# California Ex Rel. Harris v. Safeway, Inc.

> Court of Appeals for the Ninth Circuit · July 12, 2011 · 651 F.3d 1118

URL: https://www.frixlaw.com/law-library/cases/9818223

## Case

- **Full name:** State of CALIFORNIA, Ex Rel. Kamala D. HARRIS, Plaintiff-Appellant, v. SAFEWAY, INC., a Safeway Company Doing Business as Vons; Albertsons, Inc.; Ralphs Grocery Company, a Division of the Kroger Company; Food 4 Less Food Company, a Division of the Kroger Company; Vons Companies Inc., an Indirect, Wholly Owned Subsidiary of Safeway, Inc., Defendants-Appellees; State of California, Ex Rel. Kamala D. Harris, Plaintiff-Appellee, v. Safeway Inc. a Safeway Company Doing Business as Vons; Albertsons, Inc.; Ralphs Grocery Company, a Division of the Kroger Company; Food 4 Less Food Company, a Division of the Kroger Company; Vons Companies Inc. an Indirect, Wholly Owned Subsidiary of Safeway, Inc. Defendants-Appellants
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** July 12, 2011
- **Citations:** 651 F.3d 1118; 2011 WL 2684942
- **Precedential status:** Published
- **Opinion:** Dissent by Fisher
- **Judges:** Kozinski, Schroeder, Reinhardt, Graber, McKeown, Fisher, Gould, Tallman, Rawlinson, Clifton, Smith
- **Nature of suit:** Civil
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9818223

## How later opinions describe it (automated extraction)

- explaining courts may 5 use the quick look approach where “an observer with even a rudimentary understanding of 6 economics could conclude that the arrangements in question would have an anticompetitive effect 7 on customers and markets” (cleaned up)

## Opinion text

FISHER, Circuit Judge, specially
concurring:
I join Parts I-IV.A and V of the majority opinion, and concur in the outcome of Parts IV.B-C. I have strong doubts that the grocers’ profit sharing agreement left them with an undiminished incentive to compete. Judge Reinhardt’s dissent raises serious economic concerns about the effects of even a limited profit sharing agreement that the majority has not entirely refuted. Nonetheless, I am not confident that under the novel circumstances here an “enquiry meet for the case” can be something less than the presumptive standard — the rule of reason. Cal. Dental Ass’n v. FTC, 526 U.S. 756, 770 , 119 S.Ct. 1604 , 143 L.Ed.2d 935 (1999); see Texaco Inc. v. Dagher, 547 U.S. 1, 5 , 126 S.Ct. 1276 , 164 L.Ed.2d 1 (2006). Because I do not find that a “great likelihood of anti-competitive effects can easily be ascertained” on a quick look at the record before us, Cal. Dental, 526 U.S. at 770 , 119 S.Ct. 1604 (emphasis added), and because we lack the “considerable experience” necessary for per se analysis to say the economic impact of the grocers’ agreement is “immediately obvious,” Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886-87 , 127 S.Ct. 2705 , 168 *1140 L.Ed.2d 623 (2007) (emphasis added) (quotation marks omitted), I align myself with the rule of reason outcome of the majority opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9818223. Public record. Not legal advice.