On June 14, the title insurance industry received good news from
the Third Circuit Court of Appeals, as the court affirmed the
dismissal of two high-profile antitrust cases that have been in
litigation for several years – In re: New Jersey
Title Insurance Litigation and McCray v. Fidelity National
Title Insurance Company. In separate opinions that, in most
respects, tracked each other in terms of analysis, the appellate
court affirmed lower court rulings that the Filed Rate Doctrine
barred plaintiffs from asserting claims that they had overpaid for
Specifically, plaintiffs alleged that insurers' rate filings
with the New Jersey and Delaware Insurance Departments included
"hidden costs" that were not disclosed to the state
regulators, and that had the Insurance Departments known of these
costs – which allegedly included kickbacks and rebates
– the regulators would not have approved the rates.
Accordingly, plaintiffs argued that the regulators had not engaged
in any "meaningful" review of the rates, and
therefore the Filed Rate Doctrine – which otherwise
precludes antitrust suits for damages based on rates filed and
approved by federal or state agencies – did not apply to
On appeal, plaintiffs renewed their argument that because there
had been no meaningful rate review by the agencies, no
deference to the agencies' rate-making expertise was required
and that the Filed Rate Doctrine should not bar their claims. The
Third Circuit, however, disagreed, holding that "the federal
courts are ill-equipped to engage in the rate making process"
in all circumstances, and the application of the doctrine
"does not depend on whether agencies actually use their
superior expertise." Because plaintiffs' antitrust claims
"would require the District Court to determine the reasonable
rate absent the alleged conspiracy – a function that
regulatory agencies are more competent to perform,"
plaintiffs' damages claims were properly dismissed. In reaching
this decision, the court noted that the 1st and 7th Circuits have
similarly found that "meaningful" agency review of rates
is not a requirement for the application of the Filed Rate
Turning to plaintiffs' claims for injunctive relief, which
are not barred by the Filed Rate Doctrine, the Third Circuit noted
that "Absent Article III standing, a federal court does not
have subject matter jurisdiction to address a plaintiff's
claims" and that Article III standing requires that
"injury-in-fact" be established. Accordingly, because the
plaintiffs had not alleged that they "intend to re-purchase
title insurance" at some later time or - in the Delaware case
- that the Delaware Title Insurance Rating Bureau intends to file
new rates in the future that would be similarly infirm,
plaintiffs' alleged injury was "merely speculative."
For this reason, the court concluded that it lacked appellate
jurisdiction to decide plaintiffs' claims for injunctive relief
and affirmed that lower court ruling as well.
With the Third Circuit's affirmance, absent an appeal to the
Supreme Court, these high-profile antitrust challenges to title
insurance rates finally come to a close after four years of
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