s motion to dismiss and is part of the firm’s leading practice on state-action immunity as applied to state licensing boards composed of active market participants under the N.C. Dental v. FTC framework.
  • Thomason v. State of Alabama Home Builders Licensure Board (M.D. Ala.). Luke Hasskamp was brought in by existing counsel to assist with the motion-to-dismiss briefing on Sherman Act Section 1 claims against the Alabama Home Builders Licensure Board on behalf of a homebuilder. The plaintiff alleged that the Board — dominated by active market participants — engaged in anticompetitive conduct not shielded by state-action immunity under N.C. Dental. The complaint also raised equal-protection and due-process claims under the Fourteenth Amendment. 
  • University Medical-Center Entry — Certificate of Need antitrust and constitutional analysis. Bona Law analyzed and advised a university seeking to establish a medical center on the viability of antitrust and constitutional challenges to state Certificate of Need (CON) laws and the conduct of incumbent market participants who used those laws to impede competing market entrants.
  • California Department of Developmental Services (DDS) writ proceeding. Bona Law represented a California group practice in an administrative writ proceeding (California Superior Court) challenging a regional-center audit affirmed by the California Department of Developmental Services. The firm filed a Petition for Writ of Mandate seeking to vacate the agency’s decision.
  • State Licensing Board Antitrust Counseling — Professionals. Bona Law has counseled numerous licensed professionals on antitrust and related issues arising from state professional-licensing board conduct.
  • Certificate of Need (CON) Laws — Application Counseling. Bona Law has advised clients on the application of state Certificate of Need laws, including their interaction with federal antitrust and constitutional principles.

Constitutional and property rights challenges to government action

Many of our matters challenging government conduct are anchored in or alongside non-antitrust sources and doctrines such as the Takings Clause, the dormant Commerce Clause, federal preemption, California’s Unfair Competition Law and False Advertising Law, the California Coastal Act, the California Costa-Hawkins Rental Housing Act, and state and federal administrative law.

  • People of the State of California v. Enayati, et al. (L.A. Cnty. Super. Ct.). Bona Law is defending the Enayati family in a California Unfair Competition Law (Bus. & Prof. Code § 17200) and False Advertising Law (§ 17500) action brought by the City of Santa Monica, relating to Santa Monica Municipal Code § 6.22, which bans medium-term rentals (31 days to under one year). Bona Law challenges § 6.22 as preempted by California’s Costa-Hawkins Rental Housing Act, in conflict with the protection of preexisting lawful land uses, invalid for failure to comply with the California Coastal Act in Santa Monica’s coastal zone, and beyond the City Council’s authority (which the City’s Rental Charter reserves to the Rent Control Board). Bona Law also argues that the City fails to plead a viable UCL or FAL claim. 
  • Pena v. City of Los Angeles (C.D. Cal.; Ninth Circuit appeal). Bona Law served as pro bono co-counsel with the Institute for Justice in a federal constitutional-takings lawsuit on behalf of the owner of a print shop destroyed during an LAPD SWAT operation. 
  • City of Rancho Cucamonga v. DR Landmark — Eminent Domain and Quiet Title Dispute. Bona Law represented DR Landmark, a property owner, in a municipal eminent-domain and quiet-title dispute against the City of Rancho Cucamonga. Under California Code of Civil Procedure § 1245.245, the City’s failed to use the property for the public project that supported the original taking, giving DR Landmark a statutory right of first refusal to repurchase the property at the original price.

U.S. Supreme Court and federal appellate amicus practice

Bona Law has filed amicus briefs in every major U.S. Supreme Court state-action immunity case of the past decade and many constitutional and property-rights matters at the federal courts of appeals and state supreme courts. Selected amicus engagements:


What we challenge

We represent companies, property owners, and individuals in challenges to:

  • State licensing boards composed of active market participants. Sherman Act Section 1 conspiracy and Section 2 monopolization actions against state professional and occupational licensing boards under the N.C. Dental v. FTC framework. Common contexts: medical, dental, vision, chiropractic, veterinary, real estate, contracting, and homebuilding boards.
  • Municipal franchises, monopolies, and exclusive contracts. Sherman Act actions against cities, counties, and special districts that grant themselves or favored providers exclusive franchises in markets that should be competitive, including through the market-participant exception to the Parker state-action immunity doctrine. Common contexts: ambulance and EMS, waste hauling, taxi and transportation network services, and utility franchises.
  • Certificate of Need (CON) laws and other market-entry restrictions. Antitrust and constitutional challenges to state CON regimes that restrict new market entry in healthcare, hospitals, ambulance services, dialysis, and related industries (challenged under the federal antitrust laws and the dormant Commerce Clause).
  • State laws that purport to confer antitrust immunity on private actors. Federal preemption challenges to state statutes that authorize or compel private antitrust violations — the Parker / Midcal clear-articulation and active-supervision framework, plus Sherman Act preemption. The California gig-driver law (AB 1340) is the leading current example.
  • Municipal codes, land-use ordinances, and rental restrictions. Defensive and offensive challenges to municipal ordinances that restrict the use of private property — including preemption defenses under the California Costa-Hawkins Rental Housing Act, conflict-with-preexisting-lawful-use defenses, California Coastal Act compliance challenges, and challenges to a city council’s authority to legislate in an area reserved to other municipal bodies.
  • Eminent domain, takings, and the state and federal property-rights framework. Defense of property owners against unlawful eminent domain, and prosecution of statutory-repurchase claims and Fifth Amendment Takings Clause claims where a taking has occurred.
  • California Unfair Competition Law (§ 17200) and False Advertising Law (§ 17500) enforcement defense. Defense of businesses against UCL and FAL enforcement actions brought by California cities and counties, including defenses based on preemption, conflict with state law, public-deception doctrine, safe-harbor doctrine, and constitutional limits on municipal enforcement authority.
  • Federal Administrative Procedure Act (APA) claims against federal agency action. Challenges to federal agency rulemaking, adjudications, and other agency conduct under the Administrative Procedure Act, including claims that agency action is arbitrary and capricious, in excess of statutory authority, or contrary to constitutional right. See What Are the Standing Requirements for an Administrative Procedure Act Claim?
  • State administrative agency decisions with anticompetitive or unlawful effects. California administrative writ-of-mandate proceedings and equivalents in other states.
  • Counseling on state-action exposure. Pre-litigation analysis for clients evaluating whether to challenge a state licensing-board decision, a CON regime, a municipal franchise, a state statute, or a municipal ordinance.

The doctrine

This is doctrinally complex work. The federal antitrust laws, the U.S. Constitution, federal preemption principles, state and federal administrative law, and state-action-immunity doctrine together govern when private market participants can challenge government action:


Recent analysis from Bona Law

A selection of Bona Law writing on antitrust federalism, state-action immunity, federal preemption, the dormant Commerce Clause, the Takings Clause, and constitutional challenges to anticompetitive government action:


Is anticompetitive or unlawful government action hurting your business or your property?

Contact Jarod Bona, Aaron Gott, Luke Hasskamp, Luis Blanquez, or Joseph (Joey) Trujillo to discuss your matter.

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