In Re New Jersey Title Insurance Litigation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

________

No. 10-3343
_________

IN RE: NEW JERSEY TITLE INSURANCE LITIGATION

Edward Lamb; Frances Lamb; Pat Pepe;
Olga Pepe; Cynthia Worth;
Pearl & Plumeri Associates, LLC; Julie Baier; Ian Kornbluth;
Ayanna Pacheco; Terrence Pacheco; Anne Marie Sweeney;
Mark Esposito; Christine Esposito,
Appellants

________

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-08-cv-01425)
District Judge: Honorable Garrett E. Brown, Jr.
_______

Argued April 19, 2012

Before: McKEE, Chief Judge, SLOVITER, Circuit Judge
and O’CONNOR, Associate Justice (Ret.) ∗
(Filed: June 14, 2012)
___________

∗
Hon. Sandra Day O’Connor, Associate Justice (Ret.)
of the Supreme Court of the United States, sitting by
designation.
Katrina Carroll
Joseph J. De Palma (Argued)
Mayra V. Tarantino
Lite, De Palma, Greenberg
Newark, NJ 07102

Jeffrey B. Gittleman
Gerald J. Rodos
Barrack, Rodos & Bacine
Philadelphia, PA l9l03

Steven J. Greenfogel
Meredith, Cohen, Greenfogel & Skirnick
Philadelphia, PA l9l02

Attorneys for Appellants

Roger B. Kaplan
Kenneth A. Lapatine
Stephen L. Saxl
James I. Serota (Argued)
Greenberg Traurig
New York, NY 10166

Kevin J. Arquit
Barry R. Ostrager
Patrick T. Shilling
Simpson, Thacher & Bartlett
New York, NY 10017

Christine I. Gannon
Liza M. Walsh
Connell Foley
Roseland, NJ 07068

Guy V. Amoresao
Gibbons
Newark, NJ 07102

Craig A. Linder
Gibson, Dunn & Crutcher
New York, NY 10166

2
Joseph N. Froehlich
David G. Greene
Kevin J. Walsh
Locke Lord Bissell & Liddell
New York, NY 10281

Margaret A. Keane
Dewey & LeBoeuf
East Palo Alto, CA 94303

David M. Foster
Fulbright & Jaworski
Washington, DC 20004

Erica A. Reed
Fulbright & Jaworski
New York, NY 10103

Attorneys for Appellees

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OPINION OF THE COURT
________

SLOVITER, Circuit Judge.

In their challenge to New Jersey’s title insurance
regulations, Appellants would have this court disregard a
decision of the United States Supreme Court and the
numerous cases that have relied on it. We are not about to do
that. Appellants’ efforts belong in another venue.

I.

Background

Appellants, title insurance purchasers, on behalf of
themselves and similarly situated consumers, appeal the
District Court’s orders dismissing their state and federal
antitrust claims against numerous New Jersey title insurance
companies. Appellants claim that the Appellee insurers

3
collectively fixed title insurance rates in violation of the
Sherman Act and the New Jersey Antitrust Act. The District
Court held that Appellants’ complaint is barred by the filed
rate doctrine, a lack of standing, and federal and state antitrust
liability exemptions.

In New Jersey, the Department of Banking and
Insurance (“DOBI”) approves and regulates title insurance
rates. See N.J. Stat. Ann. § 17:1C-19(a)(1). Insurers may
collectively file rates for approval with the DOBI through a
licensed “rating organization.” Id. § 17:46B-46. Appellees
are members of and file their rates through the New Jersey
Land Title Insurance Rating Bureau (“NJTIRB”)—a
“voluntary association of title insurers” acting under New
Jersey law. App. at 31, 74. The NJLTIRB “operates, more or
less, as a clearing house for its constituent members by
collecting their proposed rates and supporting data and
submitting them to the [DOBI].” In re N.J. Title Ins. Litig.,
No. 08-1425, 2009 WL 3233529, at *1 (D.N.J. Oct. 5, 2009).
New Jersey thus specifically “authorize[s] cooperative action
between or among title insurance companies in rate making.”
N.J. Stat. Ann. § 17:46B-41.

Once insurers submit rate filings with the DOBI, the
Commissioner “shall make such review of the filing as may
be necessary to carry out the provisions of [the Title
Insurance Act].” Id. § 17:46B-42(c). The Commissioner
may approve the rates, id. § 17:46B-45(a), or, after holding a
hearing, issue an order disapproving the rates, id. § 17:46B-
45(b). Additionally, the Commissioner can only approve
rates that “are not unreasonably high, and are not inadequate
for the safeness and soundness of the insurer, and are not
unfairly discriminatory.” Id. § 17:46B-45(a). Once the
DOBI issues its approval, each member of the “title insurance
rating organization shall adhere to the filings made on its
behalf.” Id. § 17:46B-47. Members, however, can seek to
modify their individual rates through a “deviation filing.” Id.
Moreover, aggrieved parties can challenge title insurance
rates through an administrative hearing, after which the

4
Commissioner may deem the rates “no longer effective.” 1 Id.
§ 17:46B-45(c).
On September 19, 2008, Appellants filed a putative
class action complaint, alleging that Appellees engaged in
collective price fixing in violation of Section 1 of the
Sherman Act and the New Jersey Antitrust Act. Appellants
alleged that “[t]hrough NJLTIRB, [Appellees] and their co-
conspirators have agreed upon and engaged in concerted
efforts to (i) collectively set and charge uniform and supra-
competitive rates for title insurance and attendant services in
New Jersey, (ii) embed within these title insurance rates
payoffs, kickbacks, and other charges that are unrelated to the
issuance of title insurance or the business of insurance, and
(iii) hide these . . . ‘costs’ from regulatory scrutiny by
funneling them to and through title agents.” App. at 42, 44.
Appellants sought immediate injunctive relief and treble
damages.

The District Court dismissed Appellants’ complaint
under Fed. R. Civ. P. 12(b)(6) but granted Appellants leave to
amend their claims. Specifically, the Court concluded that
Appellants’ claims are barred by the filed rate doctrine, which
precludes antitrust suits based on rates currently filed with
federal or state agencies. See In re N.J. Title Ins. Litig., 2009
WL 3233529, at *3. On November 4, 2009, Appellants filed
a nearly identical amended complaint which the Court also
dismissed under 12(b)(6). See In re N.J. Title Ins. Litig., No.
08-1425, 2010 WL 2710570, at *1 (D.N.J. July 6, 2010). The
Court held that: (1) Appellants lack standing to seek
injunctive relief under Article III of the Constitution and
Section 16 of the Clayton Act; (2) Appellants’ Sherman Act
claim is barred by the McCarran-Ferguson Act’s antitrust
exemption; (3) Appellants’ New Jersey Antitrust Act claim is

1
Specifically, N.J. Stat. Ann. § 17:46B-45(c) provides
that “[a]ny person or organization aggrieved with respect to
any filing which is in effect, may make written application to
the commissioner for a hearing thereon,” which the
commissioner will review to determine if a hearing is
necessary. Id. at § 17:46B-45(c). At oral argument,
Appellants admitted that they have not challenged the
Appellees’ title insurance rates in a formal administrative
hearing.
5
barred by N.J. Stat. Ann. § 56:9-5(b)(4)’s antitrust exemption;
and (4) the subsequent amendment of Appellants’ complaint
would be futile. Plaintiffs appeal.

II.

Discussion

The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367. This court has appellate
jurisdiction under 28 U.S.C. § 1291 and reviews de novo the
District Court’s dismissal of Appellants’ initial and amended
complaints. Utilimax.com, Inc. v. PPL Energy Plus, LLC,
378 F.3d 303, 306 (3d Cir. 2004). In addition, we review the
District Court’s refusal to grant Appellants leave to amend
their final complaint for abuse of discretion. Shane v. Fauver,
213 F.3d 113, 115 (3d Cir. 2000).

A. The Filed Rate Doctrine

Courts often trace the filed rate doctrine to Keogh v.
Chicago & Northwestern Railway Co., 260 U.S. 156 (1922).
In that case, a shipper alleged that certain railroad carriers
conspired to fix freight transportation rates in violation of the
Sherman Act. Id. at 160-61. The shipper sought damages
based on the unusually high rates. Id. The Supreme Court,
however, denied the shipper’s claim because the carriers had
been authorized to charge the challenged rates by the
Interstate Commerce Commission (“ICC”). Id. at 162. The
Court reasoned that it would be improper to hold carriers
civilly liable for enforcing rates that the ICC had already
approved as legal. Id. at 162-63. In addition, the Court
expressed a concern for rate discrimination, stating that the
shipper’s potential damages “might, like a rebate, operate to
give him a preference over his trade competitors.” Id. at 163.
Finally, the Court considered the impracticability of awarding
damages based on a lower hypothetical rate, which would
require “reconstituting the whole rate structure”— a task that
the Court viewed the ICC as more competent to handle. Id. at
164 (“[I]t is the Commission which must determine whether a
rate is discriminatory [i.e., legal]; at least, in the first
instance.”).

6
 The filed rate doctrine stood undisturbed by the
Supreme Court for almost three quarters of a century when
the Court re-examined the doctrine in Square D Co. v.
Niagara Frontier Tariff Bureau Inc., 476 U.S. 409 (1986).
There, various corporations alleged that the respondents
conspired with their rate making bureau to fix freight
transportation rates in violation of the Sherman Act. Id. at
410-11. The petitioners sought treble damages based on the
fixed rates. Id. at 410. They argued that “unlike Keogh,
respondents’ rates . . . were not challenged in a formal ICC
hearing,” thus claiming that the agency’s approval was
insufficient to trigger the filed rate doctrine. Id. at 417; see
also id. at n.19. Rejecting that argument, the Court reasoned
that respondents’ rates were “duly submitted, lawful rates
under the Interstate Commerce Act in the same sense that the
rates filed in Keogh were lawful.” Id. at 417. Therefore, the
Court concluded that the petitioners cannot bring a treble-
damages antitrust action. See id. at 417, 424. Moreover, the
Court approvingly quoted the Second Circuit’s interpretation
of Keogh:

“Rather than limiting its holding to cases where,
as in Keogh, rates had been investigated and
approved by the ICC, the [Keogh] Court said
broadly that shippers could not recover treble-
damages for overcharges whenever tariffs have
been filed.”

Id. at 417 n.19 (quoting Square D Co. v. Niagara Frontier
Tariff Bureau, Inc., 760 F.2d 1347, 1351 (2d Cir. 1985)).

This court has recognized that the filed rate doctrine
“bars antitrust suits based on rates that have been filed and
approved by federal agencies.” Utilimax.com, 378 F.3d at
306. Other courts of appeals have also extended the doctrine
to rates filed with state agencies. See, e.g., Wegoland Ltd. v.
NYNEX Corp., 27 F.3d 17, 20 (2d Cir. 1994) (“[C]ourts have
uniformly held, and we agree, that the rationales underlying
the filed rate doctrine apply equally strongly to regulation by
state agencies.”); H.J. Inc. v. NW. Bell Tel. Co., 954 F.2d 485,
494 (8th Cir. 1992) (“[W]e see no reason to distinguish
between rates promulgated by state and federal agencies.”).
Moreover, although the doctrine “has its origins in . . . cases

7
interpreting the Interstate Commerce Act,” it “has been
extended across the spectrum of regulated utilities.” Ark. La.
Gas Co. v. Hall, 453 U.S. 571, 577 (1981).

Appellants argue that the filed rate doctrine does not
preclude their antitrust claims because those claims do not
implicate the doctrine’s underlying policies. Although we
have not previously outlined the policies underlying the filed
rate doctrine, the Court of Appeals for the Second Circuit has
explained that the doctrine is designed to advance two
“companion principles”: (1) “preventing carriers from
engaging in price discrimination as between ratepayers,” and
(2) “preserving the exclusive role of . . . agencies in
approving rates . . . by keeping courts out of the rate-making
process,” a function that “regulatory agencies are more
competent to perform.” Marcus v. AT&T Corp., 138 F.3d 46,
58 (2d Cir. 1998). These “companion principles” are often
called the “nondiscrimination strand” and the
“nonjusticiability strand.” Id. The “nonjusticiability strand”
recognizes that “(1) legislatively appointed regulatory bodies
have institutional competence to address rate-making issues;
(2) courts lack the competence to set . . . rates; and (3) the
interference of courts in the rate-making process would
subvert the authority of rate-setting bodies and undermine the
regulatory regime.” Sun City Taxpayers’ Assoc. v. Citizens
Utils. Co., 45 F.3d 58, 62 (2d Cir. 1995). The
“nondiscrimination strand” recognizes that “victorious
plaintiffs would wind up paying less than non-suing
ratepayers.” Wegoland Ltd., 27 F.3d at 21.

The policies underlying the filed rate doctrine are also
reflected in Supreme Court precedent. In Montana-Dakota
Utilities Co. v. Northwestern Public Service Co., for example,
the Court refused to grant relief to a petitioner who claimed
that its predecessor company had paid unreasonably high
electric rates to the respondent. 341 U.S. 246, 247-48 (1951).
Addressing the issue of damages, the Court stated that “the
problem is whether it is open to the courts to determine what
the reasonable rates during the past should have been.” Id. at
251. Although the Court did not explicitly mention the filed
rate doctrine, it relied on the nonjusticiability principle to
deny relief, concluding that “reduc[ing] the abstract concept

8
of reasonableness to concrete expression in dollars and cents
is the function of the [Agency] Commission.” Id.

In Arkansas Louisiana Gas Co., on the other hand, the
Court relied heavily on the nondiscrimination strand to deny
relief. 453 U.S. at 571. There, the plaintiffs, natural gas
producers, sued a customer to recover an unfiled gas rate
under the parties’ purchase agreement. Id. at 573-74. The
parties’ agreement contained a “favored nations clause,”
which allowed the plaintiffs to charge the defendant at a rate
higher than the filed rate if the defendant ever “purchased . . .
gas from another party at a rate higher than the one it was
paying [the plaintiffs].” Id. at 573. Relying on the filed rate
doctrine, the Court recognized that “‘[t]he considerations
underlying the doctrine . . . are preservation of the agency’s
primary jurisdiction over reasonableness of rates and the need
to insure that regulated companies charge only those rates of
which the agency has been made cognizant.’” Id. at 577-78
(quoting City of Cleveland v. Fed. Power Comm’n, 525 F.2d
845, 854 (D.C. Cir. 1976)). The Court denied plaintiffs’
requested relief, however, specifically because awarding
damages based on “a rate never filed . . . and thus never found
to be reasonable” would “undermine the congressional
scheme of uniform rate regulation.” Id. at 579.

As a preliminary matter, Appellants argue that the
District Court erred by concluding that “the mere filing and
approval of rates with a regulating agency” triggers the filed
rate doctrine. Appellant’s Br. at 11. According to
Appellants, that approach is only proper where stare decisis
requires the doctrine’s application to the regulatory scheme at
issue. See id. at 12-13. Thus, before extending the doctrine
to a “new regulatory context”—i.e., New Jersey title
insurance—Appellants argue that the District Court should
have determined whether the doctrine’s underlying policies
are implicated. Id. at 11-14. Yet Appellants offer no
authority showing that those policies are elements in
determining whether to extend the doctrine to new areas. The
Supreme Court has indicated that the doctrine applies
whenever rates are properly filed with a regulating agency.
Compare Square D Co., 476 U.S. at 422 (applying the
doctrine to rates governed by the Interstate Commerce Act
and noting that “Keogh simply held that an award of treble

9
damages is not an available remedy for a private shipper
claiming that the rate submitted to, and approved by, the ICC
was the product of an antitrust violation”), with Ark. La. Gas
Co., 453 U.S. at 577 (extending the doctrine to rates governed
by the Natural Gas Act because they were “properly filed
with the appropriate federal regulatory authority”).
Furthermore, the Second Circuit has held that “the doctrine is
applied strictly . . . whenever either the nondiscrimination
strand or the nonjusticiability strand . . . is implicated.”
Marcus, 138 F.3d at 59 (emphasis added).

Appellants argue that this action does not implicate the
nonjusticiability strand because it does “not second-guess any
ratemaking determination made by the DOBI.” Appellants’
Br. at 14. They alleged in their complaint that the DOBI has
neither “actively supervised the Defendants’ collective rate
setting scheme” nor “subjected the Defendants to any analysis
designed to determine whether [their] filed rates for title
insurance and attendant services conformed to . . . statutory
requirements.” App. at 81. Appellants therefore claim that
the doctrine’s policy of deferring to agency rate-making
expertise (i.e., nonjusticiability) is irrelevant because the
DOBI did not exercise any “meaningful review” of the
challenged rates. See Appellants’ Br. at 15.

Appellees counter that the nonjusticiability strand is
“actually . . . grounded in concerns about the institutional
competence of federal courts to set rates,” not “the expertise
of state regulatory agencies.” Appellees’ Br. at 21-22. Thus,
they contend that the policy is applicable in this case because
Appellants requested the District Court to award damages
based on the rates that “would have been paid in the absence
of . . . antitrust violations.” Id. at 23 (quoting Am. Compl. at
¶ 69, App. at 45). Moreover, Appellees argue that Square D
rejected the idea that the filed rate doctrine only applies if an
agency conducts “meaningful review” of the challenged rates.
Id. at 24.

Appellants’ argument is meritless because the
nonjusticiability strand recognizes that federal courts are ill-
equipped to engage in the rate making process, which does
not depend on whether agencies actually use their superior
expertise. See, e.g., Montana-Dakota Utils. Co., 341 U.S. at

10
251 (finding that it is not “open to the courts to determine
what the reasonable rates during the past should have been”);
Sun City Taxpayers’ Assoc., 45 F.3d at 62 (“[C]ourts lack the
competence to set utility rates. . . .”); Wegoland Ltd., 27 F.3d
at 21 (“Courts are simply ill-suited to systematically second
guess the regulators’ decisions and overlay their own
resolution.”). Indeed, Appellants argue that “[t]here is no
reason a court cannot determine what [rates] the DOBI would
have approved since it does nothing but rubber stamp rates
filed by [Appellees]” but, at the same time, suggest that the
District Court should have determined what the “competitive
rates” would have been in order to award damages.
Appellants’ Reply Br. at 9. Therefore, even accepting
Appellants’ logic, their 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.” Marcus, 138 F.3d at 58.
Additionally, to the extent that the justiciability principle is
aimed at “preserv[ing] . . . the agency’s primary jurisdiction
over reasonableness of rates,” Hall, 453 U.S. at 577-78, the
adjudication of Appellants’ complaint would intrude upon
that jurisdiction because it challenges rates that the DOBI has
already approved as “not unreasonably high . . . or unfairly
discriminatory.” N.J. Stat. Ann. § 17:46B-45(a). 2

Appellants seek to reinforce their argument that the
nonjusticiability strand is only implicated where agencies
have meaningfully reviewed the challenged rate by relying on

2
Although Appellants state in their complaint that the
DOBI has not obtained the type of data necessary to
determine whether Appellees’ title insurance rates
“conformed to . . . statutory requirements,” App. at 81, they
nonetheless concede that the DOBI approved Appellees’
rates, see App. at 82. Under New Jersey law, such approval
necessarily requires a determination that the rates are “not
unreasonably high, and are not inadequate for the safeness
and soundness of the insurer, and are not unfairly
discriminatory.” N.J. Stat. Ann. § 17:46B-45(a); see also N.J.
Builders Ass’n v. Sheeran, 402 A.2d 956, 961 (N.J. Super. Ct.
App. Div. 1979) (noting that N.J. Stat. Ann. § 17:46B-45
evidently requires the DOBI Commissioner to conduct “some
degree” of fact-finding).
11
Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1992).
In that case, consumers alleged that various title insurance
companies conspired to “fix price levels for title search and
examination services.” Id. at 387. Although the insurers filed
their rates with regulating agencies, the relevant statutory
schemes required “only ‘non-disapproval’ of the rates” before
they became effective “and d[id] not require compliance with
strict guidelines.” Id. at 394. The court therefore observed
that if the challenged rates “were the product of unlawful
activity prior to their being filed and were not subjected to
meaningful review by the state, then the fact that they were
filed does not render them immune from challenge.” Id.
Furthermore, the court reasoned that “[t]he absence of
meaningful state review allows the insurers to file any rates
they want.” Id. Thus, it concluded that “the act of filing does
not legitimize a rate arrived at by improper action” and
refused to apply the filed rate doctrine. Id.

Appellants’ reliance on Brown is unpersuasive. Brown
adopts a particularly narrow and unprecedented view of the
filed rate doctrine. The regulatory schemes at issue in Brown
also required only “non-disapproval” of the challenged rates,
and it is unclear from the court’s opinion whether the
regulating agencies had to conduct any review of the rates at
all. Here, by contrast, the DOBI affirmatively approved
Appellees’ insurance rates and was legally required to do so
before the rates became effective. See N.J. Stat. Ann. §
17:46B-45(a). Under New Jersey law, the DOBI is required
to review filings to make sure they “produce rates that are not
unreasonably high, . . . are not inadequate for the safeness and
soundness of the insurer, and are not unfairly discriminatory.”
Id. Accordingly, even if Brown adopted a “meaningful
review” standard for applying the doctrine, the DOBI would
easily meet that requirement, as it: (1) affirmatively approved
the challenged rates, and (2) was required to review the rates
before issuing its approval. Finally, given Appellants’ policy
argument, their reliance on Brown seems misplaced because
the Ninth Circuit’s opinion does not mention the
nonjusticiability or nondiscrimination strands.

The Supreme Court moreover has rejected the notion
that agencies must “meaningfully review” rates under the
filed rate doctrine. In Square D, the petitioners argued that

12
the doctrine should not bar their antitrust claim because the
ICC did not conduct a hearing before approving the disputed
rates. Square D Co., 476 U.S. at 417 n.19. The Court,
however, clarified that Keogh is not limited to situations
where rates “‘had been investigated and approved by the
ICC,’” but applied “‘whenever tariffs have been filed.’” Id.
(quoting Square D Co., 760 F.2d at 1351); see also Montana-
Dakota Utils. Co., 341 U.S. at 251 (holding that the petitioner
“can claim no rate as a legal right . . . other than the filed rate,
whether fixed or merely accepted by the [Agency]
Commission”). Similarly, other courts of appeals have held
that the filed rate doctrine does not require “meaningful”
agency review. Goldwasser v. Ameritech Corp., 222 F.3d
390, 402 (7th Cir. 2000) (rejecting the argument that the
doctrine should not apply if reviewing agencies “rarely
exercise their muscle and thus give no meaningful review to
the rate structure”); Town of Norwood v. New Eng. Power
Co., 202 F.3d 408, 419 (1st Cir. 2000) (“It is the filing of the
tariffs, and not any affirmative approval or scrutiny by the
agency, that triggers the filed rate doctrine.”). Accordingly,
the nonjusticiability strand fully supports the District Court’s
application of the filed rate doctrine in this case.

Appellants claim that their action does not implicate
the doctrine’s nondiscrimination strand because it “has been
brought on behalf of all those similarly situated to the named
Plaintiffs, thus eliminating any discrimination issues.”
Appellants’ Br. at 17. Appellees, on the other hand, argue
that the nondiscrimination policy is relevant because “not
every [title insurance] purchaser will necessarily become a
member of the class or obtain recovery,” and “some class
members may opt out, while others may fail to receive actual
notice or may be excluded from the class.” Appellees’ Br. at
28.

Various courts have recognized that class-actions
reduce discrimination concerns. In Square D, for instance,
the Supreme Court indicated that “the development of class
actions . . . might alleviate the . . . concern about unfair
rebates” and seems to undermine some of the reasoning
supporting the filed rate doctrine. 476 U.S. at 423. Similarly,
the Second Circuit has noted that “concerns for
discrimination are substantially alleviated in [a] putative class

13
action.” Wegoland Ltd., 27 F.3d at 22. Thus, Appellants are
correct that their action does not clearly impact the doctrine’s
nondiscrimination strand. However, we hold that the
nonjusticiability policy alone warrants the doctrine’s
application to Appellants’ treble damages Sherman Act and
New Jersey Antitrust Act claims. 3 See Marcus, 138 F.3d at
59 (noting that the doctrine applies strictly “whenever either
the nondiscrimination strand or the nonjusticiability strand . .
. is implicated”).

This result is also appropriate under New Jersey law.
See Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685,
701 (3d Cir. 1993) (“Federal courts that decide state law
claims are required to apply the substantive law of the state
whose laws govern the action.” (internal quotation marks and
citation omitted)); see also Knevelbaard Dairies v. Kraft
Foods, Inc., 232 F.3d 979, 992-93 (9th Cir. 2000) (applying
state law in rejecting application of the filed rate doctrine to
cases involving rates set by state agencies).

Appellants argue that New Jersey precedent,
particularly Richardson v. Standard Guaranty Ins. Co., 853
A.2d 955 (N.J. Super. Ct. App. Div. 2004), does not support
the doctrine’s application to their New Jersey Antitrust Act
claim. In Richardson, the plaintiff alleged that the sales
practices of various credit card and insurance companies
fraudulently induced her to purchase several insurance
policies. Id. at 961. The court held that the plaintiff’s
action—which alleged, inter alia, that the defendants had
“unfairly or inaccurately calculated premiums”—was barred
by the filed rate doctrine. Id. As Appellants point out, the
court indicated that the “under-enforcement of ratemaking
regulations may constitute a basis for a less rigorous
application of the filed rate doctrine.” Id. at 964. The court,
however, emphasized that the statutory framework at issue
required the rate regulator (the DOBI) to “examine [rate]
filings for their fairness and their ability to disclose terms

3
It is well established that the filed rate doctrine can
serve as a defense against both federal and state actions. See,
e.g., Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S.
214, 228 (1998) (holding that the “respondent’s state-law
claims are barred by the filed rate doctrine”).
14
relevant to consumers.” Id. Thus, the court ultimately
concluded that “the filed rate doctrine should be applied.” Id.
at 965.

Relying on Richardson, Appellants argue that the filed
rate doctrine should not bar their state claim because New
Jersey’s title insurance regulations are under-enforced. More
specifically, they claim that “the DOBI has not enacted a
single regulation [governing title insurance], despite a
Legislative mandate to do so.” Appellants’ Br. at 43-44.
Even assuming those allegations to be true, Appellants’
argument is unpersuasive. In particular, the regulations in
Richardson required credit insurers to file policy rates with
the DOBI and required the Commissioner to review those
rates for excessiveness. 853 A.2d at 964. A similar
regulatory scheme is present here, since insurers must file
their rates with the DOBI, see N.J. Stat. Ann. § 17:46B-42(a),
and the DOBI must review those rates to ensure that they are
not “unreasonably high” or “unfairly discriminatory,” see id.
§ 17:46B-45(a). Accordingly, state law does not preclude the
doctrine’s application to Appellants’ New Jersey Antitrust
Act claim. 4

B. Standing to Sue

Appellants contend that the District Court erred by
dismissing their injunctive relief claims 5 under Article III of

4
Appellants also argue that “the filed rate doctrine has
been the subject of sustained criticism by the [New Jersey]
courts and has never been applied to the New Jersey title
insurance regulatory regime.” Appellants’ Br. at 40.
However, as the District Court correctly noted, New Jersey
courts have recently affirmed the vitality of the filed rate
doctrine. See, e.g., Richardson, 853 A.2d at 963 (“[T]he
doctrine maintains a substantial role in administrative
ratemaking . . . .”).
5
Appellants sought, inter alia, a “final injunction . . .
enjoining Defendants from engaging in collective rate setting
with regard to all future title insurance rate filings with the
Department of Insurance.” App. at 86.

15
the Constitution and Section 16 of the Clayton Act for lack of
standing. 6 “Section 16 of the Clayton Act, which authorizes
injunctive relief in private antitrust cases, focuses on
‘threatened loss or damage’ resulting from a violation of the
antitrust laws, and it authorizes an injunction when and under
the same conditions as injunctions are granted by ‘courts of
equity.’” Weiss v. York Hosp., 745 F.2d 786, 829 (3d Cir.
1984) (footnote and citations omitted). To establish standing
under Section 16, Appellants must “demonstrate a significant
threat of injury from an impending violation of the antitrust
laws or from a contemporary violation likely to continue or
recur.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395
U.S. 100, 130 (1969). Similarly, to establish Article III
standing, Appellants must show: “(1) injury-in-fact, which is
an invasion of a legally protected interest that is (a) concrete
and particularized, and (b) actual or imminent, not conjectural
or hypothetical; (2) a causal connection between the injury
and the conduct complained of; and (3) it must be likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.” Danvers Motor Co., Inc.
v. Ford Motor Co., 432 F.3d 286, 290-91 (3d Cir. 2005).

Appellants argue that they have standing to pursue
their Sherman Act and New Jersey Antitrust Act injunctive
relief claims because Appellees’ “collusion has deprived, and
will continue to deprive [them] of the benefits of free, open
and unrestricted competition” in the title insurance market.
Appellants’ Br. at 31-32. Further, Appellants argue that their
injuries are imminent and thus confer standing because: (1)
New Jersey requires Appellees to file any new rates with the
DOBI; and (2) “people who have already purchased real
estate are most likely to do so again and . . . homeowners, on
average, change residence every seven years.” 7 Id. at 36.

6
As the District Court recognized, the filed rate
doctrine does not bar injunctive relief claims against future
rates. See Square D. Co., 476 U.S. at 422 & n.28 (noting that
the filed rate doctrine specifically precludes antitrust claims
for treble damages).
7
Appellants must establish standing based on future
harm, since their previous title insurance purchases do not
constitute a continuing injury. As the District Court held, the
16
Appellees, on the other hand, argue that Appellants lack
standing because they have not alleged that “any new rate
submission to the DOBI by NJLTIRB is imminent, [or] that
any particular Plaintiff will purchase title insurance in the
future.” Appellees’ Br. at 46.

Appellants do not have standing because they have
failed to allege any impending injury. In their complaint,
Appellants alleged that:

(a) price competition in the sale of title
insurance and attendant services has been and
will be suppressed, restrained and eliminated;

(b) prices for title insurance and attendant
services have been and will be raised, fixed,
maintained and stabilized at artificially high and
non-competitive levels; and,

(c) purchasers of title insurance have been
and will be deprived of the benefit of free and
open competition.

App. at 85. However, as the District Court correctly
observed, Appellants did not allege that Appellees have
collectively “filed new proposed insurance rates” or “intend
to do so in the near future.” In re N.J. Title Ins. Litig., 2010
WL 2710570, at *6. Additionally, Appellants did not assert

existing rates do not constitute a cognizable legal injury under
the filed rate doctrine. Keogh, 260 U.S. at 163 (stating that
“[u]nless and until suspended or set aside, th[e filed] rate is
made, for all purposes, the legal rate”); see also Wegoland
Ltd., 27 F.3d at 18 (“[T]he doctrine holds that any ‘filed rate’
. . . is per se reasonable and unassailable in judicial
proceedings brought by ratepayers.”). Thus, Appellants must
establish standing based on the possibility of future unfair
rates. See Phillip E. Areeda & Herbert Hovenkamp, Antitrust
Law: An Analysis of Antitrust Principles and Their
Application ¶ 247d (3d ed. 2006) (“[T]here is no reason to
think Keogh would prohibit an injunction against an antitrust
violation attending some tariff that would or might be filed in
the future. Such a tariff has not been ‘filed’ at all.”).
17
that they intend to re-purchase title insurance. Although they
emphasize that New Jersey law requires insurers to file new
rates with the DOBI, that mandate does not make their claims
any less speculative because it does not indicate when
Appellees will file new rates. Likewise, Appellants’ claim
that home owners generally relocate every seven years does
not show that any Appellant plans to buy title insurance in the
future, thus failing to raise their claims above the speculative
level. Therefore, Appellants have neither established “actual
or imminent” injury-in-fact under Article III, Danvers Motor
Co., 432 F.3d at 291, nor an “impending violation of the
antitrust laws” under the Clayton Act. 8 Zenith Radio Corp.,
395 U.S. at 130.

C. Dismissal with Prejudice

Finally, Appellants argue that if they lack standing, we
must hold that the District Court abused its discretion by
denying them leave to amend their complaint and “substitute
an appropriate plaintiff.” Appellants’ Br. at 37-38. Federal
Rule of Civil Procedure 15(a)(2) provides that courts “should
freely give leave [to amend] when justice so requires.”
Further, this court has “held that even when a plaintiff does
not seek leave to amend, if a complaint is vulnerable to
12(b)(6) dismissal, a District Court must permit a curative
amendment, unless an amendment would be inequitable or
futile.” Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).

The District Court did not abuse its discretion by
denying Appellants leave to amend their complaint.
Appellants lack standing to assert their injunctive relief
claims specifically because there is no imminent threat that
the NJTIRB will file future rates. Thus, even if Appellants
substituted a plaintiff with concrete plans to purchase title
insurance, s/he would still lack standing—thus making the

8
Because Appellants lack standing to pursue their
claims, we will not reach their arguments that the District
Court erred by concluding that Appellants’ injunctive relief
claims are barred by the McCarran-Ferguson Act and N.J.
Stat. Ann. § 56:9-5(b)(4) antitrust liability exemptions.

18
amendment of Appellants’ complaint futile. 9 The District
Court therefore did not abuse its discretion by dismissing
Appellants’ action with prejudice.

III.

Conclusion

For the foregoing reasons, we will affirm the District
Court’s orders.

9
Although the District Court dismissed Appellants’
complaint with prejudice because “the McCarran-Ferguson
Act and N.J. Stat. Ann. § 56:9-5(b)(4) bar [Appellants’]
federal and state antitrust claims,” In re N.J. Title Ins. Litig.,
2010 WL 2710570, at *12, we may affirm the District Court’s
decision on different grounds. See Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 904 n.1 (3d Cir. 1997).
19