Appellate Decisions

Rehearing En Banc Granted in State-Action Antitrust Appeal

The en banc Eleventh Circuit will address whether defendants can immediately appeal denials of the state-action antitrust defense.

December 8, 2020

By Bryan Lammon

Last summer, in SmileDirectClub, LLC v. Battle, the Eleventh Circuit affirmed an interlocutory denial of a state-action antitrust/Parker defense. The decision produced three different opinions on appellate jurisdiction. The majority applied long-standing Eleventh Circuit law holding that these denials are immediately appealable via the collateral-order doctrine. Dissenting, Judge Tjoflat argued that the order in SmileDirectClub did not conclusively decide the Parker issue, such that the collateral-order doctrine did not apply. And in a concurrence, Judge Jordan suggested that the Eleventh Circuit reexamine its law in this area. For more on the panel decision and the underlying issue of appealing the Parker defense, see my post The Eleventh Circuit Divided Over State-Action Appeals.

Today, the Eleventh Circuit ordered that the case be reheard en banc. As best I can tell from the docket, rehearing is entirely at the court’s behest. The Eleventh Circuit has not (yet?) directed the parties to brief any particular issues. But I have to imagine that the court wants to address the appealability issue (and not anything to do with the substance of the Parker defense). The only question, I think, is the scope of the en banc court’s decision. It could address whether denials of the Parker defense are appealable at all. Or it might address the narrower issue of whether private parties (like the defendants in SmileDirectClub) should be able to appeal.

I’ll be watching this closely. And thanks to Howard Bashman for letting me know about the rehearing grant.

Order Granting Rehearing En Banc, SmileDirectClub, LLC v. Battle, 2020 WL 7214148 (11th Cir. Dec. 8, 2020), available at the Eleventh Circuit and Westlaw.

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