Antitrust plaintiffs, attempting to avert or circumvent unfavorable results in federal court, have with increasing frequency begun "break-away" state court actions under less restrictive state laws. Defendants have sought to avoid the consequences of such break-away actions through removal to federal- court. This removal tactic was summarily approved by the Supreme Court in Federated Department Stores, Inc. v. Moitie. This Article criticizes the Court's disposition of the removal issue in Moitie as a departure from accepted notions of concurrent federal and state authority. This new direction, as exemplified in the microcosm of antitrust law, should be rejected by the federal courts in favor of other procedural alternatives. The Article first describes the origin and nature of the break-away problem, and then analyzes the Moltie decision and criticizes the Supreme Court's use of the "artful pleading" doctrine as a ground for removal of break-away state actions. The Article reviews one district court's attempt to reconcile Moitie with established law and then considers alternative procedural vehicles for the control of such duplicative antitrust proceedings. The Article concludes that the application of res judicata and the use of injunctions, stays, and party joinder are better methods than removal for balancing the interests of federalism and sound judicial administration in antitrust and other areas of concurrent federal-state jurisdiction.
C. Douglas Floyd,
Control of Break-Away State Antitrust Litigation: An Issue of Federalism,
35 Hastings L.J. 1
Available at: https://repository.uchastings.edu/hastings_law_journal/vol35/iss1/1