In Re Title Insurance Antitrust Cases

702 F. Supp. 2d 840 (2010)

In re TITLE INSURANCE ANTITRUST CASES.

Case No. 1:08CV677.

United States District Court, N.D. Ohio, Eastern Division.

March 31, 2010.

Bruce K. Cohen, Daniel B. Allanoff, Steven J. Greenfogel, Meredith Cohen Greenfogel & Skirnick, Eugene A. Spector, Jonathan M. Jagher, William G. Caldes, Jay S. Cohen, Spector, Roseman, Kodroff & Willis, Andrew L. MacKerer, Mager & Goldstein, Chad A. Carder, Gerald J. Rodos, Jeffrey B. Gittleman, Barrack, Rodos & Bacine, Philadelphia, PA, Barbara J. Felt, Vincent J. Esades, Heins, Mills & Olson, James S. Reece, Michael E. Jacobs, Richard M. Hagstrom, Zelle, Hofmann, Voelbel, Mason & Gette, Minneapolis, MN, Daniel R. Karon, Goldman, Scarlato & Karon, Walter W. Noss, Scott & Scott-Chagrin Falls, Roger W. Van Deusen, Van Deusen & Wagner, Cleveland, OH, Lee Albert, Murray, Frank & Sailer, Leslie Wybiral, Louis F. Burke, Law Office Of Louis F. Burke, Roger J. Bernstein, Bernstein Nackman & Feinberg, Christopher J. Gray, New York, NY, Todd B. Naylor, Jeffrey S. Goldenberg, John C. Murdock, Murdock, Goldenberg, Schneider & Groh, Cincinnati, OH, Chris T. Nolan, Perantinides & Nolan, Akron, OH, Anthony D. Shapiro, Steve W. Berman, Hagens, Berman Sobol, Shapiro, Seattle, WA, Jayne A. Goldstein, Shepherd Finkelman Miller & Shah, Weston, FL, Natalie Finkelman Bennett, Shepherd Finkelman Miller & Shah, Media, PA, Brian P. Kopp, Betras, Maruca, Kopp & Harshman, Canfield, OH, David R. Scott, Scott & Scott, Colchester, CT, Krishna B. Narine, Huntingdon Valley, PA, Kirk G. Smith, Samuel D. Edwards, Shepherd Smith Edwards & Kantas, Houston, TX, Christopher L. Lebsock, Michael P. Lehmann, Hausfeld, San Francisco, CA, Jennifer Sarnelli, Joseph J. Depalma, Lite Depalma Greenberg & Rivas, Newark, NJ, for Plaintiffs.

Arthur M. Kaufman, Deborah A. Coleman, Robert J. Fogarty, Steven A. Goldfarb, Hahn, Loeser & Parks, Patricia A. Screen, Brouse McDowell, Kerin L. Kaminski, Giffen & Kaminski, Cleveland, OH, James I. Serota, Kenneth A. Lapatine, Stephen L. Saxl, Greenberg Traurig, Mark A. Robertson, Fulbright & Jaworski, David G. Greene, Kevin J. Walsh, Locke Lord Bissell & Liddell, New York, NY, David M. Foster, Fulbright & Jaworski, Washington, DC, Gerard D. Kelly, Kevin M. Fee, Sidley Austin, Chicago, IL, Russell J. Kutell, Frost Brown Todd, Edward A. Matto, Diane E. Burke, Steptoe & Johnson, Columbus, OH, for Defendants.

MEMORANDUM OPINION

SARA LIOI, District Judge.

On September 7, 2009, Magistrate Judge Benita Pearson filed a Report and Recommendation (Doc. No. 102) resolving the Defendants' dispositive motions. Both Plaintiffs and Defendants filed timely objections to the Report. (Doc. Nos. 104 and 105, respectively.)

Upon de novo review of those portions of the Report to which the parties have made objection, this Court hereby ADOPTS, in part, and REJECTS, in part, the Report and Recommendation of the Magistrate Judge. As set forth more fully below, Defendants' Joint Motion (Doc. No. 43) and Defendant Old Republic International Corporation's motion to dismiss (Doc. No. 41) are GRANTED, and these consolidated cases are DISMISSED.

This Court's review of the Magistrate Judge's Report and Recommendation is governed by 28 U.S.C. ง 636(b), which requires a de novo decision as to those portions of the document to which objection is made. Because the parties objected only to those portions of the Magistrate Judge's Report and Recommendation relating to the application of the filed rated doctrine and the McCarran-Ferguson Act to the claims in the Consolidated Complaint, as well as the manner in which the claims were to be dismissed, the remainder of the Reportโ€”including its account of the factual and procedural history of the caseโ€”is hereby accepted as written. Thus, the Court will only provide a brief review of the facts and procedural posture sufficient to adequately frame the issues presented by the various objections.

BACKGROUND

The named Plaintiffs in these consolidated cases^[1] are individuals who have purchased title insurance from certain Defendants at some time between March 2004 and the present. These Plaintiffs seek to bring a class action on behalf of all individuals who have purchased title insurance in Ohio during the relevant time period. (Case No. 1:08CV677, Doc. No. 36, Consolidated Complaint at ถ 10(a)-(h).) Defendant insurers are alleged to have sold title insurance in Ohio during the relevant period, either directly or through subsidiaries. (Id. at ถถ 11-19.) Plaintiffs further allege that a number of the Defendant insurers are members of Defendant Ohio Title Insurance Rating Bureau (OTIRB), and that Defendant insurers charge the rates set by the OTIRB for their insurance policies. (Id. at ถถ 11-19, 21, 24; insurers and OTIRB shall be collectively referred to as "Defendants.")

The Ohio Revised Code governs the sale of title insurance in the State of Ohio, and, particularly, those regulations set forth in Title 39. While a review of the relevant regulations appears in the Magistrate's Report, the Court finds it necessary to briefly sketch out the administrative landscape. OHIO REV.CODE ง 3935.04(A) requires all title insurers to file with the superintendent of insurance "every form of a policy, endorsement, rider, manual, minimum class rate, rating schedule, or rating plan, and every other rating rule, and every modification of any of them, which it proposes to use." Insurers may satisfy their obligation to make such filings by subscribing to, or becoming a member of, a licensed rating bureau. OHIO REV.CODE ง 3935.04(B). The parties agree that OTIRB is a licensed rating bureau under ง 3935.04(B).

Where insurers belong to a rating bureau, they may permit the bureau to submit on their behalf proposed rates, along with supporting information, for consideration by the Department of Insurance. OHIO REV.CODE ง 3935.04(A). The superintendent "shall review filings as soon as reasonably possible [. . .]." ง 3935.04(C). A proposed rate becomes final thirty (30) days after it is filed, "unless it is disapproved by the superintendent within the waiting period." ง 3935.04(D).

During the waiting the period, the superintendent may require the insurer, or its bureau, to submit additional information in support of its requested rate. He may also find that the filing does not comply with the OHIO REVISED CODE. ง 3935.05(B). Once a rate submitted by a bureau has been approved by the Department of Insurance (or has not been disapproved after the expiration of the 30 day waiting period), however, the rate becomes the only legal rate. As such, the insurer members are not permitted to charge a different rate for title insurance, unless the insurer successfully petitions the superintendent for permission to deviate from the filed rate. งง 3935.04(H); 3935.07.

At no time does the State of Ohio relinquish its right to monitor and control the rates charged for title insurance. At any time after the waiting period has expired, the superintendent may find that the filed rate no longer meets the requirements of ง 3935.01 to ง 3935.17, and he shall, after a hearing and upon due notice, issue a determination that the rate is no longer effective. ง 3935.05(C).

Any person or organization aggrieved by a filed rate may submit a written application requesting a hearing before the superintendent. If (after the hearing) the superintendent finds the application to have merit, he shall issue a decision setting forth his reasons for finding that the rate is no longer effective. ง 3935.05(D).

At the heart of these consolidated actions is the allegation that Defendants have conspired to fix prices for title insurance in violation of ง 1 of the Sherman Act, 15 U.S.C. ง 1, and Ohio's Valentine Act, Ohio Rev.Code ง 1331.01 et seq. (Cons. Compl. at ถถ 49, 58, 66.) According to Plaintiffs, Defendant insurers use the OTIRB to set and charge "supracompetitive" rates. (Id. at ถถ 49-50, 52.) Allegedly hidden within these inflated rates are unlawful kickbacks and other charges unrelated to title insurance or the services provided in connection with title insurance. (Id. at ถถ 49-50.) These allegations form the basis of Plaintiffs' sole causes of action under the Sherman Act ("the federal claims") and the Valentine Act ("the state claims"). Plaintiffs seek damages and injunctive relief for both the federal and state claims.

Defendant Stewart Information Services Corporation (Stewart) filed a motion to dismiss for lack of personal jurisdiction (Doc. No. 40); Defendant Old Republic International Corporation (Old Republic) moved to dismiss for failure to state a claim under the Sherman and Ohio Valentine Acts, and for improper venue and personal jurisdiction (Doc. No. 41); and all Defendants filed a joint motion to dismiss on the grounds that Plaintiffs' claims were barred by the filed rate doctrine and by the McCarran-Ferguson Act (Doc. No. 43). The Court permitted Plaintiffs to conduct limited discovery prior to responding to these dispositive motions.

Once fully briefed, the motions were referred to Magistrate Judge Benita Pearson for the preparation of a Report and Recommendation. The Magistrate Judge conducted a hearing on the motions on May 26, 2009. Thereafter, she issued a Report and Recommendation, wherein she recommended that Defendants' joint motion be granted on the grounds that the federal and state antitrust claims were barred by the filed rate doctrine and/or the McCarran-Ferguson Act, and that Old Republic's motion to dismiss be granted on the ground that Plaintiffs failed to state a claim against it. She also recommended that all corporate parent Defendants be dismissed without prejudice, that both of the claims in the Consolidated Complaint be dismissed without prejudice against the remaining Defendants, and that Stewart's motion be denied as moot. (Report at 56.)

Plaintiffs object to the Magistrate Judge's conclusion that their claims are barred by the filed rate doctrine and/or the McCarran-Ferguson Act. Defendants object to the Magistrate Judge's recommendation that the claims be dismissed without prejudice. The Court heard oral argument on the objections on December 17, 2009. After the hearing, the Court permitted the parties to file supplemental briefs. (Doc. No. 115, Exs. 1, 2.) Now, with the benefit of multiple hearings and the parties' extensive briefing, the Court is prepared to rule.

STANDARD OF REVIEW

Defendants bring their joint motion under Fed.R.Civ.P. 12(b)(6).^[2] When reviewing a motion to dismiss for failure to state a claim, the Court must construe the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and determine whether the moving party is entitled to judgment as a matter of law. Commer. Money Ctr., Inc. v. III. Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007) (citing United States v. Moriarty, 8 F.3d 329, 332 (6th Cir. 1993)). To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "Although this is a liberal pleading standard, it requires more than the bare assertion of legal conclusions. Rather, the complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." First Am. Title Co. v. Devaugh, 480 F.3d 438, 444 (6th Cir. 2007) (quoting Se. Tex. Inns, Inc. v. Prime Hospitality Corp., 462 F.3d 666, 671-72 (6th Cir.2006)).

ANALYSIS

I. THE FILED RATE DOCTRINE

The filed rate doctrine^[3] precludes an award of damages under antitrust laws where recovery is premised on payments made under rates approved by a regulatory agency. In her Report and Recommendation, the Magistrate Judge held the filed rate doctrine applied to preclude both Plaintiffs' federal and state claims for damages, but did not operate to bar Plaintiffs' claim for injunctive relief.

In their objection, Defendants assert that the filed rate doctrine bars Plaintiffs' causes of actions in their entirety, including Plaintiffs' claims for injunctive relief. In their objections, Plaintiffs first claim that the filed rate doctrine is inapplicable to the Ohio title insurance industry. Alternatively, Plaintiffs claim that the filed rate doctrine is inapplicable to this case because Defendants' rate filings do not comply with Ohio's rate filing requirements. Finally, Plaintiffs assert that even if the filed rate doctrine bars their claims for damages, it does not bar their claims for injunctive relief. Each of these arguments is addressed seriatim.

Application of The Filed Rate Doctrine to the Ohio Title Insurance Industry is Appropriate

Keogh, Square D, and the Continued Vitality of the Filed Rate Doctrine

The filed rate doctrine made its first substantial appearance in an antitrust context in 1922, in Keogh v. Chicago & Northwestern R. Co., 260 U.S. 156, 43 S. Ct. 47, 67 L. Ed. 183 (1922). In Keogh, the Supreme Court held that a private shipper could not maintain a cause of action against an association of freight carriers that had collectively agreed on shipping rates that had been filed with, and approved by, the Interstate Commerce Commission ("ICC") under authority derived by the Interstate Commerce Act ("ICA"). Id. at 161, 43 S. Ct. 47. The rates were approved by the ICC as reasonable and non-discriminatory, and were therefore legal under the ICA. Id. The Court reasoned that once the ICC approved the rate, it became legalโ€”and a legal rate is not actionable as an antitrust injury, even if the rate resulted from an illegal combination of the carriers to fix rates. Id. at 162-3, 43 S. Ct. 47 ("A rate is not necessarily illegal because it is the result of a conspiracy in restraint of trade in violation of the [Sherman] Act. What rates are legal is determined by the [ICA].").

In Keogh, the Supreme Court reasoned that if it were to grant relief based on an antitrust violation, the authority of the ICC would be undermined. Id. at 164, 43 S. Ct. 47 ("The powers conferred upon the Commission are broad. It may investigate and decide whether a rate has been, whether it is, or whether it would be discriminatory."). Moreover, granting relief would require a court to speculate as to what the proper rate should be, a task for which courts are ill-suited. Id. Finally, an antitrust remedy in the form of damages would be discriminatory, providing relief to plaintiffs, but not to other consumers, which was contrary to the ICA's goal of uniform rates. Id. at 163, 43 S. Ct. 47.

The filed rate doctrine is not without its critics. In Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 106 S. Ct. 1922, 90 L. Ed. 2d 413 (1986), the Supreme Court recognized that, as extensively noted by Judge Friendly in the Second Circuit decision under review, several developments had undermined the reasoning of Keogh in the six decades since its pronouncement. For example, the Court acknowledged:

the development of class actions, which might alleviate the expressed concern about unfair rebates; the emergence of precedents permitting treble-damages remedies even when there is a regulatory remedy available; the greater sophistication in evaluating damages, which might mitigate the expressed fears about the speculative nature of such damages; and the development of procedures in which judicial proceedings can be stayed pending regulatory proceedings.

Square D, 476 U.S. at 423, 106 S. Ct. 1922 (citing Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1356 (2d Cir.1985) (Friendly, J.)). While the Court praised Judge Friendly's analysis as "characteristically thoughtful and incisive," it declined his invitation to overrule Keogh and instead reaffirmed the filed rate doctrine on stare decisis grounds for the sake of stability in the law. "If there is to be an overruling of the Keogh rule, it must come from Congress, rather than from this Court." Square D, 476 U.S. at 424, 106 S. Ct. 1922. Other courts that have questioned the filed rate doctrine have also adhered to it stare decisis principles. See, e.g., Security Servs. v. K Mart Corp., 511 U.S. 431, 440, 114 S. Ct. 1702, 128 L. Ed. 2d 433 (1994) (holding that the filed rate doctrine is "not subject to discretionary enforcement" even though "some may debate in other forums about [its] wisdom"); Goldwasser v. Ameritech Corp., 222 F.3d 390, 402 (7th Cir.2000) (applying filed rate doctrine in a telecommunications act case, noting that "[a]lthough the doctrine had come under some criticism, the Supreme Court reaffirmed it in Square D [], and we are bound to follow it."). The Sixth Circuit, in one of its few opinions that addresses the filed rate doctrine, commented on Square D as follows:

We do not read [Square D's] deferential language as an adoption of Judge Friendly's rationale, for on its face it is a polite refusal of an invitation. Since the Supreme Court did in fact uphold the ruling in Keogh we construe its cited language to be that the Keogh rationale, whatever else might be said of it, still commands, in the Supreme Court's view, the support of Congress. Justice Stevens emphasized "Keogh's role as an essential element of the settled legal context in which Congress has repeatedly acted in this area." Square D, 106 S.Ct. at 1930. Furthermore, we do not believe that either Keogh or Square D was intended to be limited solely to antitrust damage claims brought by shippers.

Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1452 (6th Cir.1988). Although free to do so, Congress has not acted to abrogate the filed rate doctrine.^[4]

Plaintiffs Misapprehend the Nature of the Filed Rate Doctrine

In their opposition, Plaintiffs correctly assert that the filed rate doctrine has never been applied to the Ohio title insurance industry. While Plaintiffs acknowledge that the Supreme Court has applied the filed rate doctrine to areas outside the ICC, see AT & T Co. v. Central Office Tele., Inc., 524 U.S. 214, 118 S. Ct. 1956, 141 L. Ed. 2d 222 (1998) (applying the filed rate doctrine to the Communications Act, noting that its provisions "share [the ICC's] goal of preventing unreasonable and discriminatory charges"); Ark. La. Gas Co. v. Hall, 453 U.S. 571, 101 S. Ct. 2925, 69 L. Ed. 2d 856 (1981) (applying filed rate doctrine based upon rates filed with the Federal Energy Regulatory Commission), they insist that an extension of the filed rate doctrine to the Ohio title insurance industry is improper because the Supreme Court "has repeatedly held that implied exemptions to antitrust liability are strongly disfavored." (Doc. No. 77 at 17.) Plaintiffs also correctly argue that "[r]epeals of the antitrust laws by implication from a regulatory statute are strongly disfavored, and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions." United States v. Philadelphia National Bank, 374 U.S. 321, 350-51, 83 S. Ct. 1715, 10 L. Ed. 2d 915 (1963). While Plaintiffs are correct in their general assertion, and courts indeed must be extremely reluctant to imply antitrust immunity, Plaintiffs fundamentally misapprehend the nature of the filed rate doctrine, which is not an immunity at all.

The filed rate doctrine does not create an antitrust immunity. Square D squarely rejected the proposition, advanced by petitioners in that case, that the filed rate doctrine is properly characterized as an immunity.^[5]Square D, 476 U.S. at 422, 106 S. Ct. 1922 (stating that Keogh's holding that an award of damages is not an available remedy claiming that a filed rate was the product of an antitrust violation "is far different from the creation of an antitrust immunity"). "A critical distinction remains between an absolute immunity from all antitrust scrutiny and a far more limited nonavailability of the private treble-damages remedy." Id. at 422 n. 28, 106 S. Ct. 1922 (emphasis in original). The filed rate doctrine is merely a judicially created restriction on remedies and standing under which private plaintiffs are barred from suing for a damage recovery. It does not preclude injunctive relief^[6] or prohibit the Government from seeking civil or criminal redress. Therefore, this Court rejects Plaintiffs' contention that applying the filed rate doctrine to the Ohio title insurance industry would be an impermissible extension of antitrust immunity.^[7]

Nonjusticiability and Nondiscrimination: The Policies Underlying the Filed Rate Doctrine Support its Application to the Ohio Title Insurance Industry

"[T]wo companion principles lie at the core of the filed rate doctrine: first, that legislative bodies design agencies for the specific purpose of setting uniform rates, and second, that courts are not institutionally well suited to engage in retroactive rate setting." Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 19 (2d Cir.1994). Under the first, the "nonjusticiability" principle, the filed rate doctrine "preserve[s] the regulating agency's authority to determine the reasonableness of rates," H.J., Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992). Under the second, the "nondiscrimination" principle, the filed rate doctrine "insure[s] that the regulated entities charge only those rates that the agency has approved or been made aware of as the law may require." Id. The filed rate doctrine "is applied strictly to prevent a plaintiff from bringing a cause of action even in the face of apparent inequities whenever either the nondiscrimination strand or the nonjusticiability strand underlying the doctrine is implicated by the cause of action the plaintiff seeks to pursue." Marcus v. AT & T Corp., 138 F.3d 46, 59 (2d Cir.1998) (emphasis added). This Court therefore turns to determine whether or not either of the principles underlying the filed rate doctrine are implicated here.

a) Nonjusticiability

Defendants maintain that Plaintiffs' asserted request for relief "would inescapably require this Court to make a new determination of what the multitude of different title insurance rates would have been absent Defendants' alleged `illegal conduct.'" (Doc. No. 115-2 at p. 30.) As to Plaintiffs' request for damages, this Court agrees.

The nonjusticiability principle preserves an important purpose of the filed rate doctrine: to prohibit courts from second-guessing a regulating agency's determination as to the reasonableness of a given rate. "As compared with the expertise of regulating agencies, courts do not approach the same level of institutional competence to ascertain reasonable rates." Wegoland, 27 F.3d at 21. "Courts are simply ill-suited to systematically second guess the regulators' decisions and overlay their own resolution." Id. This doctrine therefore precludes claims for damages where a court would be required to substitute "its judgment as to reasonable rates for that of an agency with specialized knowledge of the area." County of Suffolk v. Long Island Power Auth., 154 F. Supp. 2d 380, 385 (E.D.N.Y.2000).

Turning to the specifics of this case, Plaintiffs' claim for damages is addressed in paragraph 68 of their complaint:

During the period of the antitrust violations by defendants and their co-conspirators, plaintiffs and each member of the Class they represent, have purchased title insurance and, by reason of the antitrust violations herein alleged, paid more for such than would have been paid in the absence of said antitrust violations. As a result, plaintiffs and each member of the Class they represent, have been injured and damaged in an amount presently undetermined.

(Doc. No. 36 at ถ 68.)^[8] At the December 17, 2009 oral argument, Judge Dowd pointedly asked counsel for Plaintiffs to explain their theory on damages:

THE COURT: Right. I don't have this question on here, but if [t]he Court were to determine this case could go forward and that eventually plaintiffs would prevail, it would be in a class action structure, the individual plaintiffs would be entitled to some recovery? Play out for me how this case would work out in terms of remedy.

MR. COHEN: Bruce Cohen, Your Honor.

THE COURT: Go ahead.

MR. COHEN: It would depend [on] the way the case went forward, Your Honor. If Your Honor were to find that the filed rate doctrine does not apply in Ohio title insurance and if Your Honor found McCarran-Ferguson was not applicable and we went forward on the damage case, at that pointโ€”

THE COURT: You still have to show conspiracy.

MR. COHEN: That would be a matter of proof because we alleged an antitrust violation in section 1. So we go forward and should we prevail, then there would be a damage analysis, damage finding.

THE COURT: First off, there would have to be a finding of conspiracy.

MR. COHEN: There are three elements for a Section 1 case. There's a finding of conspiracy, a finding of impact from the conspiracy, and finding of damages.

THE COURT: Right.

MR. COHEN: The class would go forward on that basis. There would be a damage finding if we were successful andโ€”

THE COURT: How would you establish damage?

MR. COHEN: By expert testimony.

THE COURT: What the rates should have been had there been competition?

MR. COHEN: At this point I haven't gotten that far into it.

THE COURT: I'm trying to figure out.

(Doc. No. 114, Transcript from December 17, 2009 oral argument (hereinafter designated as "TR atโ€”") at 82-83.) The Court ordered each side to simultaneously submit post-hearing memorandums, with no page restrictions and no content restrictions. (Id. at 101-102.) Plaintiffs offered no additional argument as to how damages might be calculated absent an inquiry into the reasonableness of the rates determined by the Ohio Department of Insurance. Plaintiffs' attempt to avoid this difficult question is telling, and the answer is inescapable. As alleged repeatedly in their complaint, and reiterated multiple times in pleadings and at oral argument, Plaintiffs' theory is that Defendants' illegal conduct caused Plaintiffs to pay higher title insurance rates, instead of what the rate would have been "in the absence of said antitrust violations." The only way to quantify this harm would require this Court, at some point in the future and assuming liability is proven, to make a determination of "what the rate would have been." This quantification is the very relief the filed rate doctrine expressly forbids. Therefore, because Plaintiffs' complaint implicates the nonjusticiability principle, the filed rate doctrine applies to preclude their claim for damages.

b) Nondiscrimination

As discussed above, the filed rate doctrine applies "whenever either the nondiscrimination strand or the nonjusticiability strand underlying [it] is implicated by the cause of action the plaintiff seeks to pursue." Dolan v. Fid. Nat'l Title Ins. Co., 365 Fed.Appx. 271 (2d Cir.2010) (citing Marcus, 138 F.3d at 59). Therefore, the Court's conclusion that the nonjusticiability principle is implicated by Plaintiffs' complaint is sufficient alone to apply the filed rate doctrine. The Court also finds, however, that nondiscrimination concerns are implicated and will briefly address that principle here.

The nondiscrimination principle underlying the filed rate doctrine holds that allowing a court to bind a regulated entity to a rate that was neither filed nor found to be reasonable would undermine legislative schemes premised upon uniform rate regulation. Ark. La. Gas Co. 453 U.S. at 579, 101 S. Ct. 2925. In Marcus, the Second Circuit observed that "the Supreme Court has rejected the suggestion that the development of class actions, which might alleviate the [. . .] concern about nondiscrimination, made the nondiscrimination principle [of the filed-rate doctrine] inapplicable to a putative class action." 138 F.3d at 61 (internal quotation marks & alterations omitted) (citing Square D, 476 U.S. at 423, 106 S.Ct. 1922). The Ninth Circuit has similarly "reject[ed] the argument that the filed-rate doctrine is inapplicable to class actions." Enns v. NOS Communs. (In re NOS Communs.), 495 F.3d 1052, 1059 (9th Cir.2007).

The filed rate doctrine serves the purpose of nondiscrimination by prohibiting a court from entering a judgment that would serve to alter the rate paid by a plaintiff. See Hill v. BellSouth Telcomms., Inc., 364 F.3d 1308, 1316 (11th Cir.2004). "Even if such a challenge does not, in theory, attack the filed rate, an award of damages to the customer-plaintiff would, effectively, change the rate paid by the customer to one below the filed rate paid by other customers." Id. Therefore, no claim can be permitted to go forward that, "if successful, would require an award of damages that would have the effect of imposing different rates upon different consumers." Bryan v. BellSouth Comm's., 377 F.3d 424, 430 (4th Cir.2004).

In this case, it is undisputed that Defendants are only permitted to charge the filed rate approved by the Department of Insurance, OHIO REV.CODE ง 3935.04(H), such rates having been reviewed by the Department to ensure that the rates "shall not be excessive, inadequate, or unfairly discriminatory." ง 3935.03(B). Examining Plaintiffs' allegations reveals that, if Plaintiffs succeed in their claims for damages, Defendants "would, in essence, be forced to refund to [Plaintiffs] the amount allegedly overcharged." Taffet v. Southern Co., 967 F.2d 1483, 1491 (11th Cir.1992) (Taffet II). While this Court recognizes that "concerns for discrimination are substantially alleviated in [a] putative class action," Wegoland, 27 F.3d at 22, those concerns, albeit diminished, still exist. See Marcus and In re NOS Communs., supra. Therefore, Plaintiffs' complaint also implicates the nondiscrimination principle, and the filed rate doctrine applies to preclude their claim for damages on this independent ground as well.

Plaintiffs' Contentions that the Filed Rate Doctrine is Inapplicable Because the Ohio Department of Insurance Conducts "No Meaningful Review" of Filed Rates and the Ohio Title Insurance Scheme is not a "Pervasive Regulatory Regime" are Without Merit

Plaintiffs next argue that the filed rate doctrine should not be applied to the Ohio title insurance industry because the Ohio "regulatory regime [is] not sufficiently pervasive to ensure adequate regulatory oversight of those rates" and "there is no attempt by the [Ohio Department of Insurance] to meaningfully regulate title insurance filings." (Doc. No. 77 at p. 19.) The Court disagrees.

c) The Filed Rate Doctrine Applies Regardless of the Level of Agency Review

The Supreme Court has rejected the argument that the filed rate doctrine can only be predicated on a minimum level of agency review. In Square D, the Supreme Court rejected the petitioner's contention that the filed rate doctrine was inapplicable due to the fact that, unlike Keogh, no ICC hearing reviewing the rate had been held. The Court held that the Second Circuit decision "properly concluded that Keogh was not susceptible to such a narrow reading," Square D, 476 U.S. at 417 n. 19, 106 S. Ct. 1922, and approvingly cited Judge Friendly's decision: "Rather than limiting its holding to cases where, as in Keogh, rates had been investigated and approved by the ICC, the Court said broadly that shippers could not recover treble-damages for overcharges whenever tariffs have been filed." Id. (quoting Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 760 F.2d 1347, 1351 (2d Cir. 1985)) (emphasis added). Thus, it is the filing of the rates with the regulating agency that triggers the filed rate doctrine, not any minimum level of review undertaken by the agency.

Square D's decision to apply the filed rate doctrine irrespective of the level of agency review has been widely followed by other federal courts. In Goldwasser, the Seventh Circuit rejected the notion that the filed rate doctrine does not apply because a reviewing agency "rarely exercise[s][its] muscle and thus give[s] no meaningful review to the rate structure." Goldwasser, 222 F.3d at 402. Going even further, the First Circuit explained that "it is the filing of the tariffs, and not any affirmative approval or scrutiny by the agency, [. . .] that triggers the filed rate doctrine." Town of Norwood v. New England Power Co., 202 F.3d 408, 420 (1st Cir.2000) (emphasis in original). A district court in this circuit, under the assumption that "rates were never subjected to meaningful agency review," drew on Square D and held that "[e]ven so, the filed rate doctrine retains a sound basis. It applies to all duly submitted, lawful rates regardless of the extent of the regulatory agency's inquiry into the appropriateness of those rates." Daleure v. Kentucky, 119 F. Supp. 2d 683, 689 (W.D.Ky.2000) (emphasis added). See also In re Pa. Title Ins. Antitrust Litig., 648 F. Supp. 2d 663, 675 (E.D.Pa.2009) (holding that where the statutory scheme provides for agency review of title insurance rates, "the filed rate doctrine applies irrespective of the degree of agency inquiry, scrutiny, or exercise of regulatory muscle").

Plaintiffs contend that two Ninth Circuit decisions, Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332 (9th Cir.1990), and Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir.1992) (which relies primarily on Wileman Bros.), dictate a different conclusion. In Wileman Bros., nectarine and plum producers served as members or employees of administrative committees appointed by the Secretary of Agriculture to issue and enforce standards for marketing nectarines and plums. "The committee members promulgated the regulations themselves rather than making recommendations to the Secretary." Brown, 982 F.2d at 393 (citing Wileman Bros., 909 F.2d at 337). The Ninth Circuit rejected defendants' contention that, under the statutory scheme, "the Secretary tacitly approved the [filed rate] by failing to disapprove them as provided for in the regulations governing the committees." Wileman Bros., 909 F.2d at 337. The statute in question, 7 C.F.R. ง 916.62, provided "[e]ach and every regulation, decision, determination, or other act of the committee shall be subject to the continuing right of the Secretary to disapprove of the same at any time."

The Ninth Circuit held that Square D and Keogh mandated that "governmental approval was required before there could be any effect from the collective activity and it was such approval that legitimized the allotments and the rates." Wileman Bros. 909 F.2d at 337-38. The court continued to hold that "the mere fact of failure to disapprove, however, does not legitimize otherwise anticompetitive conduct [. . .]. [Nondisapproval] does not guarantee any level of review whatsoever."^[9]Id.

The Ohio title insurance scheme is readily distinguishable from the Agricultural Marketing Agreement and Act of 1937 at issue in Wileman Bros. The Ohio title insurance does mandate that proposed rates become final thirty days after being filed "unless disapproved by the superintendent within the waiting period." OHIO REV.CODE. ง 3935.04(D). But unlike the statute in Wileman Bros., the Ohio statutory scheme demands an affirmative duty of the superintendent. The superintendent "shall review filings as soon as reasonably possible." ง 3935.04(C) (emphasis added). While the agricultural marketing statute in Wileman Bros. gives the Secretary of Agriculture the right to review the committee's filings, review of rates submitted by the rating bureaus in Ohio to the Department of Insurance is mandated. While rates become effective "unless disapproved by the superintendent within the waiting period," the superintendent's affirmative duty to review rate filings warrants the conclusion that rates that become effective as a result of approval by the Department of Insurance, and not as the result of the "mere fact of failure to disapprove."^[10]

Brown v. Ticor Title Insurance involved Arizona and Wisconsin title insurance regulations which permitted the filing of rates by rating bureaus. Relying on Wileman Bros. (and failing to even mention Square D), the Ninth Circuit held:

if those 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. The absence of meaningful state review allows the insurers to file any rates they want. Therefore, the act of filing does not legitimize a rate arrived at by improper action.

The regulations of Arizona and Wisconsin require only "non-disapproval" of the rates and do not require compliance with strict guidelines such as those set forth under the ICC regulations. This case falls within the holding of Wileman, and we therefore hold the filed tariff doctrine is not applicable under either the Arizona or Wisconsin regulatory schemes.

Brown, 982 F.2d at 394. In the first instance, other than stating the regulations require only "non-disapproval and do not require compliance with strict guidelines" Brown offers no meaningful discussion of either the Arizona or Wisconsin regulatory schemes and is nearly devoid of analysis. Given Brown's exclusive reliance on Wileman Bros. and its conclusion that "this case falls within the holding of Wileman," however, one reasonable conclusion is that the Arizona and Wisconsin regulatory schemes at issue do not require any affirmative review by an agency whatsoever. As discussed above, however, the Ohio statutory scheme clearly contemplates more than mere non-disapproval by the Department of Insurance. Moreover, the Ohio statutory scheme requires compliance with strict guidelines. See OHIO REV.CODE. ง 3935.03 (detailing regulations as to how "rates shall be made") and ง 3935.04(C) (requiring the superintendent to "review filings as soon as reasonably possible after they have been made in order to determine whether they meet the requirements of sections 3935.01 to 3935.17"). While Brown characterized the Arizona and Wisconsin regulatory schemes as lacking meaningful state review, which it interpreted to mean allowing "insurers [to] file any rate they want," the Ohio regulatory scheme would clearly disallow such filings. ง 3935.03(B) ("Rates shall not be excessive, inadequate, or unfairly discriminatory."). Finally, to the extent Brown even warrants any consideration from this Court, it is clearly an outlier case. McCray v. Fid. Nat'l Title Ins. Co., 636 F. Supp. 2d 322, 329 (D.Del.2009) ("Other than the Ninth Circuit in Brown, no other court has taken such a narrow view of the applicability of the filed rate doctrine.").

Plaintiffs also rely on Blaylock v. First Am. Title Ins. Co., 504 F. Supp. 2d 1091 (W.D.Wash.2007). In Blaylock, the court declined to apply the filed rate doctrine to a challenge to practices by the Washington title insurance industry under state antitrust law. Again, Blaylock is easily distinguishable from this case. In Washington, "title insurance is specifically exempted" from the comprehensive scheme for setting insurance premiums generally, and, "[c]omparatively, title insurance rates are subjected to a relatively superficial system of regulation." Blaylock, 504 F.Supp.2d at 1095-96. "The most salient difference is that the Code does not require the [Office of the Insurance Commissioner] to review title insurance rates. Although the rates are submitted, and the Commissioner has 15 days in which review could occur before the rates go into effect, the Code does not actually mandate review." Id. (emphasis added). As discussed above, however, the Ohio title insurance scheme mandates affirmative review by the superintendent.

At most, Wileman Bros., Brown, and Blaylock stand for the proposition that where no review is mandated by a statutory scheme, the filed rate doctrine may be inapplicable. Even if true, the Ohio title insurance regulatory scheme's mandate of affirmative review of filed rates by the superintendent distinguishes it from the schemes in those cases. The Sixth Circuit has not ruled on whether "meaningful review" is a predicate for applying the filed rate doctrine to a regulatory scheme. This Court believes that the reasoning of cases that opine that it is unnecessary for a rate to undergo a certain "meaningful" level of scrutiny to fall within the gambit of the filed rate doctrine very persuasive, believes the Sixth Circuit would so hold, and hereby adopts that view. This view is consistent with the overarching nonjusticiability policy underlying the filed rate doctrine. Just as courts do not have the "same level of institutional competence to ascertain reasonable rates," see Wegoland, supra, nor are courts well-suited to make ex post inquiries as to whether or not an agency's review of a particular rate was "meaningful." Defining the contours of an agency's review of a filed rate is a task best left to the legislative branch. Therefore, even assuming as true Plaintiffs' contention that the Ohio Department of Insurance's level of review, which clearly and unlike Wileman Bros. contemplates more than mere non-disapproval, does not "meaningfully regulate title insurance filings," the filed rate doctrine still applies.

d) The Ohio Statutory Scheme Provides the Department of Insurance With the Authority to Review Rates

Defining the contours of an agency's review of a filed rate is an inappropriate area for a court's inquiry. But for a court to consider a rate to be a "filed rate," the statutory scheme must provide the regulatory agency with the authority to deem a rate "filed," that is, to assess the rates' compliance with statutory requirements for filed rates. See Tex. Commer. Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir.2005) (applying filed rate doctrine to statutory scheme because the scheme provided agency "oversight over the market [] sufficient to conclude that [the rates in question] are `filed' within the meaning of the filed rate doctrine"); Town of Norwood, 202 F.3d at 419 (holding market-based rates are still "filed rates" for purposes of the filed rate doctrine because agency "is still responsible for ensuring `just and reasonable' rates and, to that end, wholesale power rates continue to be filed and subject to agency review"). Compare Williams v. Duke Energy Int'l, Inc., 606 F. Supp. 2d 783, 790-791 (S.D.Ohio 2009) (hypothesizing that if an agency did not have "the authority to determine whether the rates are discriminatory or involve unlawful discounting of charges [. . .] the filed rate doctrine would be inapplicable").

Plaintiffs do not dispute the mechanics of the Ohio title insurance scheme as discussed by the Court, supra, but contend that courts refuse to apply the filed rate doctrine to situations where there is "no pervasive regulatory regime." While Plaintiffs never inform the Court what exactly a "pervasive regulatory regime" might entail, Plaintiffs suggest that Hanson v. Acceleration Life Ins. Co., No. A3-97-152, 1999 WL 33283345 (D.N.D. March 16, 1999) (unpublished) is informative. In Hanson, the court declined to apply the filed rate doctrine to the North Dakota long-term care insurance scheme. The court in Hanson noted the uncontroversial principle that the underlying conduct of the defendant "does not control whether the filed rate doctrine applies. Rather the focus for determining whether the filed rate doctrine applies is the impact the court's decision will have on agency procedures and rate determinations." H.J., Inc. v. Northwestern Bell Tel. Co., 954 F.2d 485, 489 (8th Cir.1992). The court then determined that, under the North Dakota code, "there is a lack of statutory language requiring approval of rate increases" and "[s]imply put, the North Dakota Insurance Commissioner does not have the authority to establish long term care insurance policy rates." Hanson, 1999 WL 33283345 at *4. Against this backdrop, the court in Hanson's conclusion that the filed rate doctrine was inapplicable is hardly surprising and is consistent with Tex. Commer. Energy and Town of Norwood, supra.

Under the North Dakota statutory scheme, neither of the underlying principles of the filed rate doctrine is implicated. First, long-term care insurance providers were not required to adhere to any rate, but instead could increase rates without the approval of the insurance commissioner. This obviates any concerns surrounding the applicability of the nondiscrimination principle of the filed rate doctrine, which "insure[s] that the regulated entities charge only those rates that the agency has approved or been made aware of as the law may require." H.J., 954 F.2d at 488. Second, where an agency has no authority to establish rates, there are no nonjusticiability concernsโ€”a court need not worry about "second-guessing" a regulating agency's reasonableness determination when that agency is not permitted to make the "first guess" at all.

Plaintiffs' attempt to analogize a statute where the "regulating" agency in question need not approve, and does not have the authority to establish, insurance rates to the Ohio title insurance scheme fails, and fails miserably. The Ohio title insurance scheme clearly gives the Department of Insurance the authority to assess rates' compliance with statutory requirements. The superintendent is specifically tasked with determining whether the rates are excessive, inadequate, or unfairly discriminatory. It is this authority that allows this Court to consider an Ohio title insurance rate a "filed rate." See Tex. Commer. Energy, 413 F.3d at 510. Therefore, this Court rejects Plaintiffs' unsupported contention that application of the filed rate doctrine is inappropriate because the Ohio title insurance scheme is "not sufficiently pervasive."

No "Fraud or Wrongful Act" or "Improperly Filed" Exception Exists to Preclude the Application of the Filed Rate Doctrine to Plaintiffs' Action for Damages

Plaintiffs next argue that the filed rate doctrine should not be applied to the Ohio title insurance regulatory scheme because (1) the rates submitted by the title insurance companies are fraudulent and (2) the rates submitted by the title insurance companies do not comply with Ohio requirements. Neither argument holds merit.

e) No Fraud or Wrongful Act Exception Applies to the Filed Rate Doctrine

Plaintiffs allege that "[d]efendants' design in all of this has been to effectively `hide' the cost basis for their artificially high and collective title insurance premiums from the regulatory scrutiny that Ticor demands." (Am. Compl., Doc. No. 36 at ถ 50.) Even assuming as true that the rates submitted by the Defendant were fraudulent or the product of unlawful conduct, the filed rate doctrine still applies to bar Plaintiffs' claim for damages.

The Supreme Court has not specifically addressed whether or not a fraudulent conduct or wrongful act exception applies to the filed rate doctrine. See Ark. La. Gas Co., 453 U.S. at 571, 101 S. Ct. 2925 ("We save for another day the question whether the filed rate doctrine applies in the face of fraudulent conduct."). See also Maislin 497 U.S. at 129, 110 S. Ct. 2759 (noting in dicta that although "we need not resolve this issue today" the Supreme Court has "never held that a carrier's unreasonable practice justifies departure from the filed tariff schedule"). While no Sixth Circuit case addresses this issue, courts have uniformly rejected the notion that such an exception exists.

In Wegoland, the complaint alleged that two companies "gave regulatory agencies and consumers misleading financial information to submit the inflated rates they requested." 27 F.3d at 18. The court first noted that "every court that has considered the plaintiffs' argument has rejected the notion that there is a fraud exception to the filed rate doctrine." Id. The court held "any attempt to determine what part of the rate previously deemed reasonable was a result of the fraudulent acts would require determining what rate would have been deemed reasonable absent the fraudulent acts, and then finding the difference between the two." Such an approach would squarely implicate the nonjusticiability concern underlying the filed rate doctrine and would enmesh courts in the rate-making process. The court also noted that, as a practical matter, "regulators who are intimately familiar with the industry are best situated to discover when regulated entities engage in fraud on the agency and to remedy the wrongdoing when the specter of fraud arises." Id. at 21.

In H.J., the Eighth Circuit went so far as to "reject the H.J. class's argument that the filed rate doctrine does not apply in the face of fraudulent conduct" even where the wrongful conduct alleged was the bribery of the very regulatory officials responsible for approving the submitted rates. H.J., 954 at 492. See also Taffet II, 967 F.2d at 1494 ("Given that the [regulatory agency is] equipped to take the defendants' fraud into account in setting future rates, a court's award of damages against a utility for `fraudulent rate-making' would be unnecessarily disruptive to the state's scheme of utility regulation."); Lifschultz Fast Freight, Inc. v. Consol. Freightways Corp., 805 F. Supp. 1277, 1295 (D.S.C.1992) (although plaintiff characterized his injuries as resulting from "acts of fraudulent manipulation" of the regulating agency, "it is clear to the court that Lifschultz is attempting to collaterally attack the lawfulness or reasonableness of the rates. This is exactly what the Keogh doctrine was created to prevent. The fact that the rates were allegedly set based on fraudulent information is immaterial.").

This Court holds, in accord with every other court that has confronted this issue, that there is no exception to the filed rate doctrine for fraudulent or wrongful conduct. Therefore, Plaintiffs' contention that the title insurance rates submitted by Defendants to the Ohio Department of Insurance were part of a design to "effectively hide the cost basis" of the premiums and resulted in an artificially high rate is irrelevant. The filed rate doctrine still applies.

f) No "Improperly Filed" Exception Applies

Plaintiffs next contend that the filed rate doctrine should not apply to this case because Defendants' "filings are defective and improperly filed." (Doc. No. 104 at 6 n. 3.) Plaintiffs argue that "a filed rate which is `incomplete' or lacks an `essential element' does not comply with the rate filing regulatory regime, and therefore does not invoke the filed rate doctrine." (Doc. No. 77 at 26) (citing Sec. Servs. v. K Mart Corp., 511 U.S. 431, 440, 442, 114 S. Ct. 1702, 128 L. Ed. 2d 433 (1994)). In the first instance, Plaintiffs have flyspecked language from Security Services. The holding of that case was that "rates filed with the Interstate Commerce Commissions which became `void as a matter of law' under that commission's regulations could not be enforced." See Dolan, 365 Fed.Appx. at *273 (citing Sec. Servs., 511 U.S. at 437, 114 S. Ct. 1702).

In Security Services, the defendant motor carrier filed a rate with the ICC, which received and accepted it. The application made reference to, and relied on, a specific mileage guide, filed by a rating agency to which the defendant belonged. Sec. Servs., 511 U.S. at 433, 114 S. Ct. 1702. Under ICC regulations, such mileage guides only applied to those carriers who were participants in the rating agencies that issued them. After defendant had filed its rate with the ICC, the rating agency cancelled the defendant's participation in the rating agency for failure to pay fees. By statute, once the tariff "is filed or amended to note cancellation of the carrier's participation, the carrier's tariff is void as a matter of law." Id. at 440, 114 S. Ct. 1702 (citing 49 C.F.R. ง 1312.4(d)) (emphasis added). Therefore, once cancellation occurs, the tariff becomes "incomplete" and "ceases to satisfy the fundamental purpose of tariffs; to disclose the freight charges due to the carrier." Id. Under these circumstances, the filed rate doctrine did not apply, because the shipper "could not determine the carrier's rates, since under the regulations, distance tariffs are incomplete once the carrier's participation in the Mileage Guide has been cancelled by the agent's filing." Id. at 443, 114 S. Ct. 1702. See also Atlantis Express, Inc. v. Associated Wholesale Grocers, Inc., 989 F.2d 281, 284 (8th Cir.1993) (holding filed rate doctrine inapplicable where ICC regulation voids tariffs).

Plaintiffs also rely on TON Servs. v. Qwest Corp., 493 F.3d 1225 (10th Cir.2007). In TON, the court held the filed rate doctrine inapplicable to a situation where plaintiffs sued to enforce a specific "command of the very regulatory statute giving rise to the tariff-filing requirement." 493 F.3d at 1236. TON involved a complex regulatory structure involving payphones. Relevant (and simplified) here, as it existed in 1996, entities known as local exchange carriers (including defendant in TON) owned payphone lines. These payphone lines were used, however, by both the local exchange carriers' own payphone services and by independent payphone service providers (including plaintiffs in TON). Id. at 1229. The local carriers "routinely subsidized and discriminated in favor of their own payphone services." Id. In 1996, in an effort to increase competition, Congress directed the FCC to put a stop to this practice. The FCC did so by implementing the so-called "New Services Test," which mandated that tariff rates should be based solely on a carrier's overhead costs. Id. (citing 47 C.F.R. ง 61.49(g)(2)). The FCC also established the method by which the local carriers would demonstrate their compliance, namely by accompanying tariff filings with "supporting cost data" as provided for by statute. Id. at 1231. Further, the local exchange carriers had to certify that its tariff rates were compliant with the New Services Test in order to receive "per-call compensation," which compensated payphone line owners for allowing calls from its payphones to be connected to long distance carriers. Id. The effective date for New Services Test compliance was April 15, 1997.

On April 10, 1997, five days before the FCC's orders went into effect, a group of local exchange carriers petitioned the FCC to delay the effective date because they were not prepared to file cost-based rates and other necessary data. Id. at 1231. The FCC acquiesced, but with a caveat. If, after the local exchange carriers became fully compliant with the FCC's new orders, the newly calculated compliant rate was lower than the non-compliant rate, the local exchange carriers were ordered to reimburse or credit any independent payphone service providers for the difference (calculated between the April 15, 1997 compliance deadline and the date the local carrier became fully compliant). The defendant in TON did not file any new rate or cost-data until 2002. The 2002 rate was substantially lower than the rates that had been charged by defendant since April 1997, and plaintiff sued to recover the difference in rates. As a defense, defendant argued the filed rate doctrine precluded a monetary recovery, because the defendant had filed its previous rates with the appropriate regulatory body. The Tenth Circuit rejected this defense, holding the filed rate doctrine did not apply because plaintiff sought to enforce existing regulatory orders that made damages available to those in the plaintiff's position.

Turning to this case, Plaintiffs broadly allege that Defendants' rate filings do not comply with Ohio's rate filing requirements. Plaintiffs assert that "Ohio law requires that title insurers support their rates with information about past and prospective expenses to aid the ODI [Ohio Department of Insurance] in determining whether or not those rates comply with Ohio law" and claim that Defendants' rate filings lack that data. (Doc. No. 77 at 26-27.) Further, Plaintiffs cite OHIO REV. CODE ง 3953.26, which prohibits payments to induce title insurance, and claim that Defendants' rate filings "include hidden costs which are largely comprised of kickbacks and other inducements forbidden by Ohio law." (Id.) First, even if Plaintiffs could prove that Defendants' rate filings incorporated illegal commissions paid to title insurance agents in violation of ง 3953.26, the Court is directed to no statute or regulation that would void those filed rates. See Dolan, 365 Fed.Appx. at 273.

Next, and even more problematic for Plaintiffs, is Plaintiffs' contention that Ohio law "requires that title insurers support their rates with information about past and prospective expenses." (Doc. No. 77 at 26-27.) The section to which Plaintiffs refer, ง 3935.03(C)(5), states that "[c]onsideration shall be given to [. . .](5) Past and prospective expenses both countrywide and those specially applicable to this state." Id. Plaintiffs' contention that the failure of Defendants' filings to include essential cost data somehow renders those filings invalid or "improper" is flawedโ€”the statute only states that "consideration" shall be given to such information. Moreover, ง 3935.04 is illuminative, and expressly contemplates insurers filing rates in the absence of accompanying data:

When a filing is not accompanied by the information upon which the insurer supports the filing, and the superintendent does not have sufficient information to determine whether the filing meets the requirements of sections 3935.01 to 3935.17 of the Revised Code, he shall require the insurer to furnish the information which supports the filing [. . .].

ง 3935.04(A). This statute (which is phrased in the conjunctive), therefore, allows for the superintendent to determine that a filing meets the requirements of the code in the absence of the accompanying information. Thus, while Ohio law requires the "consideration" of past and prospective expenses, it does not require any affirmative filing of supporting documentation about those expenses for a filing to be valid, but rather gives the superintendent the right to call for supporting documentation if he or she determines necessary. Therefore, even if Defendants' rate filings are not accompanied by supporting documentation regarding past and prospective expenses, that absence does not render the filing deficient, and, again, certainly does not warrant considering the rates "void" so as not to apply the filed rate doctrine.

Moreover, the Ohio statutory scheme expressly provides for the manner in which Defendants submit their rates to the Department of Insurance. It is uncontested that certain Defendants are members of the OTIRB, which files title insurance rates on behalf of its members. Section 3935.04(B) allows an insurer to "satisfy its obligation to make such filings" by becoming a member of a rating bureau and authorizing the superintendent to accept filings from the rating bureau on the insurer's behalf. Id. Therefore, even if an insurer had an obligation to submit supporting expense documentation to the Ohio Department of Insurance alongside rate filings (which it does not, see supra), an insurer can "satisfy its obligation" by joining a rating bureau. This is exactly what Defendant insurers have done in this case.

Plaintiffs direct the Court's attention to Ohio Department of Insurance Bulletin 91-1 (hereinafter "Bulletin 91-1").^[11] Bulletin 91-1 "specifies the framework under which rating bureaus and participating insurers in rating bureaus will operate in a loss cost system in the State of Ohio." Id. Under the "loss cost system," "each insurer must individually determine and file the rates it will use as a result of its own independent company decision-making process." Id. Defendants contend that Bulletin 91-1 applies to only those rating bureaus that submit only "loss cost" information on behalf of their members, and not those rating bureaus such as the OTIRB that files rates on behalf of their members.^[12] Plaintiffs, alternatively, insist that Bulletin 91-1 demonstrates that Defendants' rates "have not been properly filed," and that the filed rate doctrine should therefore not apply. (Doc. No. 77 at p. 26.)

This Court holds, however, no matter the scope of its intended application, Bulletin 91-1 cannot be read to render Defendants' rate filings improper so as not to apply the filed rate doctrine. A bulletin issued by the Ohio Department of Insurance can "provide guidance to the reader about the topic covered." See Ohio Dep't of Insurance Policy and Legislation, Bulletins, available at: http://www.insurance.ohio. gov/Legal/Bulletins/Pages/BulletinIndex.aspx.

A bulletin cannot, however, displace the unambiguous text of the Ohio Revised Code. The Code expressly permits rating bureaus to file rates on behalf of their members. Bulletin 91-1 cannot ban what the code specifically allows. Moreover, and again, even if Bulletin 91-1 does stand to show that Defendants' rates are noncompliant with Ohio law (which it does not), no statute voids those filed and approved rates so as to preclude application of the filed rate doctrine under Security Servs, supra.

The Filed Rate Doctrine Also Applies to Preclude Plaintiffs' State Law Claims for Damages

In their objection, Plaintiffs argue that even if the filed rate doctrine applies to preclude their claims for damages under the federal Sherman Act, Ohio does not recognize the filed rate doctrine and therefore the filed rate doctrine does not preclude Plaintiffs' state Valentine Act claim for damages. The Court disagrees.

First, it is important to reiterate that, as to the federal claims, it is irrelevant that the regulating agency in this case is a state, and not a federal agency. The filed rate doctrine acts to preclude actions for damages under the Sherman Act regardless of whether the regulating agency is state or federal. See, e.g., Dolan, 365 Fed.Appx. at 275 (holding "the [filed rate] doctrine applies to any `filed rate,' including rates filed with state agencies") (internal citations and quotations omitted); Crumley v. Time Warner Cable, Inc., 556 F.3d 879, 881 (8th Cir.2009) ("The filed rate doctrine also applies to rates filed with state agencies."); H.J., 954 F.2d at 494 (holding there is "no reason to distinguish between rates promulgated by state and federal agencies. We are persuaded that the rationale underlying the filed rate doctrine applies whether the rate in question is approved by a federal or state agency."); Taffet II, 967 F.2d at 1494 (holding the filed rate doctrine "applies with equal force to preclude recovery [. . .] whether the rate at issue has been set by a state rate-making authority or a federal one.").

Plaintiffs are correct, however, that the question of whether the filed rate doctrine acts to preclude their state law antitrust claims for damages as to rates filed with a state regulatory agency is a matter of Ohio law. No Ohio Supreme Court case addresses the issue of whether the filed rate doctrine acts to bar claims for damages to rates filed with the Ohio Department of Insurance. "Where the state supreme court has not spoken, our task is to discern, from all available sources, how that court would respond if confronted with the issue." Rector v. Gen. Motors Corp., 963 F.2d 144, 146 (6th Cir.1992); see also McClain v. NorthWest Cmty. Corr. Ctr. Judicial Corr. Bd., 440 F.3d 320, 328 (6th Cir.2006) (same). For the following reasons, this Court holds the Ohio Supreme Court would apply the filed rate doctrine to preclude an award of damages under the Valentine Act where premised on payments made under rates approved by a state regulatory agency.

As extensively discussed in the preceding pages, the filed rate doctrine bars damage awards premised on payments made under rates approved by a regulatory agency. Under the doctrine, a private plaintiff may not challenge the reasonableness, or validity, of the filed rate. Simply put, the filed rate is "unassailable in judicial proceedings brought by ratepayers." See Wegoland, 27 F.3d at 20. But in addition to acting as an insurmountable bar to damage recoveries by private plaintiffs, the filed rate doctrine mandates, "as a corollary, no one may bring a judicial proceeding to enforce any rate other than the rate established by the filed tariff." Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1170 (9th Cir.2002). See also Ark. La., 453 U.S. at 577, 101 S.Ct. 2925 (holding the filed rate doctrine "forbids a regulated entity to charge rates for its services other than those properly filed").

While Ohio has not applied the filed rate doctrine to preclude a suit for damages by a private plaintiff, the Ohio Supreme Court has explicitly recognized the corollary principle that regulated entities cannot charge rates other than those properly filed. In In re Investigation of Nat'l Union Fire Ins. Co., 66 Ohio St. 3d 81, 609 N.E.2d 156 (1993), an insurer (National Union) was a member of a rating organization (Insurance Services of Ohio) that, pursuant to OHIO REV.CODE ง 3937.03(B), made rate filings on National Union's behalf.^[13] Effective January 15, 1980, Insurance Services of Ohio "filed a new general liability classification structure and rating procedure applicable to governmental subdivisions with Ohio's superintendent." Id. at 83, 609 N.E.2d 156. On December 31, 1984, National Union issued a policy to the city of Brook Park, Ohio, and charged the city the rates set forth in the 1980 rating organization filing. Id. One year later, "without submitting any additional documentation to the superintendent" of insurance, National Union increased Brook Park's premiums. Id. National Union argued, for various reasons not relevant here, that "filed rates may be modified simply on the basis of underwriting judgment" and were exempt from the filing requirements of ง 3937.03.

The Ohio Supreme Court rejected this argument and held that the Ohio statutory scheme plainly required that any rate charged must set forth in a rating plan filed by or on behalf of the insurer, and deviations are not permitted without the approval of the Superintendent of Insurance. Id. at 87, 609 N.E.2d 156. As Plaintiffs themselves characterize the holding, "[i]n Nat'l Union Fire, however, the Ohio Supreme Court merely held that charging a premium other than the filed rate was impermissible." (Doc. No. 104 at p. 24.) Far from Plaintiffs' "merely held" characterization, Nat'l Union Fire recognizes, and applies, the corollary to the filed rate doctrine, and is consistent with the Court's ultimate conclusion that the Ohio Supreme Court would recognize and apply the filed rate doctrine to this case. See also Office of Consumers' Counsel v. Public Utils. Com, 61 Ohio St. 3d 396, 406-07, 575 N.E.2d 157 (1991) (Brown, J., dissenting) (recognizing "the well-established filed rate doctrine" and "one of the primary purposes of the regulation of public utilities is to prevent price discrimination"). See also Gary Phillips & Assocs. v. Ameritech Corp., 144 Ohio App. 3d 149, 153, 759 N.E.2d 833 (Ohio Ct.App.2001) (discussing public utility regulatory scheme, which requires Commission rate approval and mandates utilities charge only rates approved by Commission as "giv[ing] birth to what is known as the `filed rate doctrine'").

Plaintiffs rely on two unpublished Northern District of Ohio decisions, Chesner v. Stewart Title Guaranty Co., No. 06-cv-476, 2006 WL 2252542, 2006 U.S. Dist. LEXIS 57356 (N.D.Ohio Aug. 4, 2006) and Barnes v. First Am. Title Ins. Co., No. 06-cv-574, 2006 WL 2265553, 2006 U.S. Dist. LEXIS 54984 (N.D.Ohio Aug. 4, 2006). In relevant part, in both Barnes and Chesner, decided on the same day by the same judge using identical language, plaintiffs (purchasers of title insurance) alleged defendants (title insurance companies) committed fraud by "fail[ing] to disclose the potential for a discounted rate." Barnes, 2006 WL 2265553 at *7, 2006 U.S. Dist LEXIS 54984 at *19; Chesner, 2006 WL 2252542 at *7, 2006 U.S. Dist. LEXIS 57356 at *19. Defendants asserted the filed rate doctrine "fulfill[ed] Defendant's duty to disclose as it requires Defendant file its rates with the Ohio Department of Insurance and that such filing creates a presumption of knowledge of the rate and discount rate by the consumer." Barnes, 2006 WL 2265553 at *7, 2006 U.S. Dist. LEXIS 54984 at *20; Chesner, 2006 WL 2252542 at *7, 2006 U.S. Dist. LEXIS 57356 at *19-20. The court refused to apply the doctrine, and also noted that defendants had not "provided [Ohio] case law demonstrating the `filed rate doctrine' applies outside the public utilities or common carrier arenas." Barnes, 2006 WL 2265553 at *7, 2006 U.S. Dist. LEXIS 54984 at *20; Chesner, 2006 WL 2252542 at *7, 2006 U.S. Dist. LEXIS 57356 at *20.

The failure of defendants in Barnes and Chesner to provide Ohio case law applying the filed rate doctrine to the insurance context is understandableโ€”indeed, as discussed above, no such case law exists. Plaintiffs, in their objection and based on Barnes and Chesner, argue that because no Ohio case has applied the filed rate doctrine to the title insurance industry, the Filed Rate doctrine does not apply to the title insurance industry under Ohio law. This reasoning suffers from the fallacy of argumentum ad ignorantiam, which is "the mistake that is committed whenever it is argued that a proposition is true simply on the basis that it has not been proved false, or that it is false because it has not been proved true." See Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1257 (11th Cir.2007) (citing Irving M. Copi & Carl Cohen, INTRODUCTION TO LOGIC 93 (8th ed. 1990)).

Moreover, a brief examination of the claims presented in Barnes and Chesner quickly distinguish them from Plaintiffs' claims in this case. In Barnes and Chesner, the plaintiffs were title insurance purchasers who refinanced existing mortgages. The plaintiffs claimed that they paid a higher "premium" rate for title insurance, when, due to the fact they were refinancing and already owned an existing title insurance policy, they were entitled to pay a different, discounted rate "as provided by law." See Chesner, 2006 WL 2252542 at *5, 2006 U.S. Dist. LEXIS 57356 at *14 ("The Complaint clearly alleges the Plaintiffs purchased title insurance from Defendant and that under applicable Ohio law Plaintiffs were entitled to the discounted rate."). Plaintiffs alleged damages based on the difference between the title insurance rate actually paid, and the separate, discounted rate for which they were eligible based on their status as reissue purchasers, but of which they were unaware. Of significance, both of the rates were "filed rates." The plaintiffs claimed the title insurance companies had a duty to disclose the availability of the second, lower rate, and defendants' failure to disclose amounted to fraud.^[14] The plaintiffs did not challenge the reasonableness of the rate they paid, but rather alleged there was a separate rate (that was lower) that they would have purchased had they been made aware of its existence.

The claims asserted in Barnes and Chesner did not implicate the principles underlying the filed rate doctrine. Plaintiffs did not challenge the reasonableness of the rate paid (as determined by the regulating agency), so the court was not required to make the inquiry forbidden by the doctrine (nonjusticiability). Nor did plaintiffs' requested relief seek to alter the rate paid by plaintiffs in a manner that would result in different rates being paid by different customers (nondiscrimination).^[15] Compare the claims asserted by Plaintiffs in this case, which directly attack the reasonableness of the rate and would require the alteration of the rate paid that would potentially result in different rates being paid by different customers. Barnes and Chesner are completely inapposite and of no help to Plaintiffs in this case.

Finally, this Court looks to the Sixth Circuit's decision in Pinney Dock. There, plaintiffs brought federal and Ohio state antitrust claims against a group of railroad defendants. Relevant here, defendants asserted the filed rate doctrine as a defense against plaintiffs federal and state antitrust claims. After exhaustively considering whether or not the filed rate doctrine applied to the specific factual scenario presented,^[16] the Court concluded that the doctrine did apply and that "all rate-related claims made by the plaintiffs, whether state or federal, must be dismissed." Pinney Dock, 838 F.2d at 1482 (emphasis added). The court in Pinney Dock specifically applied the filed rate doctrine to the plaintiffs' Valentine Act claims, albeit without elucidation of its reasons in so doing.

For the foregoing reasons, this Court holds, based on all available sources, that the Ohio Supreme Court would respond to the question of whether the filed rate doctrine precludes a private plaintiff's claim for damages under the Valentine Act where premised on payments made under rates approved by a state regulatory agency in the affirmative.

The Filed Rate Doctrine Does Not Necessarily Preclude Injunctive Relief Under Either the Sherman Act or the Valentine Act

Defendants object to the Magistrate Judge's recommendation that the filed rate doctrine does not necessarily preclude Plaintiffs' claim for injunctive relief. (Doc. No. 102 at 41-42, 56 (recommending dismissal without prejudice to permit Plaintiffs to amend their complaint to present a claim for injunctive relief, despite finding "[t]he undersigned can divine no way of providing the injunctive relief [requested, due to the filed rate doctrine]").) This Court finds that the filed rate doctrine bars some, but not all, of the injunctive relief sought by Plaintiffs in this case. While the filed rate doctrine would not preclude all injunctive relief sought, however, allowing Plaintiff leave to amend their complaint would be futile, because Plaintiffs' federal claims are exempted from antitrust scrutiny by the McCarran Ferguson Act, see infra, and Plaintiffs' state claims complain of conduct specifically allowed and contemplated by the Ohio insurance code, see infra. Put more simply, as to Plaintiffs' claims under the Valentine Act, this Court cannot enjoin an alleged "illegal practice" that is, in fact, legal.

As to injunctive relief, Plaintiffs seek broadly that Defendants "be perpetually enjoined and restrained from, in any manner, directly or indirectly, continuing maintaining or renewing the aforesaid combination, conspiracy, agreement, understanding or concert of action, adopting or following any practice, plan, program or design having a similar purpose or effect in restraining competition." (Doc. No. 36 at 21.) Viewed in a light most favorable to Plaintiffs, their complaint seeks to enjoin the following activities: (1) collaboration to collectively set title insurance rates at supra-competitive prices, evidenced by the identical rate charged by Defendants, and (2) the inclusion of illegal kickbacks and inducements in the rate submitted to the ODI, which acts to "hide" the true cost basis from regulatory scrutiny.

As discussed above, the Supreme Court has recognized that the filed rate doctrine does not necessarily apply to claims for injunctive relief. Square D, 476 U.S. at 419, 422 & n. 28, 106 S. Ct. 1922 (explaining that the Keogh rule bars damage actions but that rate-related claims remain "subject to governmental and injunctive antitrust actions"); Georgia v. Pa. R.R. Co., 324 U.S. 439, 462, 65 S. Ct. 716, 89 L. Ed. 1051 (1945), superseded by statute, Reed-Bulwinkle Act, 49 U.S.C. ง 10706(b)(2), as recognized in Square D, 476 U.S. at 422-23, 106 S. Ct. 1922 (plaintiff could bring antitrust action to enjoin alleged "coercive and collusive influences" in rate-making). Courts have also recognized, however, that some forms of injunctive relief violate the nonjusticiability principle of the doctrine, and have precluded injunctive relief where the effect on the relief would result in altering a filed rate. See Town of Norwood, 202 F.3d at 420 (applying filed rate doctrine to deny injunctive relief because it "would require the alteration of tariffs" already filed and thus encroach on agency's authority (emphasis in original)). Thus, this Court can properly enjoin activity to prevent future conduct where doing so would not affect rates already filed and would not encroach on the agency's authority to determine the reasonableness of a given rate.

As to the first potential ground, prohibiting the collaboration of defendants prospectively would not alter any already-filed rate, but would result only in future rates being affected. The filed rate doctrine cannot preclude this relief. See In re Pa. Title Ins. Antitrust Litig., 648 F.Supp.2d at 686; Green v. Peoples Energy Corp., 02-C-4117, 2003 WL 1712566 at *4, 2003 U.S. Dist. LEXIS 4958 at *4 (N.D.Ill. Mar. 28, 2003) ("the critical inquiry is whether granting the injunctive relief will require dismantling the filed tariffs. If horizontal agreement is alleged and therefore the injunctive relief can be enforced without tampering with the filed rates, then [. . .] the filed rate doctrine should not be an absolute bar."). Put simply, this Court could grant injunctive relief that barred any illegal collaboration of insurers, or insurers and rating bureaus, because that relief would not affect either the already-filed rates or encroach on the Department of Insurance' authority in any way.

The second ground presents a different scenario. The essence of Plaintiffs' theory is that Defendants' rate submissions conceal the inclusion of illegal kickbacks by "calculating a single rate that comprises both the premium for the title insurance and the kickbacks" and thereby evade Department of Insurance scrutiny. To be certain, kickbacks, or more formally "payments to induce title insurance business" are illegal under Ohio law. OHIO REV.CODE ง 3953.26. But Plaintiffs do not seek to enjoin the kickbacks themselves,^[17] but rather the inclusion of the kickbacks in the "single rate" submitted to the Department of Insurance. Were this Court to grant the relief Plaintiffs seek, the regulatory authority of the Ohio Department of Insurance would be seriously undermined. As discussed in the preceding paragraphs, the Ohio statutory scheme mandates that the superintendent "shall review" every rate submission to ensure its compliance with Ohio law and gives the superintendent the right to call for additional documentation if he determines necessary. Were this Court to enjoin Defendants from submitting a "single rate" and require a detailed accounting of how a particular rate was calculated, this Court would, in effect, be substituting its own judgment as to how rate filings should be reviewed for that of the regulating agency's, and by implication, necessarily conclude that the scheme as it exists results in unreasonable rates. This squarely implicates the nonjusticiability principle of the filed rate doctrine. Just as the filed rate doctrine precludes injunctive relief that results in the alteration of a filed rate due to nonjusticiability concerns, see Town of Norwood, supra, so too must the filed rate doctrine preclude injunctive relief where such relief would displace the statutory scheme and authority of the regulating agency to determine the reasonableness of rates.

Conclusion

For the foregoing reasons, the Court holds that the filed rate doctrine applies to the Ohio title insurance industry and Plaintiffs' claims for damages under both the Sherman Act and the Valentine Act are therefore precluded. The Court therefore OVERRULES Plaintiffs' objections in this regard. Moreover, the Court holds that Plaintiffs' claim for injunctive relief as to the allegedly "illegal collaboration" of title insurance companies and rating bureaus is not precluded by the filed rate doctrine and OVERRULES Defendants' objections to that extent. Defendants' objection to Plaintiffs' claim for injunctive relief based on the inclusion of kickbacks into the "single rate" submitted to the Ohio Department of Insurance is well-taken and is SUSTAINED.

II. MCCARRAN-FERGUSON ACT

The Antitrust Exception

The Magistrate Judge also found that Plaintiffs' Sherman Act claim was barred by the McCarran-Ferguson Act. With respect to this finding, Plaintiffs raise two objections. First, Plaintiffs complain that the Magistrate Judge failed to evaluate whether application of Plaintiffs' federal antitrust claim would "invalidate, impair, or supersede" the relevant Ohio insurance laws. (Plaintiffs' Objections at 21, quoting Humana v. Forsyth, 525 U.S. 299, 307, 119 S. Ct. 710, 142 L. Ed. 2d 753 (1999) (internal citation omitted)). Defendants insist that such a consideration was not necessary, suggesting that the Magistrate Judge properly limited her analysis to the question of whether the disputed conduct was the business of insurance, regulated by state law, and not a boycott. According to Defendants, because the Sherman Act was specifically identified in the McCarran-Ferguson Act, Congress had already determined that application of the Sherman Act would "invalidate, impair, or supersede" a state's regulation of the business of insurance. The "impairment" clause, Defendants maintain, is reserved for McCarran-Ferguson defenses raised as to laws other than antitrust laws. (Doc. No. 111, Defendants' Responses to Plaintiffs' Objections at 27-29.) To resolve this dispute, the Court turns to the language of the statute. See Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 210, 99 S. Ct. 1067, 59 L. Ed. 2d 261 (1979) ("The starting point in a case involving construction of the McCarran-Ferguson Act, like the starting point in any case involving the meaning of a statute, is the language of the statute itself.")

The McCarran-Ferguson Act provides that "the business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or the taxation of such business." 15 U.S.C. ง 1012(a). The Act further declares that "no Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purposes of regulating the business of insurance [. . .]." 15 U.S.C. ง 1012(b). "Federal law thus provides for `reverse preemption' in the realm of regulating the insurance business." Genord v. Blue Cross & Blue Shield, 440 F.3d 802, 805 (6th Cir.2006). As such, a federal law that does not directly relate to the business of insurance cannot be construed to "invalidate, impair, or supersede" a state law enacted to regulate the business of insurance. Id.; 15 U.S.C. ง 1012(b).

The McCarran-Ferguson Act, however, contains an "antitrust exception" to the reverse preemption rule. After setting forth the rule, the Act specifically identifies the Sherman Act, the Clayton Act, and the Federal Trade Commission Act, and states that these laws "shall be applicable to the business of insurance to the extent that such business is not regulated by State law." ง 1012(b).

To determine whether the McCarran-Ferguson Act applies, a court generally begins with the threshold question of whether the federal statute at issue "specifically relates to the business of insurance." If it does, the Act does not allow for reverse preemption. Genord, 440 F.3d at 805. If not, then the two remaining questions that must be answered in the affirmative if the federal law is reverse preempted by the state statute are: (1) "whether the state statute at issue was `enacted [. . .] for the purpose of regulating the business of insurance;'" and (2) "[w]hether the application of the federal law would `invalidate, impair, or supersede' the state statute." Id. (quoting ง 1012(b)). See Kenty v. Bank One, Columbus, N.A., 92 F.3d 384, 392 (6th Cir.1996).

Defendants argue that the antitrust exception expressly exempts from Sherman Act liability activity that constitutes the "business of insurance" to the extent it is regulated by state law. According to Defendants, a defendant in an antitrust case need not show that the Sherman Act would "invalidate, impair, or supersede" a state's regulation. Instead, the Court need only find that the activity of which a plaintiff complains constitutes the business of insurance, regulated by state law, and not a boycott.

The Court agrees. "[T]he language of the [McCarran-Ferguson A]ct distinguishes preclusion analysis where antitrust laws are at issue." Sabo v. Metro. Life Ins. Co., 137 F.3d 185, 189 n. 1 (3d Cir. 1998) ("Because the plaintiff's complaint is not grounded in federal antitrust laws, we focus our analysis on the first clause of section 1012(b).") In Royal Drug, the Supreme Court restricted its inquiry into whether the McCarran-Ferguson Act barred a Sherman Act antitrust claim challenging state pharmacy agreements to the question of whether the pharmacy agreements were the business of insurance. 440 U.S. at 210, 99 S. Ct. 1067 The same limited inquiry was applied to the antitrust claim raised in Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S. Ct. 3002, 73 L. Ed. 2d 647 (1982). See Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 167, n. 1 (3d Cir.2001) (internal citation omitted) ("In [United States v.] Fabe, [508 U.S. 491, 113 S. Ct. 2202, 124 L. Ed. 2d 449 (1993) ], the Court noted that Pireno dealt with the McCarran Act's effect on antitrust laws, which the Court found readily distinguishable from other laws. This is because there are two separate clauses in the McCarran Act. According to the Supreme Court, the second clause, which proscribes application of antitrust laws, is more `narrowly circumscribed' than the first clause, which deals with federal laws in general.").

Because Plaintiffs have raised a claim under the Sherman Act, the antitrust exception controls and the Magistrate Judge properly limited her inquiry to the question of whether Defendants' activities constitute the "business of insurance." The Court, therefore, OVERRULES Plaintiffs' objection that the Magistrate Judge erred in not considering whether the Sherman Act would "invalidate, impair, or supersede" the state law.^[18]

The Business of Insurance

The Court turns to the questions posed by the second clause of ง 2(b) of the McCarran-Ferguson Act: namely, "(1) whether the practice of the defendants challenged here falls within the term `business of insurance' and (2) whether it is `regulated by state law.'" McIlhenny v. American Title Insurance Co., 418 F. Supp. 364, 367 (E.D.Pa.1976). Plaintiffs' second objection under the McCarran-Ferguson Act is directly linked to this phase of the analysis. Specifically, Plaintiffs complain that the Magistrate Judge erred in finding that Defendants' conduct constituted the "business of insurance."

In Pireno, the Supreme Court announced the test for determining whether a particular practice is part of the "business of insurance" exempted from the antitrust laws by ง 2(b): "first, whether the practice had the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry." Pireno, 458 U.S. at 129, 102 S. Ct. 3002 (emphasis in the original). No one factor is outcome determinative and must be considered along with the whole body of evidence. Id. The Magistrate Judge found all three elements present, and this Court concurs.

There is little doubt that the setting of rates for insurance policies constitutes the "business of insurance." Royal Drug, 440 U.S. at 224, 99 S. Ct. 1067; see also Gilchrist v. State Farm Mut. Auto. Ins. Co., 390 F.3d 1327, 1331 (11th Cir.2004) ("Rate-making, of course, is the paradigmatic example of the conduct that Congress intended to protect by the McCarran-Ferguson Act.") Plaintiffs do not suggest otherwise. Instead, Plaintiffs argue that, by its very nature, title insurance is fundamentally different than other forms of insurance, and that it is not, in fact, insurance at all. Suggesting that title insurance is more akin to a warranty or a guarantee, Plaintiffs observe that it merely "warrants that the title insurance company made no mistakes in the title search conducted prior to the closing, and it warrants that there has been no fraud on the part of the title agents." (Plaintiffs' Objections at 29.)

As to the question of whether title insurance constitutes "insurance" for the purpose of the McCarran-Ferguson Act, this Court does not write on a clean slate. Courts that have considered the issue have consistently found, as a matter of law, that title insurance is "insurance." Commander Leasing Co. v. Transamerica Title Insurance Co., 477 F.2d 77, 83 (10th Cir. 1973); Crawford v. American Title Ins. Co., 518 F.2d 217, 219 (5th Cir.1975) (plaintiffs "conceding as they must, that title insurance is `insurance' within the meaning of the McCarran Act.").

For example, in Mitgang v. Western Title Ins. Co., 1974 WL 951, at *1, 1974 U.S. Dist. LEXIS 6258, at *3 (N.D.Cal. Oct. 16, 1974), the court, in arriving at the conclusion that title insurance was insurance, explained that "[a]lthough a person receiving title insurance gets a different sort of policy than one receiving life insurance, the same basic relationshipโ€”that of policy holder and insurerโ€”would seem to pertain." Similarly, while noting that "[t]itle insurance may be distinct from other insurance agency activities in some respects," the court in American Land Title Ass'n v. Board of Governors of Federal Reserve Sys., 892 F.2d 1059, 1064 (D.C.Cir. 1989), concluded that it constituted insurance for purposes of the McCarran-Ferguson Act.

The authority relied upon by Plaintiffs to support a contrary conclusion is not persuasive. In Ticor Title Ins. Co. v. FTC, 998 F.2d 1129, 1138 (3d Cir.1993), the court was not evaluating the practice of issuing title insurance, but was, instead, concerned with the practice of conducting title searches and examinations. The court found that these distinct and limited tasks did not involve the business of insurance. In so ruling, the court removed title insurance from its analysis, noting that "the title search and examination has nothing to do with the actual performance of the title insurance contract." Id. at 1136. Likewise, the court in United States v. Title Ins. Rating Bureau of Ariz., 700 F.2d 1247 (9th Cir. 1983), did not deal with the issuance of title insurance, but, instead, with the practice of title insurance companies providing escrow services to their customers. The Court reasoned that the performance of escrow services, which the court clearly noted was separate and apart from the issuance of title insurance, did not constitute the business of insurance because it did not have the effect of spreading risk among policy holders.^[19]Id. at 1251.

Plaintiffs argue that the entire business of selling title insurance is largely devoid of the pooling or spreading of risk. Because they view title insurance as nothing more than a limited warranty, Plaintiffs believe that its purpose is merely to protect against "`past activities that have caused defects in title discovered after the purchase;' in stark contrast to traditional insurance which spreads `risk against future loss for events yet to occur.'" (Plaintiffs' Objections at 26, citing Am. Compl. at ถ 39.)

Though Plaintiffs contend that the risk is only 3.4% of losses incurred on claims to premiums written, even they must admit that the issuance of title insurance has the effect of spreading some risk. (TR at 56.) Indeed, Plaintiffs concede that title insurance protects against mechanic's liens filed before the commitment letter is signed, and further covers any potential cloud on the title that should have been uncovered at the time the search was performed. (Id. at 8, 56.) See FTC v. Ticor Title, 504 U.S. 621, 625-26, 112 S. Ct. 2169, 119 L. Ed. 2d 410 (1992) (title insurance protects against the risk of loss for title problems that were not discovered in the title search, including those defects that could not be discovered);^[20]Schwartz, 374 F.Supp. at 574 ("title insurance companies are liable only for what they do not find, or if they become victims of false affidavits tendered to remove title objections.")

While Plaintiffs dismiss this risk as insignificant, the test in Pireno for the "business of insurance" does not quantify any particular amount of risk; it merely calls for a finding of some risk. See Pireno, 458 U.S. at 129, 102 S. Ct. 3002; see also SEC v. Variable Annuity Life Ins. Co. of America, 359 U.S. 65, 71, 79 S. Ct. 618, 3 L. Ed. 2d 640 (1959)^[21] ("the concept of `insurance' involves some investment risk-taking on the part of the company.") (emphasis added). That the title search has the effect of minimizing or obviating some or even most of the risk in advance of the issuance of the title insurance policy does not change the fact that some risk is spread among the policy holders.^[22]See Schwartz, 374 F.Supp. at 574 ("The investigation of the risk of loss prior to deciding if to insure that risk is clearly part of the business of insurance.")

It is clear that only some risk spreading is required under the Supreme Court's test. See SEC, 359 U.S. at 71, 79 S. Ct. 618. By Plaintiffs' own admissions, the issuance of title insurance satisfies that requirement. In the absence of clear and binding authority, the Court is not prepared to read additional requirements into the Supreme Court's test. The Court, therefore, finds that the issuance of title insurance satisfies the first prong under Pireno.

The Court is convinced that the setting of rates for title insurance premiums satisfies the Supreme Court's definition of the "business of insurance."^[23]See Royal Drug, 440 U.S. at 224, n. 32, 99 S. Ct. 1067 ("It is clear from the legislative history that the fixing of rates is the `business of insurance.'") Indeed, it would seem that this type of activity is precisely the kind that the McCarran-Ferguson Act meant to leave to the state legislatures to regulate. Moreover, it is clear that the State of Ohio has undertaken the task of regulating title insurance. The State has set forth a comprehensive regulatory plan governing title insurance, and has sought to subject the issuance of title insurance policies to the same scrutiny to which it subjects other forms of insurance. Though not determinative, it is significant that the regulations governing title insurance appear in the section of the Ohio Revised Code that deals with insurance, as opposed to the section dealing with property. See Mitgang, 1974 WL 951, at *2, 1974 U.S. Dist. LEXIS 6258, at *3 (the fact that the regulations covering title insurance were found in the Insurance Code of California was evidence that the State of California intended to treat title insurance as any other type of insurance); contra Brown, 546 F.3d at 360 (the fact that regulations governing worker's compensation appeared in the chapter of the Michigan Complied Laws dealing with labor matters, instead of the Michigan Insurance Code, was further evidence that worker's compensation benefits did not involve insurance).

Plaintiffs do not take issue with the Magistrate Judge's findings as to the second and third elements of the Pireno test. The issuance of title insurance by the insurer to the insured is clearly an "integral part of the policy relationship between the insurer and the insured." Pireno, 458 at 129. Further, the activity in question is certainly limited to entities within the insurance industry; namely, the insurer and the insured. Contra Royal Drug Co., 440 U.S. at 215-16, 99 S. Ct. 1067 (insurers' contracts with pharmacies whereby participating pharmacies would supply prescriptions at a set cost were not between insurers and insureds, but involved pharmacies and druggists who were wholly outside the insurance industry.) The Court, therefore, finds that Defendants' conduct constitutes the "business of insurance," and OVERRULES Plaintiffs' second objection relating to the McCarran-Ferguson Act.

Though not specifically objected to by Plaintiffs, the Court finds that the Magistrate Judge also properly concluded that Defendants' conduct was regulated by state law. 15 U.S.C. ง 1012(b). While Plaintiffs take issue with the level of review, there can be no doubt that the State of Ohio has subjected title insurance to substantial regulation. As a result, the Court concludes that the McCarran-Ferguson Act bars Plaintiffs from challenging the alleged conduct as a violation of the federal antitrust laws.^[24]

The Court is sympathetic to Plaintiffs' position that title insurance is different from other types of insurance, and understands that Plaintiffs believe that Ohio's statutory scheme for regulating title insurance may leave open the possibility for abuse. Nonetheless, Congress has determined that federal antitrust laws shall not serve to frustrate a state's regulation of the business of insurance. This Court must honor congressional intent and clear legal precedent that cautions against federal intervention into these state matters.

III. DEFENDANTS' ALLEGED CONDUCT IS PERMITTED BY THE OHIO INSURANCE CODE

Defendants argue that Plaintiffs' claims under the Valentine Act, a general antitrust statute, must be dismissed because the Ohio insurance code expressly and specifically permits the collaboration of which Plaintiffs complain. The Court agrees.

At oral argument, it became clear that the parties disputed the meaning of ง 3935.06, which, in relevant part, states:

Co-operation among rating bureaus, or among rating bureaus and insurers, in rate making or in other matters covered by sections 3935.01 to 3935.17, inclusive, of the Revised Code, is authorized, provided the filings resulting from such co-operation are subject to all such sections which are applicable to filings generally. The superintendent may review such co-operative activities and practices and if, after a hearing, he finds that any such activity or practice is unfair, unreasonable, or otherwise inconsistent with such sections, he may issue a written order specifying in what respects such activity or practice is unfair, unreasonable, or otherwise inconsistent, and requiring the discontinuance of such activity or practice.

OHIO REV.CODE ง 3935.06. Defendants assert that even if collaboration to set uniform prices of title insurance would otherwise be illegal under the Valentine Act, such collaboration is specifically permitted by the Ohio insurance code section cited above. Plaintiffs insist that this section does not permit "conduct prohibited by the Valentine Act." (TR at 95.)

In List v. Burley Tobacco Growers' Co-op. Ass'n, 114 Ohio St. 361, 151 N.E. 471 (1926), the Ohio Supreme Court held, "[t]hose acts being declared to be legal by the Ohio Legislature must necessarily constitute a valid exception to the Valentine Act." Id. at 387, 151 N.E. 471. In List, the court determined that a 1920 Ohio law "makes provision for co-operative associations in the marketing of agricultural products" and, after determining the placement of agricultural interests in "a special class" as to exempt them from antitrust scrutiny was not unreasonable so as to violate the equal protection clause of the fourteenth amendment, held that the specific law permitting cooperative conduct excepted the conduct from the scrutiny of the Valentine Act. Id. at 394, 151 N.E. 471 (Jones, J., concurring) ("I concur in the judgment solely because the state co-operative statutes permit such agreement, and to that extent render the Ohio Valentine Act ineffective as to persons coming within the provisions of the co-operative laws.").

Relevant here, under the Valentine Act, a "trust" is defined as a "combination of capital, skill, or acts by two or more persons for any of the following purposes: [...](4) To fix at a standard or figure, whereby its price to the public or consumer is in any manner controlled or established, an article or commodity of merchandise, produce, or commerce intended for sale, barter, use, or consumption in this state; [...]." OHIO REV.CODE ง 1331.01(B). Plaintiffs allege that "[d]efendants collectively entered into a trust for the purpose of fixing prices in violation of the Ohio Valentine Act." (Doc. No. 36 at ถ 66.) Assuming Plaintiffs' allegations as true, the Court must answer the following question: is Title 39 of the Ohio insurance code intended to except the cooperative action complained of by Plaintiffs from state antitrust scrutiny under the Valentine Act? The Court answers this question in the affirmative.

Answering this question requires this Court to construe the meaning of the section of the statute which states, "[c]o-operation among rating bureaus, or among rating bureaus and insurers, in rate making or in other matters or in other matters covered by sections 3935.01 to 3935.17, inclusive, of the Revised Code, is authorized [...]." ง 3935.06. "As with any other instance in which we must interpret a state law, `When there is no state [case] law construing a state statute, [we] must predict how the state's highest court would interpret the statute.'" United States v. Simpson, 520 F.3d 531, 535 (6th Cir.2008) (citing Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir.1999)). In Ohio, "[t]he essential goal of statutory construction is to give effect to the intent of the General Assembly." Stevens v. Ackman, 91 Ohio St. 3d 182, 193, 743 N.E.2d 901 (2001). "The intent may be inferred from the particular wording the General Assembly has chosen to set forth the substantive terms of a statute." Id. "Intent may also be revealed in the procedural passage of the legislative act under consideration, when that body passes legislation that enacts, amends, or repeals a statute." Id. "Where the lawmaking body declares its own intention in the enactment of a particular law, or defines the sense of the words employed, it is within the exercise of its legislative power, and its own construction of its language should be followed." State ex rel. Moore Oil Co. v. Dauben, 99 Ohio St. 406, 412-413, 124 N.E. 232 (1919).

Title 39 of the Ohio revised code was enacted on October 1, 1953, when the Ohio general code was replaced by the Ohio revised code. Prior to the 1953 recodification, Ohio's insurance scheme fell under section 9592 of the Ohio general code. Section 9592 contained, within the statute itself, a declaration of the General Assembly's "own intention in the enactment of [the] particular law [...]." Specifically, the General Assembly stated: "The purpose of this act [G.C. งง 9592-1 to 9592-18] is to promote the public welfare by regulating insurance rates to the end they shall not be excessive, inadequate or discriminatory, and to authorize and regulate cooperative action among insurers in rate making and other matters within the scope of this act." OHIO GEN. CODE ง 9592-1. (Eff. Dec. 31, 1947) (emphasis added). This statement of purpose was not in the recodified statutes. In adopting the Ohio revised code, however, the General Assembly specifically stated in this section that it did "not" intend "to change the law as heretofore expressed by the section or sections of the General Code." State v. Kotapish, 171 Ohio St. 349, 351, 171 N.E.2d 505 (1960) (decided under former analogous section); see also Ohio Bank & Sav. Co. v. Tri-County Nat'l Bank, 22 Ohio Misc. 270, 411 F.2d 801, 804 (6th Cir.1969) (section 1.24 (former analogous section) "makes it clear that a substantive change was not intended").

Thus, the very conduct complained of by the Plaintiffsโ€”cooperative action among insurers to set the rates of title insuranceโ€”was specifically contemplated and authorized by the Ohio General Assembly when it enacted the original statute, which was later recodified as it is now constituted. Additionally, List v. Burley teaches that a later-in-time law specifically permitting cooperative conduct excepts that conduct from the scrutiny of the general provisions of the Valentine Act.

The Ohio Revised Code's rules of construction also compel this conclusion. Price fixing is a violation of the Valentine Act, which was enacted in 1898. See Rayess v. Lane Drug Co., 138 Ohio St. 401, 405, 35 N.E.2d 447 (1941); OHIO REV.CODE ANN. ง 1331.01(B)(4). The Valentine Act is a statute of general application, and its price fixing provision broadly encompasses any "article or commodity of merchandise, produce, or commerce intended for sale, barter, use or consumption in this state." Id. As discussed in the preceding paragraphs, however, the Ohio insurance statutory scheme, enacted in 1947, specifically permits collaboration between insurers to fix rates of insurance. The two statutes are plainly in conflict. Section 1.51 of the Revised Code informs this exact situation.^[25] "OHIO REV.CODE ANN. ง 1.51 provides that if general and special provisions conflict, the specific provision takes precedent as an exception to the general provision unless the legislature provides otherwise." Bucheit Int'l v. Ameritrust Co. Nat'l Ass'n, No. 95-4267, 1997 WL 21196, 1997 U.S.App. LEXIS 1026 at *11 (6th Cir. Jan. 17, 1997). Here, the "specific provision" of the insurance code "takes precedent as an exception to the general provision" on price fixing as contained in the Valentine Act.

This conclusion is also supported by recalling the context under which the insurance code was enacted. At the time of the 1953 recodification, section 9592 had existed in its current form since December 31, 1947. See Home Ins. Co. v. Albers Super Markets, Inc., 103 N.E.2d 17 (Ohio Ct. App.1950) (discussing the prior provisions of section 9592 and noting that those sections were repealed effective Dec. 31, 1947). Prior to 1944, the United States Supreme Court had consistently held that the business of insurance was not commerce. See, e.g., Paul v. Virginia, 75 U.S. (8 Wall.) 168, 183, 19 L. Ed. 357 (1869) ("Issuing a policy of insurance is not a transaction of commerce."). Until 1944, in fact, the business of insurance, in consequence, was largely immune from federal regulation. See St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 539, 98 S. Ct. 2923, 57 L. Ed. 2d 932 (1978) ("The States enjoyed a virtually exclusive domain over the insurance industry."). Indeed, commentators have noted that state regulatory policy viewed monopolistic insurance rate-fixing prior to 1944 with indifference. Joel B. Dirlam and Irwin M. Stelzer, A Case Study in the Workability of Regulated Competition, 107 U. PA. L. REV. 199, 213 (1958-1959). Specific to Ohio, there is evidence that courts did not consider the collaborative actions of insurers to come within the prohibitions of the Valentine Act:

There may be good reasons why combinations by insurance agents for the purpose of increasing rates of insurance should be prohibited, but that will not justify a court in holding that such combinations are prohibited by a law which prohibits combinations with reference to articles which may be produced, transported and used and which are the subject of barter and sale.

If it is thought wise to extend the provisions of the antitrust law of Ohio so as to include the business of insurance, labor unions and everything about which a person may be engaged, the legislature can very easily use language which will clearly express that intention, but it is sufficient for the determination of this case to say that such intention does not clearly appear from a consideration of the present law.

State v. Bovee, 17 Ohio Dec. 663, 671 (Ohio C.P.1907) (holding business of fire insurance not within the terms "trade," "commerce," or "commodity" as used in the Valentine Act).

In United States v. South-Eastern Underwriters Assn., 322 U.S. 533, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944), however, the Supreme Court held for the first time that an insurance company doing business across state lines engages in interstate commerce, and that the Sherman Act therefore applied to "business of insurance." Id. at 553, 553-562, 64 S. Ct. 1162. ("No commercial enterprise of any kind which conducts its activities across state lines has been held to be wholly beyond the regulatory power of Congress under the Commerce Clause. We cannot make an exception of the business of insurance."). South-Eastern "was vigorously protested in the insurance field. The insurance companies, relying upon the court's previous rulings, had engaged in practices which were prohibited under the federal anti-trust laws but which were permitted under the laws and regulations of the various states." National Casualty Co. v. Federal Trade Com., 245 F.2d 883, 885 (6th Cir.1957), aff'd FTC v. National Casualty Co., 357 U.S. 560, 78 S. Ct. 1260, 2 L. Ed. 2d 1540 (1958).

Both Houses of Congress characterized South-Eastern as "precedent-smashing" and quickly worked to enact a legislative reversal of the effects of the decision. Perry v. Fidelity Union Life Ins. Co., 606 F.2d 468, 473 (5th Cir.Ala.1979) (citing H.R.Rep. No. 143, 79th Cong., 2d Sess. (1945), Reprinted in 1945 U.S.Code Cong. Serv. 670, 671; S.Rep. No. 20, 79th Cong., 1st Sess. 2 (1945)). Out of this concern "that [South-Eastern Underwriters] might undermine state efforts to regulate insurance, Congress in 1945 enacted the McCarran-Ferguson Act." Humana Inc. v. Forsyth, 525 U.S. 299, 306, 119 S. Ct. 710, 142 L. Ed. 2d 753 (1999). As discussed in Royal Drug, the legislative history of the McCarran Ferguson Act reflects "[t]he consistent theme of [...] a primary concern that cooperative ratemaking would be protected from the antitrust laws." Royal Drug, 440 U.S. at 223, 99 S. Ct. 1067 (citing Senator Ferguson's floor debate remarks: "What we saw as wrong was the fixing of rates without statutory authority in the States; but we believe that State rights should permit a State to say that it believes in a rating bureau."). As discussed above, the McCarran-Ferguson Act exempted the "business of insurance" from federal antitrust scrutiny under the Sherman Act, except to the extent that such business was not regulated by state law. But McCarran-Ferguson also provided for a moratorium, until January 1, 1948,^[26] on any enforcement of the Sherman Act to "the business of insurance or acts in the conduct thereof." 15 U.S.C. ง 1013.

"The purpose of the moratorium was to allow the States three years to take steps to regulate the business of insurance." Royal Drug, 440 U.S. at 220 n. 22, 99 S. Ct. 1067. During the moratorium, the majority of state legislatures, including Ohio's, enacted insurance regulatory legislation, modeled along the lines of a model bill drafted by the National Association of Insurance Commissioners. See George K. Gardner, Insurance and the Anti-Trust Laws, 61 HARV. L. REV. 246, 247 (1948). These laws "were intended to provide that degree of regulation of the insurance business which would avoid the Scylla of prosecution under the Sherman Act and the Charbydis of oppressive state regulation." See Dirlam & Stelzer, 96 U. PA. L. REV. at 224-25. The Ohio statutory scheme was enacted to provide that degree of required regulation to alleviate federal concern about the fixing of rates without statutory authority.

Relevant to Plaintiffs' state law claims here, the Ohio Supreme Court has repeatedly noted that the Valentine Act was patterned after the Sherman Act, and has "consistently interpreted the Valentine Act in accordance with federal judicial construction of the federal antitrust lawsโ€” without regard to when the federal court announced the case law." Johnson v. Microsoft Corp., 106 Ohio St. 3d 278, 284, 834 N.E.2d 791 (2005) (collecting cases).

As discussed above, the Ohio statutory scheme was specifically intended to authorize cooperative conduct among insurers to set rates and to regulate such behavior as to place it beyond the reach of the Sherman Act. In light of the construction and interpretation given to the Valentine Act by the Ohio Supreme Court, which tracks the federal statute, then, like the federal scheme, the Ohio statutory scheme places this cooperative conduct beyond the reach of the Valentine Act. To hold that the Ohio General Assembly intended to make collaboration by insurers to set rates illegal for purposes of the Valentine Act when enacting a statutory scheme specifically permitting such conduct would be an anomalous result.

Moreover, and contrary to Plaintiffs' insinuations, the Ohio statutory scheme does not merely "condone price fixing." (Doc. No. 77 at pp. 8-9.) See Allstate Ins. Co. v. Lanier, 242 F. Supp. 73, 88 (E.D.N.C.1965) (asking "[i]s the State merely lending the color of authority to what would otherwise be unlawful conduct under the Sherman Act? This the State cannot do," and then examining state law that required insurer membership in a rating bureau, and concluding that sufficient safeguards, including the right to file for deviations and the public protest, existed to allow for competition). While the Ohio statutory scheme does not provide for unfettered collaboration between insurers, it does incorporate several procedural safeguards designed to promote competition.^[27] First, in the sentences immediately following ง 3935.06's authorization of "[c]o-operation among rating bureaus, and among rating bureaus and insurers," the superintendent is given the power to "review such co-operative activities and practices and if, after a hearing, he finds that any such activity or practice is unfair, unreasonable, or otherwise inconsistent with such sections, he may issue a written order [...] requiring the discontinuance of such activity or practice." Id. Moreover, the public has the right to complain to the superintendent: "[a]ny person or organization aggrieved with respect to any filing that is in effect may make written application to the superintendent for a hearing thereon [...]." ง 3935.05(D).

Next, insurers are not required to become a member of, or a subscriber to, any rating bureau. ง 3935.04(B). Beyond merely not requiring membership, however, the statute allows for competition by allowing non-members to subscribe to the rating services provided by the rating bureaus, which "shall furnish its rating services without discrimination to its members and subscribers." ง 3935.06 (emphasis added). Finally, the statutory scheme provides that any insurer who has filed a rate through a rating bureau "may make written application to file a deviation from the class rates, schedules, rating plans, or rules respecting any kind of insurance [...]." ง 3935.07. Indeed, the superintendent "shall issue an order permitting the deviation if he finds it is justified [under the code]" and shall only deny such application for a deviation if "he finds that the resulting premiums would be excessive, inadequate, or unfairly discriminatory." ง 3935.07.

Note that the Ohio insurance code is not necessarily intended to encourage competition. Indeed, the introductory statute states that the code does "not prohibit or encourage reasonable competition, or prohibit or encourage uniformity in insurance rates [...]." OHIO REV.CODE ง 3935.01; see also OHIO GEN. CODE ง 9592-1 (substantially same). But, as discussed in the preceding paragraph, the scheme allows competition sufficient to exempt Defendants' alleged behavior from scrutiny under the Sherman Act, and therefore by analogy, to the Valentine Act. Plaintiffs insist that that more competition by title insurance companies "is not only possible, but [would] produce the substantial and predictable benefits to consumers one would expect." (Doc. No. 115-1 at 3-4 (citing lower title insurance prices in Iowa).) But "the question before [this Court] is not whether the Ohio method of regulation compares favorably with the regulations of other states, or whether it is an ideal manner in which to regulate the business of insurance." Ohio AFL-CIO, 451 F.2d at 1183. Plaintiffs may well be correct that a different statutory scheme would ultimately benefit Ohioans. But this is a determination for the Ohio General Assembly, not this Court.

Because the Court arrives at the same conclusion as the Magistrate Judge as to the viability of Plaintiffs' state antitrust claim, but via different analysis, the Court ADOPTS the Magistrate Judge's conclusion but REJECTS her analysis. Defendants' motion to dismiss Plaintiffs' claims under the Valentine Act is GRANTED.

IV. THE NATURE OF THE DISMISSAL

Defendants also object to the Magistrate Judge's Report to the extent that it recommends that the Consolidated Complaint be dismissed without prejudice. After determining that Plaintiffs' claims were barred by the filed rate doctrine and/or the McCarran-Ferguson Act, the Magistrate Judge suggested that the dismissal be without prejudice to afford Plaintiffs the opportunity to "amend the Complaint to meet the Twombly/Iqbal standard, if possible." (Report at 56.) Defendants insist that this result is inconsistent with the Magistrate Judge's determination that Defendants' conduct is exempt from antitrust scrutiny.

"The dismissal of a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is a `judgment on the merits,' and is therefore done with prejudice." Pratt v. Ventas, Inc., 365 F.3d 514, 522 (6th Cir. 2004) (citing Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S. Ct. 2424, 69 L. Ed. 2d 103 (1981)). While Plaintiffs acknowledge that the Magistrate Judge found that, as a matter of law, the Sherman Act claim was barred by the filed rate doctrine, they underscore the fact that she left open the possibility that a federal claim for injunctive relief may still exist. Plaintiffs forget, however, that the Magistrate Judge also found, and this Court agrees, that the McCarran-Ferguson Act is a complete bar to Plaintiffs' federal antitrust claim. See, Ohio AFL-CIO, 451 F.2d at 1185 (in affirming the dismissal of a federal antitrust action seeking damages and injunctive relief, the Sixth Circuit observed that: "Concluding, as we do, that the complaint failed to state a claim on which relief could be granted, it would not be proper to remand the action to the district court [...].") See, e.g., Commander Leasing Co., 477 F.2d at 86 (dismissal of federal antitrust action seeking damages and injunctive relief as barred by the McCarran-Ferguson Act). It would, therefore, be an exercise in futility to permit Plaintiffs to further amend. See Sinay v. The Lamson & Sessions Co., 948 F.2d 1037, 1041 (6th Cir. 1991). Defendants' objection is, therefore, SUSTAINED, the Court REJECTS the portion of the Report that recommends a dismissal of the federal antitrust claim without prejudice, and the Sherman Act claim is DISMISSED with prejudice.^[28]

The same logic holds true for Plaintiffs' Valentine Act claim. The focal point of Plaintiffs' Consolidated Complaint is the challenge to the manner in which proposed title insurance rates are brought before the Ohio Department of Insurance. Yet, as this Court has determined, Defendants' activities in arriving at these proposed rates are not unlawful and are permitted under the governing statutes. In fact, this collaborative rate-making was contemplated when the Ohio General Assembly put this regulatory framework into place. Because the conduct which forms the basis of Plaintiffs' case is not unlawful, Plaintiffs could not re-plead in such a way that would state a cause of action under Ohio law. Any such attempt would be futile, and will, for that reason, not be permitted. Plaintiffs' Valentine Act claim will also be DISMISSED with prejudice, and the portion of the Report that recommends dismissal of this claim without prejudice is REJECTED.

CONCLUSION

For all of the reasons set forth in this Memorandum Opinion, the Magistrate Judge's Report and Recommendation (Doc. No. 102) is ADOPTED, in part, and REJECTED, in part. Both of the claims in the Consolidated Complaint shall be DISMISSED, with prejudice, against all Defendants. Defendants' Joint Motion to Dismiss for failure to state a cause of action (Doc. No. 43) is GRANTED, and Defendant Old Republic's Motion to Dismiss (Doc. No. 41) is also GRANTED. Defendant Stewart's Motion to Dismiss (Doc. No. 42) is DENIED as moot. The Clerk is directed to close the following cases: Case No. 1:08CV677, 1:08CV678, 1:08CV741, 4:08CV750, 1:08CV803, 1:08CV1021, 5:08CV1289, and 1:08CV1836.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

BENITA Y. PEARSON, United States Magistrate Judge.

TABLE OF CONTENTS

                                                                                Page
  I. Introduction .............................................................. 879
 II. Summary of Findings and Recommendations ................................... 880
III. Factual and Procedural Background ......................................... 881

     A. The Parties ............................................................ 881
     B. Plaintiffs' Allegations ................................................ 882
     C. Defendants' Motions to Dismiss ......................................... 883
 IV. Standard of Review ........................................................ 883
     A. Rule 12(b)(6) .......................................................... 883
     B. Rule 12(b)(1) .......................................................... 884
     C. Use of Extrinsic Evidence .............................................. 885
  V. Law and Analysis .......................................................... 886
     A. The Filed Rate Doctrine ................................................ 886
        1. The Doctrine and its Purpose ........................................ 886
        2. Application of the Doctrine ......................................... 887
           a. The Filed Rate Doctrine Does Not Provide Full Immunity ........... 888
           b. The Filed Rate Doctrine as Applied to the Insurance Industry ..... 888
        3. Sherman Actโ€”Federal Antitrust Challenge ....................... 889
        4. Valentine Actโ€”State Antitrust Challenge ....................... 890
        5. Plaintiffs' Arguments against Application of the Filed Rate
             Doctrine .......................................................... 892
           a. Meaningful or Comprehensive Review ............................... 893
           b. Lack of an Active Rate Approval Process .......................... 895
           c. Fraud Exception .................................................. 895
           d. Lack of Compliance with Ohio's Laws .............................. 897
              1. Improper Filing of Rates ...................................... 897
           e. Application to Injunctive Relief ................................. 899
     B. The McCarran-Ferguson Act Exempts Plaintiffs' Sherman Act Claim
          from Scrutiny ........................................................ 900
        1. The "Business of Insurance" ......................................... 902
        2. Regulated by State Law .............................................. 904
        3. Act of Boycott, Coercion, or Intimidation ........................... 905
        4. Applying the McCarran-Ferguson Anti-trust Exemption ................. 905
     C. Complaint Fails to State a Claim that Corporate Parent Defendants
          Engaged in Conspiratorial Behavior ................................... 905
 VI. Conclusion and Recommendation .............................................. 909

I. Introduction

This matter is before the undersigned Magistrate Judge pursuant to a referral from District Court Judge David D. Dowd, Jr. under 28 U.S.C. ง 636(b)(1) and Local Rule 72.1. ECF No. 84. Before the Court are Plaintiffs' Consolidated Amended Complaint, ECF No. 36 (the "Complaint"), Defendants' Motions to Dismiss the Amended Complaint for failure to state a claim and lack of personal jurisdiction and venue (ECF No. 40, ECF No. 41, and ECF No. 43); Plaintiffs' Oppositions to Defendants' Motions to Dismiss (ECF No. 64 and ECF No. 77); and Defendants' Reply Memoranda (ECF No. 65, ECF No. 66 and ECF No. 79). Both sides have also submitted supplemental law and/or responses thereto. See ECF Nos. 96 through 101.

The Complaint presents a putative class action lawsuit that challenges the propriety of state-regulated title insurance rates (i.e. price) under both federal and state antitrust laws. Summarily, Plaintiffs allege that Defendants illegally conspired to suppress price competition, artificially raise and maintain title insurance prices and deprive purchasers of title insurance of the benefit of free and open competition. ECF No. 36 at ถ 67. Count One alleges violation of the Sherman Antitrust Act, a federal antitrust statute. Count Two alleges violation of the Valentine Act, Ohio's antitrust statute. Both Counts One and Two rely upon the same facts. Similarly, the Prayer for Relief is the same for both counts; it seeks: (1) declaratory judgments that the alleged conspiratorial behavior of the defendants and their coconspirators be adjudged "an unreasonable restraint of trade" in violation of both the Sherman and Valentine Acts; (2) treble damages; (3) injunctive relief; and (4) any "further relief as may be necessary and appropriate." ECF No. 36 at 21.

II. Summary of Findings and Recommendations

All Defendants jointly seek dismissal of the Complaint in its entirety based upon Plaintiffs' failure to state a claim due to the Filed Rate Doctrine, pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ. P." or Rule)12(b)(6), and, alternatively, lack of subject matter jurisdiction due to the McCarran-Ferguson Act, 15 U.S.C. ง 1011, et seq., (the "Act"), pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 43. Additionally, one corporate parent defendant seeks dismissal, pursuant to Fed.R.Civ.P.12(b)(6), due to Plaintiffs' failure to allege that the parent agreed or conspired to commit anti-competitive behavior. ECF No. 40. That same corporate parent defendant and one other also seek dismissal due to lack of personal jurisdiction and improper venue, pursuant to Fed.R.Civ.P 12(b)(2) and (3). ECF Nos. 40 & 41. Plaintiffs argue that neither the filed rate doctrine nor McCarran-Ferguson Act bar their claims that Defendants violated the Sherman Act, 15 U.S.C. ง 1, and Ohio's Valentine Act, O.R.C. ง 1331.01 et seq., Counts One and Two, respectively, that venue is proper and that the Court has personal jurisdiction.

Defendants may possibly have placed more weight on the Filed Rate Doctrine and the McCarran-Ferguson Act than each can each bear. Neither independently hefts enough weight to resolve the entire matter. The Filed Rate Doctrine bars monetary damages for rate-related claims but it does not bar non-rate-related relief such as injunctive or, possibly, declaratory relief. Similarly limited, the McCarran-Ferguson Act bars federal but not state antitrust claims. Thus, the McCarran-Ferguson Act would not eliminate the state antitrust claim, Count Two. Because the state law claim is a class-action, albeit putative at this stage, the Court has diversity jurisdiction, pursuant to 28 U.S.C. ง 1332(d)(2).^[1] Therefore, the state antitrust claim would survive on the federal docket even with the dismissal of the Sherman Act claim in Count One.

A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) raises the fundamental question whether the federal district court has subject matter jurisdiction over the action before it. "It is universally recognized by the federal courts, the objection presented by a motion under Rule 12(b)(1) challenging the court's subject matter jurisdiction is that the district judge had no authority or competence to hear and decide the case before it." Wright & Miller, 5B Federal Practice and Procedure ง 1350 at 64 (2004). Typically, the Court is bound to consider the Rule 12(b)(1) motion first, since the Rule 12(b)(6) challenge becomes moot if the Court lacks subject matter jurisdiction. See Bell v. Hood, 327 U.S. 678, 682, 66 S. Ct. 773, 90 L. Ed. 939 (1946) (motion to dismiss for failure to state a cause of action may be decided only after establishing subject matter jurisdiction, since determination of the validity of the claim is, in itself, an exercise of jurisdiction); Wright & Miller, 5 Federal Practice and Procedure ง 1350 at 548 (1969).

Although entitled a 12(b)(1) challenge to jurisdiction, because the McCarran-Ferguson Act, like the filed rate doctrine, raises a defensive rather than a jurisdictional bar to Plaintiffs' recovery, the undersigned believes the 12(b)(1) motion was mischaracterized and should have been labeled a 12(b)(6) motion.^[2] Additionally, because Defendants intended a facial rather than factual 12(b)(1) attack, the ultimate effect of this distinction is minimal.^[3] It does, however, eliminate concerns regarding a lack of subject matter jurisdiction.

With these matters in mind, the Filed Rate Doctrine analysis is presented first because the Filed Rate Doctrine, unlike the McCarran-Ferguson Act, potentially resolves the entire matter.^[4] Additionally, the order of presentation was informed by the conclusion that Defendants should prevail in dismissing each count, to the extent legally permissible.

Thus, for reasons provided in greater detail below, the undersigned recommends dismissal without prejudice of both counts in the Complaint. A "without prejudice" dismissal would permit Plaintiffs an opportunity to (once again) modify the Complaint in order to present a prayer for nonrate-related injunctive or declaratory relief that might survive the Filed Rate Doctrine relative to all Defendants other than the corporate parent defendants.^[5] Regarding, the corporate parent defendants, a without prejudice dismissal would permit the Plaintiffs to amend the Complaint to meet the Twombly/Iqbal standard, if possible.

III. Factual and Procedural Background

A. The Parties

Plaintiffs Jordan Katz, Craig Mintz, Sean Nightengale, Carol A. Rhamy, Micah Watts, Katherine A. Wirkus, Gaby and Gina Hasrouni, and Adam C. Falkner filed this action on behalf of themselves and others similarly situated.^[6] Defendants are comprised of three types: title insurance companies, their five corporate parents and the sole entity with which the title insurance companies submit their title insurance rates, the Ohio Title Insurance Rating Bureau, Inc ("OTIRB").^[7]

B. Plaintiffs' Allegations

Plaintiffs allege that Defendants collectively formed and are members of the OTIRB.^[8] ECF No. 36 at ถ 5. Through the OTIRB, Defendants submit title insurance rates to the Ohio Department of Insurance ("ODI") for approval. ECF No. 36 at 2 ถ 5. Plaintiffs claim these rates "become effective if not disapproved by the Department of Insurance withing thirty days." ECF No. 36 at 2 ถ 5. Plaintiffs also claim that ODI cannot regulate the reasonableness of these submitted rates because the "rates are based principally on undisclosed costs" that consist of "kickbacks, referral fees and other expenses" for the purpose of generating business referrals from individuals and entities that are part of the "home purchase scenario." ECF No. 36 at 3 ถ 6.

The Complaint alleges that "Plaintiffs and Class members purchased title insurance at artificially maintained, non-competitive prices established by the actions of defendants in connection with restraints of trade" and "paid inflated prices for title insurance." ECF No. 36 at 10-11 ถ 29. Plaintiffs allege that "defendants, and their co-conspirators engaged in contract, combination and conspiracy in unreasonable restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act." ECF No. 36 at 18 ถ 57.

Essentially, Plaintiffs allege the title insurance rate filed with the Ohio Department of Insurance is the result of a horizontal price-fixing agreement and is therefore violative of the Sherman Act and Ohio's antitrust law known as the Valentine Act. Plaintiffs allege injury because they "paid more for [title insurance] than [they] would have ... paid in the absence of said antitrust violations." ECF No. 36 at 20 ถ 68. Plaintiffs seek a presently undetermined amount of treble damages and declaratory and injunctive relief against all Defendants. ECF No. 36 at 20 ถ 68 & 21.

C. Defendants' Motions to Dismiss

Stewart Information Services Corporation seeks dismissal for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2). See ECF No. 40. Old Republic International Corporation seeks dismissal, pursuant to Federal Rules of Civil Procedure 12(b)(2), (3), and (6). See ECF No. 41. All Defendants jointly seek dismissal with prejudice, pursuant to Federal Rules of Civil Procedure 12(b)(1) & (6).^[9] ECF No. 43.

Defendants' reply in support, ECF No. 79, filed on March 16, 2009, asserts that Plaintiffs' attempts to create exceptions to the filed rate doctrine fail as they do not exist pursuant to case law. Defendants also assert that their rate making activities are regulated by state law and that the fixing of rates is the business of insurance.

The parties appeared before the undersigned for oral argument. See ECF No. 95 (Transcript). Subsequently, the parties also provided the Court with supplemental authority. See ECF Nos. 96 through 101. Consequently, the Court renders this Report and Recommendation having had the benefit of the parties' additional viewpoints.

IV. Standard of Review

Defendants' joint motion seeks the dismissal of Plaintiffs' claims pursuant to Rule 12(b)(6), due to the filed rate doctrine, and 12(b)(1), due to the McCarran-Ferguson Act. See ECF No. 43. Old Republic International Corporation ("ORO") also seeks dismissal, pursuant to Federal Rules of Civil Procedure 12(b)(6) but on different grounds, as discussed in Section C below.^[10]See ECF No. 41.

Although the joint motion invokes both Rules 12(b)(6) and 12(b)(1), neither party distinguishes or describes the nature and purpose of either rule, the procedure for dismissal under either rule, or the applicable standards of review. Given that the standard of review is an essential component of a judicial opinion, the Court must give due attention to the applicable standard of review.

A. Rule 12(b)(6)

According to Bell Atl. Corp. v. Twombly, in order to survive a Rule 12 motion to dismiss for failure to state a claim, "`grounds' of [plaintiff's] `entitle[ment] to relief,' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action."^[11]Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, et al., ___ U.S. ___, 129 S. Ct. 1937, 1950, 173 L. Ed. 2d 868 (2009); Fed. R.Civ.P. 12(b)(6). That is, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555, 127 S. Ct. 1955 (internal citation omitted); see Assoc. of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (recognizing that the Supreme Court "disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)").

Iqbal made clear that Twombly was based upon "[t]wo working principles." Iqbal, 129 S.Ct. at 1949. First, "[a]lthough for the purposes of a motion to dismiss[, courts] must take all of the factual allegations in the complaint as true, courts `are not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 129 S.Ct. at 1949-50 (citing Twombly, 550 U.S. at 555, 127 S. Ct. 1955). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950 (internal citations omitted). Per Twombly, claims set forth in a complaint must be plausible, rather than conceivable. Twombly, 550 U.S. at 570, 127 S. Ct. 1955. "[W]here well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has allegedโ€”but it has not `show[n]'โ€”`that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1950 (citing Fed.R.Civ.P. 8(a)(2)). However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

In the realm of antitrust litigation, "[a]sking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." Twombly, 550 U.S. at 556, 127 S. Ct. 1955. In the context of a ง 1 Sherman Antitrust claim, "such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made." Id.

B. Rule 12(b)(1)^[12]

A Rule 12(b)(1) motion to dismiss an action for lack of subject matter jurisdiction may be premised on a facial attack or a factual attack. See Abdelkhaleq v. Precision Door of Akron, No. 5:07cv3585, 2008 WL 3980339, at *2 (N.D.Ohio Aug. 21, 2008) (O'Malley, J.). A facial attack tests the adequacy of the complaint, Scheuer v. Rhodes, 416 U.S. 232, 235-37, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012, 82 L. Ed. 2d 139 (1984), while a factual attack evaluates the actual existence of subject matter jurisdiction, Ohio Hosp. Ass'n v. Shalala, 978 F. Supp. 735, 739 (N.D.Ohio 1997). The importance of this distinction has to do with the nature of the Court's consideration of the facts and allegations presented in connection with the Rule 12(b)(1) motion. If the motion presents a facial attack, the Court must take all of the material allegations in the complaint as true and construe them in the light most favorable to the non-moving party. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994) cert. denied. 513 U.S. 868, 115 S. Ct. 188, 130 L. Ed. 2d 121 (1994) (citing Scheuer, 416 U.S. at 235-37, 94 S. Ct. 1683). In contrast, if the motion presents a factual attack, then the Court is free to consider extrinsic evidence and may weigh the evidence of its own jurisdiction without affording the plaintiff the presumption of truthfulness. Abdelkhaleq, 2008 WL 3980339 at *2 (citing Ritchie, 15 F.3d at 598); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986); see also Ernst v. Rising, 427 F.3d 351, 372 (6th Cir.2005). "[W]here subject matter jurisdiction is challenged under Rule 12(b)(1)... the plaintiff has the burden of proving jurisdiction in order to survive the motion." Rogers v. Stratton Indus., Inc., 798 F.2d at 915.

Based upon review of Defendants' joint motion to dismiss, the undersigned finds and defense counsel has agreed that the motion, ECF No. 43, presents a facial attack via Rule 12(b)(1).^[13] When reviewing a facial attack, a district court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. See Gentek Building Products, Inc. v. Sherwin-Williams, 491 F.3d 320, 330 (6th Cir.2007).

C. Use of Extrinsic Evidence

Plaintiffs were permitted limited discovery before responding to Defendants' joint motion. ECF No. 52. As part of that discovery, Plaintiffs' conducted a Rule 30(b)(6) deposition of an employee of the Ohio Department of Insurance. Plaintiffs cite the testimony of that deponent, Maureen Motter, in opposition to both prongs of Defendants' joint motion. See e.g., ECF No. 77 at 11-13 (filed rate doctrine) & 33-34 (McCarran-Ferguson Act). Defendants correctly respond that the deposition is extrinsic evidence of which the Court cannot take judicial notice and, therefore, cannot be considered in ruling upon the Rule 12(b)(6) motion without first converting that motion to a Rule 56 motion for summary judgment.^[14]See ECF No. 79 at 12 n. 1 (acknowledging that the Court can consider Exhibits 1, 3, and 4 as they are public records, unlike the Motter deposition). As Defendants acknowledge the 12(b)(1) motion mounts a facial attack, the overall analysis is limited to the face of the Complaint and the few public records integral to the Complaint of which the Court can take judicial notice.

In sum, the undersigned will consider all allegations in the Complaint as true and limit its use of materials outside of the pleadings to those matters which are of public record.^[15]

V. Law and Analysis

A. The Filed Rate Doctrine

Defendants assert that the filed rate doctrine "bars antitrust claims that are based on an allegation that rates filed with a regulatory agency are too high." ECF No. 43-2 at 6. Defendants assert that the filed rate doctrine bars both Plaintiffs' federal and state antitrust claims.

1. The Doctrine and its Purpose

The filed rate doctrine, also known as the filed tariff doctrine, is a principle originating in federal law that recognizes the unsuitability of a court in determining "reasonable" rates, giving deference to regulatory agencies that have been designed by legislatures for the specific purpose of setting uniform rates. According to this doctrine, judicial intervention cannot be used to second-guess and challenge rates that have been approved by a regulatory agency with the requisite authority to approve such rates. See Holmes, Antitrust Law Handbook (ง 8:6 Dec. 2008). "The filed rate doctrine reflects judicial thinking that application of antitrust standards could undermine and clash with the applicable agency's regulatory scheme and decisions." Id. The Supreme Court of the United States first applied the doctrine to an antitrust matter in Keogh v. Chicago & Northwestern Railway, Co., 260 U.S. 156, 43 S. Ct. 47, 67 L. Ed. 183 (1922).^[16] In Keogh, the Court affirmed the dismissal of a shipper's antitrust claim against interstate freight carriers, even though the carriers were allegedly conspiring to set artificially high tariff rates, because the Interstate Commerce Commission had previously approved the rates as being "reasonable and nondiscriminatory." Id. at 162, 43 S. Ct. 47 (finding that plaintiff may not recover under federal antitrust laws for asserted injury related to paying the rate approved by the ICC). Since the 1920s, federal courts have applied the filed rate doctrine in a variety of contexts to bar monetary recovery by those who claim injury by virtue of having paid a filed rate.

Under the doctrine, rates filed with and approved by a regulatory agency are "per se reasonable and unassailable in judicial proceedings brought by ratepayers." Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994). The trigger for application of the doctrine requires only that the rates be filed with the appropriate regulatory agency.^[17]See also Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409, 417, 106 S. Ct. 1922, 90 L. Ed. 2d 413 (1986) (stating that a plaintiff may not recover under federal antitrust laws for an asserted injury related to paying the rate approved by the ICC). When a regulated entity has filed rates with a federal or state agency, the doctrine bars claims that challenges the rates as unreasonable or unlawful. Square D Co., 476 U.S. at 417, n. 19, 106 S. Ct. 1922 (finding the filed rate doctrine bars "treble-damage action" against motor carriers under antitrust laws despite allegations of "covert legal violations" resulting in artificially high filed rates).

In Keogh, the Supreme Court explained its policy principles underlying the filed rate doctrine. Chief among them was the Courts' limited ability to determine the reasonableness of rates. The doctrine serves to ensure that courts do not "substitute [their] judgment as to reasonable rates for that of an agency with specialized knowledge of the area." County of Suffolk, 154 F.Supp.2d at 385. This principle pertains to the "justiciabilty" of determining reasonable rates. The Second Circuit has explained that, "Courts are simply illsuited to systematically second guess the regulators' decisions...." Wegoland, 27 F.3d at 21. An assessment of damages would inevitably require an independent rate determination proceeding requiring a court to guess what (presumably) lower rate the agency should have chosen. Goldwasser v. Ameritech Corp., 222 F.3d 390, 402 (7th Cir.2000) (finding that filed rate doctrine barred consumer's claim for overcharges by incumbent local exchange carrier).

Additionally, the filed rate doctrine prevents regulated companies from engaging in price discrimination between ratepayers. Keogh, 260 U.S. at 163, 43 S. Ct. 47; Town of Norwood, Mass. v. New England Power Co., 202 F.3d 408, 419 (1st Cir. 2000); Marcus v. AT & T Corp., 138 F.3d 46, 58 (2d Cir.1998). Awarding damages to certain plaintiffs while leaving less litigious customers paying the filed rates would be discriminatory. Keogh, 260 U.S. at 163-64, 43 S. Ct. 47; Goldwasser, 222 F.3d at 402. Problematically, if courts were able to award damages according to their assessment of reasonable rates, plaintiffs would end up paying different rates than non-suing ratepayers. See Wegoland, 27 F.3d at 21. It is exactly this type of price discrimination that the filed rate doctrine seeks to prevent.

2. Application of the Filed Rate Doctrine

Since Keogh, the United States Supreme Court has applied the filed rate doctrine to a variety of cases, including antitrust, to impede claims that directly or indirectly attack rates that have been filed with the appropriate regulating authority. See e.g. Maislin Indus., U.S., Inc. v. Primary Steel, Inc. 497 U.S. 116, 128, 110 S. Ct. 2759, 111 L. Ed. 2d 94 (1990) (noting "[d]espite the harsh effects of the filed rate doctrine, we have consistently adhered to it"); Arkansas La. Gas Co. v. Hall et al., 453 U.S. 571, 577, 101 S. Ct. 2925, 69 L. Ed. 2d 856 (1981) (filed rate doctrine prohibits seller of natural gas from collecting rate different than one it filed with Federal Power Commission, noting doctrine has been extended across spectrum of regulated utilities); Square D Co., 476 U.S. at 417, 106 S. Ct. 1922 (affirming continued validity of decision in Keogh in antitrust cases; "This stringent rule prevails because otherwise the paramount purpose of Congressโ€”prevention of unjust discriminationโ€”might be defeated.").

Similarly, federal circuit courts have also applied the filed rate doctrine as a bar to antitrust litigation seeking monetary damages dependent upon a filed rate. See e.g., Pinney Dock & Transport Co. v. Penn. Cent. Corp., 838 F.2d 1445, 1482 (6th Cir. 1988) (holding that "under Keogh ... all rate-related claims made by plaintiffs, whether state or federal, must be dismissed."); AT & T Corp. v. JMC Telecom, LLC, 470 F.3d 525, 535 (3d Cir.2006) (state law claims for fraud and negligent misrepresentation barred by filed rate doctrine where court would be forced to determine what reasonable rate would be to assess damages); In re Mirant Corp., 378 F.3d 511, 518 (5th Cir.2004) (under filed rate doctrine, reasonableness of rates and agreements regulated by FERC may not be collaterally attacked in state or federal courts); Arsberry v. Illinois, 244 F.3d 558, 562 (7th Cir.2001) (filed rate doctrine bars plaintiff in federal district court from seeking to invalidate or modify filed rate or seeking damages based on difference between actual and hypothetical lawful tariff); Town of Norwood v. New England Power Co., 202 F.3d 408, 416 (1st Cir.2000) (filed rate doctrine limits attacks outside regulatory process on rates filed with federal regulatory agencies); Wegoland, Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994) (filed rate doctrine holds any rate approved by governing regulatory agency is per se reasonable and unassailable in judicial proceedings brought by ratepayers); H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 494 (8th Cir.1992) (finding the filed rate doctrine applies to rates promulgated by state as well as federal agencies).

a. The Filed Rate Doctrine Does Not Provide Full Immunity

The filed rate doctrine does not provide full immunity from antitrust attacks on filed rates. In fact, the doctrine only acts a legal barrier to rate-related (monetary) damages.^[18]Accord Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051 (1945) (restating the Keogh holding and holding that, although plaintiff could not maintain a suit under the antitrust laws to obtain damages, it could obtain injunctive relief against the collective rate-making procedures). "[C]ollective rate-making activities are not immunized from antitrust scrutiny simply because they occur in a regulated industry." Square D Co., 476 U.S. at 421, 106 S. Ct. 1922. Rather, Keogh holds that "an award of treble damages is not an available remedy," but regulated companies remain "subject to scrutiny under the antitrust laws by the Government and to possible criminal sanctions or equitable relief." McCray v. Fidelity Nat'l Title Ins. Co., 636 F. Supp. 2d 322, 328 (D.Del.2009) (citing Square D Co., 476 U.S. at 422, 106 S. Ct. 1922). However, "certain non-rate related claims must survive," at least initially. See Pinney Dock & Transp. Corp., 838 F.2d at 1482.

b. The Filed Rate Doctrine as Applied to the Insurance Industry

Notably, numerous federal district courts have applied the filed rate doctrine to actions involving insurers. Id. at 332-33 (citing Rios v. State Farm Fire & Cas. Co., 469 F. Supp. 2d 727, 737 (S.D.Iowa 2007)) (applying filed rate doctrine to common law claim seeking return of insurance premiums); Mullinax v. Radian Guar. Inc., 311 F. Supp. 2d 474, 484 n. 6 (M.D.N.C.2004) (filing of rate by defendant with state Department of Insurance bars plaintiffs from challenging reasonableness of those rates); Kirksey v. Am. Bankers Ins. Co., 114 F. Supp. 2d 526, 529 (S.D.Miss. 2000) (applying filed rate doctrine to common law claim seeking return of insurance premiums); Stevens v. Union Planters Corp., 2000 WL 33128256, at *3 (E.D.Pa. Aug. 22, 2000) (allegation of kickbacks in forced hazard insurance scheme barred by filed rate doctrine); Allen v. State Farm Fire & Cas. Co., 59 F. Supp. 2d 1217, 1229 (S.D.Ala.1999) (filed rate doctrine barred claim challenging unlawfulness of rate filing by insurance company); Korte v. Allstate Ins. Co., 48 F. Supp. 2d 647, 651 (E.D.Tex.1999) (applying filed rate doctrine to claim asserting insurance rates improper due to submission by defendant of illegal subsidy factor accounts to state insurance regulator because state agency determined reasonable rates pursuant to statutory scheme); Morales v. Attorney's Title Ins. Fund, Inc., 983 F. Supp. 1418, 1429 (S.D.Fla.1997) (dismissing plaintiffs' kickback claim against title insurer pursuant to filed rate doctrine because claim was nothing more than challenge to title insurance rates set by state regulators); Calico Trailer Mfg. Co., Inc. v. Ins. Co. Of N. Am., 1994 WL 823554 at *6 (E.D.Ark. Oct. 12, 1994) (filed rate doctrine barred plaintiffs' challenge to insurance rates as inflated as result of conspiracy among defendant insurance companies). Therefore, the application of the filed rate doctrine to the title insurance industry is not an unsupported intellectual stretch. See Winn, et al. v. Alamo Title Ins. Co., et al., Case No. A-09-CA-214-SS, 2010 WL 2102332 (W.D.Tex. May 14, 2009) (applying filed rate doctrine to Texas' title insurance regime for the first time and granting dismissal)(ECF No. 87-2); see also McCray v. Fidelity Nat'l Title Ins. Co., 636 F. Supp. 2d 322, 332-33 (D.Del.2009) (ECF NO. 98) (dismissing claims against title insurance defendants pursuant to filed rate doctrine); Dolan v. Fidelity National Title Insurance Co., No. 08-CV-0046, 2009 WL 3934153 (E.D.N.Y. June 17, 2009)(ECF No. 96) (same); In re Pennsylvania Title Ins. Antitrust Litigation, 648 F. Supp. 2d 663 (E.D.Pa.2009) (ECF No. 101) (same).

3. Sherman Actโ€”Federal Antitrust Challenge

Plaintiffs' allege violations of both federal and state antitrust laws. A plethora of courts have held that the filed rate doctrine applies to a federal antitrust challenge to a rate filed with federal as well as state regulatory agencies. In such cases, federal antitrust policy governs and the federal filed rate doctrine applies. See e.g., Uniforce Temp. Pers., Inc. v. Nat'l Council on Comp. Ins., Inc., 892 F. Supp. 1503 (S.D.Fla.1995) (applying federal filed rate doctrine to rate filed with state regulatory agency); Guglielmo v. WorldCom, Inc. 148 N.H. 309, 808 A.2d 65 (2002) (prison inmates' state antitrust law complaint about excessive rates charged by prison pay phones preempted by federal law's filed rate doctrine); accord Taffet v. S. Co., 967 F.2d 1483, 1494 (11th Cir.1992) (amid allegations violating RICO, court held "the filed rate doctrine applies whether the rate in question is approved by a federal or state or agency") (quoting H.J. Inc. v. Nw. Bell Tele. Co., 954 F.2d 485, 494 (8th Cir.1992)) (RICO claims barred by filed rate doctrine).

The undersigned has not found nor has any party presented authority prohibiting the application of the filed rate doctrine because a state agency, rather than a federal one, authorized or regulated the rates at issue. See e.g., ECF No. 98-2 (McCray, 636 F.Supp.2d at 330-31). The far majority of courts that have ruled on the applicability of the filed rate doctrine to stateregulated rates has applied some version of a filed rate doctrine to bar a state antitrust challenge to a state-regulated rate.^[19] Plaintiffs have "presented no reason to distinguish between rates promulgated by state and federal agencies. [The Court is] persuaded that the rationale underlying the filed rate doctrine applies whether the rate in question is approved by a federal or state agency." H.J. Inc., 954 F.2d at 494. The undersigned is aware of only two cases wherein the court refused to apply the filed rate doctrine to state antitrust challenge of a state agencyregulated rate. Both those Ninth Circuit cases involved California's Antitrust law, the Cartwright Act.^[20] Neither are persuasive in this case. More on point, the Sixth Circuit has ruled that filed rate doctrine bars both Sherman Act and Valentine Act claims. See Pinney Dock & Transp. Corp., 838 F.2d at 1482 (holding that "all rate-related claims made by the plaintiffs, whether state or federal, must be dismissed"); see also ECF 79 at 18 n. 18.

4. Valentine Actโ€”State Antitrust Challenge

Consistent with longstanding Ohio jurisprudence, federal courts interpret the Valentine Act "in accordance with federal judicial construction of federal antitrust laws." Johnson v. Microsoft Corp. 106 Ohio St. 3d 278, 834 N.E.2d 791, 797 (2005).

Plaintiffs warn that Ohio does not recognize the filed rate doctrine. ECF No. 77 at 22. This is not necessarily the case. Although not explicitly, the Ohio Supreme Court recognized the force of the filed rate doctrine in In re Investigation of Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 66 Ohio St. 3d 81, 609 N.E.2d 156 (Ohio 1993). In that case, the Ohio Supreme Court affirmed the finding that National Union's charging the City a premium other than that specified in the filed rate violated the law. In re Investigation of Nat'l Union Fire, 66 Ohio St.3d at 88, 609 N.E.2d 156. The Court observed that the Ohio Revised Code requires that any rate charged must be set forth in a manual of classifications, rules, and rates, or in a rating plan filed by or on behalf of the insured, and it rejected National Union's claim that the nature of its filing gave the insurer the discretion to use its own judgment in setting rates. In re Investigation of Nat'l Union Fire, 66 Ohio St.3d at 84, 609 N.E.2d 156. The Ohio Supreme Court's recognition of this principle in National Union augurs that the Ohio Supreme Court would apply the filed rate doctrine to Plaintiffs' Valentine Act claims, if given the opportunity to do so.

Defendants argue that the title insurance rates filed by Defendant's fall within the scope of the filed rate doctrine. The rates at issue were submitted to, reviewed and approved by the Ohio Department of Insurance before becoming effective. See O.R.C. ง 3935.04(C) Cf. ECF No. 36 ถ 5. Once filed, the rates are per se reasonable, and cannot be challenged in court. Wegoland, 27 F.3d at 18 ("is per se reasonable and unassailable in judicial proceedings brought by ratepayers."). Plaintiffs do not contest that the filed rates were the only rates that Defendants were allowed to charge in Ohio. ECF No. 36 at ถถ 4, 5. And, that those rates were filed with the Ohio Department of Insurance, the relevant regulatory agency. ECF No. 36 at ถถ 5, 40, 46 & 47. Despite Plaintiffs' objections, nothing more is required for the filed rate doctrine to apply. Square D Co., 760 F.2d at 1351. Plaintiffs' allegations of fraud (discussed further below) do not alter the landscape groomed by the filed rate doctrine. Wegoland, 27 F.3d at 20. The application of the filed rate doctrine is not "determined by the culpability of the defendants['] conduct or the possibility of inequitable results." Marcus, 138 F.3d at 58; H.J. Inc. v. Nw. Bell Tel. Co., 954 F.2d 485, 488 (8th Cir.1992) (filed rate doctrine prohibits party from recovering damages measured by comparing filed rate and rate that might have been approved absent alleged misconduct at issue).

The filed rate doctrine states that where regulated companies are required by federal or state law to file proposed rates or charges with a governing regulatory agency, any rate approved by that agency "is per se reasonable and unassailable in judicial proceedings brought by ratepayers." Wegoland, 27 F.3d at 18. The State of Ohio requires that all rates for title insurance be filed with ODI. See O.R.C. ง 3935.04(A) ("Every insurer shall file with the superintendent of insurance, ... every form of a policy, endorsement, rider, manual, minimum class rate, rating schedule, or rating plan, and every other rating rule, and every modification of any of them, which it proposes to use.").

Finally, as Defendants aptly recount, Ohio's rules of statutory construction also support the application of the filed rate doctrine because the Ohio Revised Code specifically permits defendants to collaborate through a rating bureau jointly (i.e., the OTIRB) to submit proposed rates to the ODI. See O.R.C. ง 3935.04(B). Under well-established doctrines of statutory construction, conduct that is specifically allowed by Ohio Revised Code's Chapter 3925 cannot be a violation of the general antitrust prohibitions of the Valentine Act. The Ohio Revised Code has codified this principle of statutory construction:

If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.

O.R.C. ง 1.51. See Roth Steel Prods. v. Sharon Steel Corp., 705 F.2d 134 (6th Cir. 1983) (special statute of frauds in O.R.C. ง 1302.03 (U.C.C.Sec.2-201) prevails over the general statute of frauds in O.R.C. ง 1335.05); State ex rel. Brown v. Rockside Reclamation, Inc., 47 Ohio St. 2d 76, 351 N.E.2d 448 (Ohio 1976) (applying principle to conclude that solid waste facility licensed by Ohio EPA was not subject to Ohio's general nuisance statute). Further, O.R.C. ง 1.52 provides that "[i]f statutes... are irreconcilable, the statute latest in date of enactment prevails." The Valentine Act is a general provision, adopted in 1898, that prohibits price-fixing in Ohio. O.R.C. ง 3935.04(B) is a specific provision, adopted in 1947, that permits insurers to make collective rate proposals to ODI. Consistent with Ohio's principles of statutory construction, these two laws must be reconciled by treating Section 3935.04(B), which is the later and more specific provision concerning collective rate making by insurers, as an exception to the Valentine Act. Any other conclusion would render the rating bureau provision meaningless. See Tucson Unified Sch. Dist. v. Chicago Title Ins. Co. 167 Ariz. 114, 804 P.2d 843 (Ct.App.Ariz.1991) (cooperative rating making authorized by state insurance law is beyond the reach of state antitrust law). ECF No. 79 at 29-30.

Although Plaintiffs object to such an extension in the instant case, it appears that there is no blanket prohibition against applying the filed rate doctrine to Ohio's title insurance regime.^[21] Rather, it just has not yet been done.^[22] In Pinney Dock, the Sixth Circuit perhaps presciently, noted "we do not believe that either Keogh or Square D was intended to be limited solely to antitrust damage claims brought by shippers." 838 F.2d at 1456.

5. Plaintiffs' Arguments against Application of the Filed Rate Doctrine

Plaintiffs urge several reasons why the filed rate doctrine has not and should not be applied to Ohio's Title Insurance regime.^[23] Initially, Plaintiffs argue that Ohio's failure to provide "meaningful agency oversight" to title insurance rate-making necessitates the application of the Sherman Act because "the court would not be interfering with any expertise utilized by the regulator."^[24]See ECF No. 77 at 23 n. 23; ECF No. 99 (Letter dated July 20, 2009 objecting to McCray). In addition to failure to provide oversight, Plaintiffs warn of: allegations of fraud in the rate setting procedure; the lack of pervasive regulatory scheme for title insurance rate filings; and lack of alternative remedy, e.g. reparations, for injured Ohio consumers under Ohio law. Additionally, Plaintiffs also argue that Defendant title insurance companies' rate filings do not comply with ODI's filing requirements, in the first instance. These reasons, from Plaintiffs' viewpoint, individually or collectively justify an exception to the application of the filed rate doctrine.

Despite its numerous component parts, Plaintiffs' argument overall against the application of the filed rate doctrineโ€”that the rates are infirm because they were not properly reviewed, are the offspring of corruption, and noncompliant with established proceduresโ€”is firmly contradicted by Supreme Court and other (albeit) nonbinding but persuasive case law.

In Square D, the Supreme Court's affirmation of Keogh is especially instructive because, in Square D, unlike Keogh, the rates at issue had not been "challenged" or vetted in a formal regulatory (ICC) hearing before going into effect. Nevertheless, the Square D Court found (despite Judge Friendly's obvious temptations) that the rates "were ... duly submitted, lawful rates." Square D Co., 476 U.S. at 417, 106 S. Ct. 1922. And, under Keogh, precluded "a treble damages antitrust action." Id. "Since the Supreme Court did in fact uphold the ruling in Keogh [the Sixth Circuit] construe[d] its cited language to be that the Keogh rationale, whatever else might be said of it, still commands, in the Supreme Court's view, the support of Congress." Pinney Dock, 838 F.2d at 1456. Plaintiffs have presented no legal authority or argument more persuasive than stare decisis. Even the Sixth Circuit has conceded, "[i]f there is to be an overruling of the Keogh rule, it must come from Congress not from Pinney Dock, 838 F.2d at 1456 (citing Square D Co., 476 U.S. at 424, 106 S. Ct. 1922)."

a. Meaningful or Comprehensive Review

In Square D, the Supreme Court unambiguously refused to require meaningful review as a predicate for applying the filed rate doctrine. See Square D Co., 476 U.S. at 417 n. 19, 106 S. Ct. 1922 (affirming the appellate court's ruling that "shippers could not recover treble damages for overcharges whenever tariffs have been filed."). Despite being legally bound to follow the relevant rulings of the United State Supreme Court, the Square D ruling is particularly insightful because, unlike Keogh, the facts of Square D presented allegations of both antitrust and covert legal violations.^[25] The allegations of illegal activity in the rate-setting process did not detract the Supreme Court from its goals of leaving rate-setting to the experts. Square D Co., 476 U.S. at 424, 106 S. Ct. 1922. "It is the filing of the tariffs, and not any affirmative approval or scrutiny by the agency, that triggers the filed rate doctrine." Town of Norwood v. New England Power Co., 202 F.3d 408 (1st Cir. 2000) (crediting Square D Co., 476 U.S. at 417, 106 S. Ct. 1922). See also Goldwasser v. Ameritech Corp., 222 F.3d 390, 402 (7th Cir.2000) (relying on the filed rate doctrine to bar antitrust claim "although the state public utility commissions nominally oversee its rate-setting, they rarely exercise their muscle and thus give no meaningful review to the rate structure."). Meaningful and comprehensive review appear to be used interchangeablyโ€”both indicating, minimally, a statutory scheme providing a review of rates filed and public input in rate determination.

Assuming that comprehensive oversight is required, Ohio's regulatory scheme provides it. The following is undisputed.^[26] Ohio law requires that title insurance rates be filed. See O.R.C. ง 3935.04(H); ECF No. 36 at 1140. "Ohio is one of the very small number of states in which insurers may satisfy that obligation by becoming a member of a licensed rating bureau which makes such filings on the insurer's behalf."^[27] ECF No. 36 at 1140. The Superintendent of Insurance must review the filed rates. See O.R.C. ง 3935.04(C). These filed rates may become effective 30 days after filing if the Superintendent has not disapproved. See O.R.C. ง 3935.04(D). Ohio law does not "require" nor "prohibit" uniformity of rates among insurers. ECF No. 36 at 1141. Square D required no more process than that required by Ohio's law provides. See also Rios, 469 F. Supp. 2d 727 (dismissing plaintiffs' claims pursuant to filed rate doctrine and finding that Iowa's homeowners insurance regulatory scheme (which is nearly identical to Ohio's) was comprehensive). Plaintiffs rely on Blaylock v. First Am. Title Ins. Co., 504 F. Supp. 2d 1091 (W.D.Wash. 2007), wherein the court declined to apply the filed rate.^[28]Blaylock, a putative class action suit brought under the Real Estate Settlement Procedures Act and state consumer protection act, was filed just two days after an investigative report revealing that the defendant title insurance companies had paid illegal inducements to middlemen in order to attract business, behavior specifically prohibited by state regulations. Id. at 1096. The State of Washington had a "comprehensive scheme for setting insurance premiums," the title insurance industry, however, was "specifically exempted from this rate-setting regulatory scheme." Id. at 1095-96. Blaylock detailed that its refusal to apply the filed rate doctrine to bar Plaintiffs' claims hinged on considerations such as: (1) Washington insurance code's failure to mandate any review of the filed rates; (2) no requirement that title insurers consider past and prospective loss experience, hazards, profitability and expenses when setting rates; (3) the shortenedโ€”15 versus 30 days for general insurance ratesโ€”waiting period before the rated became effective, "indicating that review of the rates is not actually anticipated"; and (4) the lack of any alternative means for constituents to participate in the rate-setting process. Id. at 1096. These factors taken together left the Court with the impression that Washington state "title insurance rates are subjected only to superficial regulation." Id. at 1102-03 & n. 2. The Blaylock Court's decision was also informed by Plaintiffs' failure to directly challenge the reasonableness of the rates or the quality of the service along with "the uneasy fit between the animating purposes of the [filed rate] doctrine and the facts of [that] case." Id. at 1103.

Blaylock is distinguishable from the instant case wherein Plaintiffs acknowledge that Ohio law requires title insurers, or a rating bureau on their behalf, to submit proposed rates to the Department of Insurance for review. In Ohio, rates must take into account, inter alia, past and prospective loss experience, and past and prospective expenses and filings must be accompanied by sufficient supporting information for the superintendent to make his review. See Complaint, ECF No. 36 at 114 (citing O.R.C. งง 3935.03 & .04). In contrast to the 15-day waiting period in Blaylock, in Ohio, title insurance rates do not become effective until 30 days after filing. See Complaint, ECF No. 36 at ถ 5. The infirmities complained of in Blaylock are not present in the instant case.

b. Lack of an Active Rate Approval Process

In addition to relying on Blaylock, Plaintiffs rely heavily on two Ninth Circuit cases wherein that Court declined to apply the filed rate doctrine because the regulatory scheme did not require active approval of the filed rate. See ECF No. 77 at 22-23 (citing Brown v. Ticor Title Ins. Co., 982 F.2d 386, 394 (9th Cir.1992) and Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 338 (9th Cir.1990)). Neither Ninth Circuit case is persuasive. Accord McCray, 636 F.Supp.2d at 334-35. The plaintiffs in Brown filed a class action complaint alleging that the defendant had violated the antitrust law by participating in state-licensed rating bureaus that filed rates with state administrative agencies. Brown, 982 F.2d at 388. The Ninth Circuit focused on the regulatory regime's only requiring non-disapproval of rates, rather than robust antecedent review and express approval. Brown, 982 F.2d at 394. Ignoring Supreme Court precedent, Brown held that the filed rate doctrine did not apply because the rates filed "were not subject to meaningful review by the state, [and thus] the fact that they were filed does not render them immune from challenge." Id. Brown's result directly contradicts Square D's directive that the filed rate applies "whenever tariffs have been filed" and is not limited to circumstances in which an agency "investigated and approved" filed rates. Square D Co., 476 U.S. at 417 n. 19, 106 S. Ct. 1922. Wileman Bros is less persuasive. In that case, the Court did not discuss the filed rate doctrine. Rather it focused on whether immunity existed under 7 U.S.C. ง 608b for following agricultural marketing orders. Wileman, 909 F.2d at 333-34.

Plaintiffs are well within their rights to insist on a more robust approval process. Such a decision is, however, one more appropriately made by lawmakers than courts.

c. Fraud Exception

The application or effect of the filed rate doctrine is not precluded by the fraud or other unlawful conduct by Defendants or any State agency officials. See generally Wegoland, 27 F.3d at 20. Although given the opportunity to do so, the Supreme Court has not decided that there is a fraud exception to the filed rate doctrine. See Arkansas La. Gas Co., 453 U.S. at 583 n. 13, 101 S. Ct. 2925 (the Court reserved "for another day the question whether the filed rate doctrine applies in the face of fraudulent conduct."). Other courts have also refused to recognize a fraud exception to the filed rate doctrine. As the Court of Appeals for the Eight Circuit stated, "the underlying conduct does not control whether the filed rate doctrine applies. Rather, the focus for determining whether the filed rate doctrine applies is the impact the court's decision will have on agency procedures and rate determinations" not on underlying conduct such as fraud. H.J. Inc. II, 954 F.2d at 489 & n. 4 (8th Cir. 1992); accord, Taffet II, 967 F.2d at 1494-95 (11th Cir.1992) (rejecting proposition that fraud is exception to the filed rate doctrine); Wegoland, 806 F.Supp. at 1118 (same).

A court does not consider "the culpability of the defendant's conduct or the possibility of inequitable results" when applying the doctrine.^[29]Marcus v. AT & T Corp., 138 F.3d 46, 58 (2d Cir.1998) (citing Wegoland, 27 F.3d at 19 and H.J. Inc., 954 F.2d at 488). Justice Brandeis, author of the Keogh decision, wrote that even if the Court were to assume that the rate-fixing conspiracy allegations against the defendants were true, the filed rate doctrine would still bar the plaintiffs claim since the tariff rates had been filed with the Interstate Commerce Commission. See Keogh, 260 U.S. at 165, 43 S. Ct. 47. Similarly, in Maislin Indus. v. Primary Steel, Inc., Justice Brennan explained that the Supreme Court has "never held that a carrier's unreasonable practices" justifies departure from the filed rate doctrine. Maislin Indus., 497 U.S. at 129, 110 S. Ct. 2759 (finding that the Interstate Commerce Commission could not preclude collection of a filed rate on the grounds that carrier had engaged in an unreasonable practice).

In Wegoland, the Second Circuit reaffirmed the notion that there is no fraud exception to the filed rate doctrine that would save a suit from dismissal. Wegoland, 27 F.3d at 20. First, the Court explained that allowing an exception for fraud would be incompatible with the line of Supreme Court cases from Keogh to Square D. Id. at 21. Secondly, such an exception would be inconsistent with policy behind the filed rate doctrine; allowing a fraud exception would be the equivalent of a court deciding what rates are reasonable, which, in turn, would "unduly subvert the regulating agencies' authority and thereby undermine the stability of the system." Id.

In light of the Supreme Court's reaffirmation of the filed rate doctrine in Square D, and the persuasive authority of the notable decisions of the Second, Eight and Eleventh Circuit Appellate courts, the undersigned declines Plaintiffs invitation to weave a fraud exception into the application if the filed rate doctrine, especially given the Sixth Circuit's uninterrupted commitment to enforcing the principals underlying the doctrine. Square D Co., 476 U.S. at 424, 106 S. Ct. 1922 (if the Keogh rule is to be overruled, "it must come from Congress, rather than this Court"). See also Pinney Dock, 838 F.2d at 1457 (stating that it believed the Keogh or Square D were intended to extend beyond antitrust cases involving shippers)

d. Lack of Compliance with Ohio's Laws

Plaintiffs allege that Defendants have failed to comply with Ohio's Insurance laws relative to rate submission. In support of their arguments, Plaintiffs rely upon cases wherein the courts determined that "rates were impossible to calculate from the information [the carrier] filed with the ICC" or the filing was an "incomplete tariff" because the transportation company did not file the distances associated with the rates. Atlantis Express, Inc. v. Associated Wholesale Grocers, Inc., 989 F.2d 281, 284 (8th Cir.1993); and Security Servs. v. Kmart Corp., 511 U.S. 431, 442, 114 S. Ct. 1702, 128 L. Ed. 2d 433 (1994). In both these cases, the ICC regulations themselves specifically voided the tariffs. See Atlantis, 989 F.2d at 284 and Security Servs., 511 U.S. at 434, 114 S. Ct. 1702. In the instant case, Plaintiffs do not allege that the title insurance rates that they challenge are impossible to calculate based on the rate filings.

In two other cases relied upon by Plaintiffs, the courts decided that the filed rate doctrine did not prevent the agency charged with overseeing the filed rates from compelling a regulated entity to make a refund or to charge a different rate, consistent with its own regulations or orders. Aberdeen & R.R. Co. v. United States, 682 F.2d 1092, 1102-03 (5th Cir. 1982) (ICC could determine rates sought to be enforced were not permitted, and require a refund), vacated on other grounds, 467 U.S. 1237, 104 S. Ct. 3503, 82 L. Ed. 2d 814 (1984); TON Servs. v. Qwest Corp., 493 F.3d 1225, 1237-38 (10th Cir. 2007) (FCC's Waiver/Refund Order under 1996 Telecommunications Act put industry on notice that a refund might be necessary once new rates were filed.). These decisions concerning the authority of a regulatory agency to compel a rate refund or rate change are irrelevant to whether the filed rate doctrine prevents this Court from taking such action.

1. Improper Filing of Rates

Plaintiffs' "improper filing" argument also relies on the assertion that "Ohio law does not permit rating bureaus in Ohio to submit minimum premiums." ECF No. 77 at 19. In so arguing, Plaintiffs seemingly rely upon a publication issued by ODI without giving due deference to its inconsistency with existing Ohio law. The Revised Code specifically permits a title insurance company to "satisfy its obligation" to make the filings required by O.R.C. ง 3935.04(A), including "minimum class rate[s], rating schedule[s], or rating plan[s], and every other rating rule", "by becoming a member of, or a subscriber to, a licensed rating bureau." O.R.C. ง 3935.04(B). As Plaintiffs recognize in their Complaint, the title insurer defendants maintain membership in the Ohio Title Insurance Rating Bureau ("OTIRB"), which is "licensed by the ODI pursuant to Sections 3935.04 and 3953.28 of the Ohio Revised Code." ECF No. 36 at ถถ 22, 40. "OTIRB files the title insurance rates for its members in Ohio." ECF No. 36 at 1146. Plaintiffs admit that such rates have been approved, ECF No. 77 at 4, and it is undisputed that their complaint attacks the filed and approved rates. Insurers who join in an OTIRB filing are bound to adhere to the filings made by the Bureau and approved by the Department of Insurance, unless permission for deviation has been granted. O.R.C. ง 3935.07. Despite Plaintiffs complaint against the uniformity of the OTIRB filed rates, the ORC explicitly provides that uniformity is not prohibited nor encouraged. ECF No. 36 at 114; O.R.C. ง 3935.01.

Plaintiffs direct the Court's attention to ODI Bulletin 91-1 without noting whether it is legally binding on the OTIRB.^[30][31] On its face, Bulletin 91-1 does not prohibit the individual insurers from satisfying their obligation to file rates by subscribing to a licensed rating bureau, as permitted by O.R.C. งง 3935.04(B) (applicable to all insurers, including title insurers) and O.R.C. ง 3937.03 (applicable to casualty and motor vehicle insurance). Rather, the Bulletin outlines the procedures to be followed when a rating bureau files only advisory prospective loss costs, rather than filed rates, and supporting data. Under Ohio law, a filed rate may take into account not only prospective loss costs (costs associated with the risk of loss and the cost of loss adjustment), but also other expenses and a reasonable margin for profit. See Complaint, ECF No. 36 at 114. Ohio law permits rating bureaus to file either final rates or advisory prospective loss costs, as well as other types of information. O.R.C. งง 3935.04(A),(B); 3935.07. If ODI interpreted its Bulletin 91-1 to preclude rate filings by OTIRB, in accordance with its procedure it would not have disapproved them.

A bulletin such as 91-1 is only advisory in nature. In re Investigation of Nat'l Union Fire Ins. Co., 66 Ohio St. 3d 81, 86, 609 N.E.2d 156 (1993) ("National Union"). Although such a bulletin may be used to provide guidance, it cannot be used to establish policies inconsistent with an act of the legislature. State ex rel. Montrie Nursing Home v. Aggrey, 54 Ohio St. 2d 394, 396, 377 N.E.2d 497 (Ohio 1978). Interpreting Bulletin 91-1 to forbid a rating bureau from filing rates on behalf of its members, as Plaintiffs urge, would be inconsistent with the legislative intent to permit such filings, as expressed in O.R.C. งง 3935.04(A), (B); 3937.03.

In sum, the rates that Plaintiffs challenge were filed by the OTIRB, in accordance with existing Ohio laws. Rate filings by the OTIRB are expressly permitted by O.R.C. ง 3935.04(A) and (B). Bulletin 91-1 offers an alternative approach to rate filing for insurers and rating bureaus, but did not repeal O.R.C. ง 3935.04(A) and (B), which authorizes defendants' conduct. Assuming arguendo that the challenged rate filings violated Bulletin 91-1 in some way, the filed rate doctrine would still require dismissal. Plaintiffs admit that defendants filed rates and the Department of Insurance approved them. ECF No. 36 at ถถ 40, 46; ECF No. 77 at 5.

Bulleting 91-1 does not obviate the application of the filed rate doctrine. See e.g., Norwood, 202 F.3d at 419 ("It is the filing of the tariffs and not any affirmative approval or scrutiny by the agency that triggers the filed rate doctrine.)"; Wegoland II, 27 F.3d at 18; Stevens, 2000 WL 33128256, at *2; Daleure, 119 F.Supp.2d at 689.

e. Application to Injunctive Relief

Lastly, Plaintiffs argue that the filed rate doctrine does not apply to demands for injunctive relief. The undersigned agrees.

The Complaint's Preliminary Statement announces that "Plaintiffs bring this class action to recover from the defendants the damages they and others who have purchases title insurance in the State of Ohio sustained as a result of defendants' anticompetitive and unlawful conduct." ECF No. 36 at ถ 7. This preamble bookends the confirmation that the Complaint seeks "threefold the damages" (ECF No. 36, Prayer for Relief, p. 21) because plaintiffs have "paid more for [title insurance] than would have been paid in the absence of said antitrust violation," this damages concept falls squarely within the realm of that the filed rate doctrine seeks to prevent. ECF No. 36 at ถ 68.^[32]

There is little question that the filed rate doctrine bars plaintiffs' Sherman Antitrust Act claim for monetary damages, given that "[i]t is quite true that one rationale of the filed rate doctrine is to prevent discriminatory damage awards to different customers." (Square D Co., 476 U.S. at 417, 106 S. Ct. 1922) (affirming Supreme Court's "holding in [Keogh] ... petitioners may not bring a treble-damages antitrust action"); Town of Norwood, Mass., 202 F.3d at 419 (affirming dismissal despite prayer for declaratory and injunctive relief). There remains, however, the question of whether the filed rate doctrine bars Plaintiffs' prayer for injunctive relief as articulated in the Complaint.

The Complaint's prayer for relief includes the following request for injunctive relief:

Perpetually enjoin[ ] or restrain[ ] [defendants] from ... [1] continuing, maintaining or renewing the aforesaid combination, conspiracy, agreement, understanding or concert of action, [2] adopting or following any practice, plan, program or design having a similar purpose or effect in restraining competition.

ECF No. 36 at p. 21. In State of Geogia v. Pennsylvania R. Co., 324 U.S. 439, 454-462, 65 S. Ct. 716, 89 L. Ed. 1051, the Supreme Court indicated that, relative to equity claims, Keogh operated as a limitation rather than an immunity. "Keogh very likely does preclude [prevent] an injunction that would require a firm to charge in the future a rate different from a previously filed tariff mandated." But there 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.^[33] Areeda and Hovenkamp, ANTITRUST LAW, ง 247d at 423 (Vol. IA Third Edition). An effective remedy would require the Court to restrain the application of Ohio's current title insurance rates and the application of Ohio's current scheme of setting those rates in the future. The undersigned can divine no way of providing the injunctive relief sought that does not involve the Court's intervention in changing the rates filed, reviewed and approved by the ODI, the very intervention that controlling legal authority uniformly urges against. See Hill v. BellSouth Telecomms., Inc. 364 F.3d 1308, 1316 (11th Cir.2004) (finding that even if a claim does not directly attack a filed rate an award of damages that would effectively result in judicial determination of reasonableness of rate is prohibited under filed rate doctrine). Keogh objects to a monetary remedy based upon the filed rate. Thus, Plaintiffs' state and federal claims seeking such a remedy must fail.

B. The McCarran-Ferguson Act exempts Plaintiffs' Sherman Act Claim from Scrutiny

The McCarran-Ferguson Act has its origins in the Commerce Clause disputes of the 1940s. Historically, it had been assumed that "[i]ssuing a policy of insurance is not a transaction of commerce...." Paul v. Virginia, 75 U.S. 168, 183, 8 Wall. 168, 19 L. Ed. 357 (1869). Consequently, the prevailing view was that insurance was a state matter beyond Congress' power to regulate as interstate commerce. The Supreme Court changed this view in 1944 when it held that an insurance company conducting a substantial part of its business across state lines was engaged in interstate commerce and thereby subject to federal antitrust laws. U.S. v. South-Eastern Underwriters Ass'n, 322 U.S. 533, 553, 64 S. Ct. 1162, 88 L. Ed. 1440 (1944). The South-Eastern Underwriters holding caused panic among insurers and was widely perceived as a threat to state power over the insurance industry. See United States Dept. of Treasury v. Fabe, 508 U.S. 491, 499-500, 113 S. Ct. 2202, 124 L. Ed. 2d 449 (1993). In order to quell the insurance industries concerns, Congress quickly enacted the McCarran-Ferguson Act in 1945 to reaffirm state supremacy in the realm of insurance regulation. Id. at 500, 113 S. Ct. 2202; see also Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 40, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996); AmSouth Bank v. Dale, 386 F.3d 763, 780-83 (6th Cir.2004).

Defendants argue that the McCarran-Ferguson Act provides an exemption from federal antitrust laws. The Act states in relevant part:

(b) Federal regulation

No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance: Provided, That after June 30, 1948, the Act of July 2, 1890, as amended, known as the Sherman Act, and the Act of October 15, 1914, as amended, known as the Clayton Act, and the Act of September 26, 1914, known as the Federal Trade Commission Act, as amended [15 U.S.C.A. 41 et seq.], shall be applicable to the business of insurance to the extent that such business is not regulated by State law.

15 U.S.C. ง 1012(b) (emphasis in original). The Act further provides:

(b) Nothing contained in this chapter shall render the said Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.

15 U.S.C. ง 1013(b). Thus, the Act exempts from federal antitrust liability conduct that is part of the "business of insurance," regulated by state law, and does not constitute a boycott, coercion, or intimidation. See 15 U.S.C. งง 1012(b) & 1013(b).

The first criteria the Court must consider is whether the challenged activity is the "business of insurance." The Act does not define the term, but the case law concerning the Act has produced a structured analysis to determine what constitutes the business of insurance. The evolution of Supreme Court case law regarding the business of insurance determination has been refined in Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L. Ed. 2d 261 (1979) and Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 102 S. Ct. 3002, 73 L. Ed. 2d 647 (1982).

In Royal Drug, the Court emphasized that the Act exempts the business of insurance, not the business of insurers from the scrutiny of certain federal laws. Royal Drug, 440 U.S. at 210-11, 99 S. Ct. 1067; see also Hartford Fire Ins. Co. v. California, 509 U.S. 764, 783, 113 S. Ct. 2891, 125 L. Ed. 2d 612 (1993) (citing Royal Drug, 440 U.S. at 232-33, 99 S. Ct. 1067) ("the McCarran-Ferguson Act immunizes activities rather than entities...."). The Royal Drug Court found that the agreements at issue were "not `between insurer and insured,'" but instead, "separate contractual agreements" between the insurance company and outside service providers. Royal Drug, 440 U.S. at 216, 99 S. Ct. 1067. Because the Act does not create an unconditional exemption from antitrust laws, the Court explained that collateral agreements were not intended to qualify as the "business of insurance" and that Congress' intent was to exempt the underwriting of risk and permit intra-industry cooperation for statistical and rate-making purposes. Id. at 221-22, 99 S. Ct. 1067.

Building upon its holding in Royal Drug, the Court in Pireno further distilled the business of insurance analysis down to three specific criteria for determining whether an insurer's particular activity constitutes the "business of insurance." The Pireno criteria are:

1) whether the practice has the effect of transferring or spreading a policy-holder's risk;

2) whether the practice is an integral part of the policy relationship between the insurer and the insured; and

3) whether the practice is limited to entities within the insurance industry.

See Pireno, 458 U.S. at 129, 102 S. Ct. 3002; U.S. Dept. of Treasury v. Fabe, 508 U.S. 491, 497, 113 S. Ct. 2202, 124 L. Ed. 2d 449 (1993) (applying Pireno's "tripartite standard for divining what constitutes the `business of insurance.'"). Affirmative responses to these criteria indicate that the practice is the business of insurance, but "[n]one of these criteria is necessarily determinative in itself." Pireno, 458 U.S. at 129, 102 S. Ct. 3002.

Based upon the guidance set forth in Royal Drug and Pireno, the undersigned's focus is not on the legality of Defendants' practices, but instead on the "quality of the practice." Hartford, 509 U.S. at 782, 113 S. Ct. 2891. Taking the allegations in the Complaint as true, Plaintiffs allege that Defendants' practice is submitting a rate to the Ohio Department of Insurance for title insurance that is the result of a horizontal price-fixing agreement and is therefore violative of the Sherman Act. The horizontal price-fixing agreement is between members of the Ohio Title Insurance Rating Bureau ("OTIRB") who are all title insurance companies. ECF No. 36 at ถถ 5, 24, 36, 49. The submitted rate, once approved by ODI, becomes the filed rate for title insurance for the members of OTIRB who then must charge this rate pursuant to Ohio law. ECF No. 36 at ถ 40. Plaintiffs complain that the filed rate for title insurance for which they paid was more than it should be because of the alleged price-fixing conspiracy. ECF No. 36 at ถ 7. The mere fact that the alleged price-fixing conspiracy may be anti-competitive or illegal does not remove it from the "business of insurance." See Royal Drug, 440 U.S. at 210, 99 S. Ct. 1067 ("Whether the Agreements are illegal under the antitrust laws is an entirely separate question, not now before us.") (emphasis in original); Hartford, 509 U.S. at 782 n. 10, 113 S. Ct. 2891 ("The activities in question here, of course, are alleged to violate federal law, and it might be tempting to think that unlawful acts are implicitly excluded from the `business of insurance.' Yet [the McCarran-Ferguson Act]'s grant of immunity assumes that acts which, but for that grant, would violate the Sherman Act... are part of the `business of insurance.'").

1. The "Business of Insurance"

As an initial matter, Plaintiffs urged the Court during oral argument to find that title insurance is not "insurance." Plaintiffs have cited no authority to support this contention. Rather, they described title insurance as a warranty that is a commodity product. ECF No. 36 ถถ 2, 39. Plaintiffs argue that because the "risk" that title insurance company's policies cover is reduced through the title search and examination process completed before issuing coverage, that Defendants are not undertaking any risk, which is one of the three basic elements of the concept of insurance. ECF No. 36 at ถ 38; see Royal Drug, 440 U.S. at 212 n. 7, 99 S. Ct. 1067 (noting the three elements as: 1) the undertaking of a "risk" by the insurer; 2) in exchange for the payment of a "premium;" 3) through a contract called the "policy"). The undersigned finds this argument untenable.

This Court has not found, nor has Plaintiff directed the Court to, any federal district, circuit, or Supreme Court case holding that title insurance is not "insurance."^[34] Moreover, several other types of insurance companies conduct essentially the same analysis prior to issuing insurance policies. For example, for an individual to obtain life insurance, more often than not, one is subject to a battery of medical tests and questions prior to the issuance of any policy. See e.g., United of Omaha Life Ins. Co. v. Rex Roto Corp., 126 F.3d 785, 786 (6th Cir.1997) (describing life insurance underwriting process). And the premium for such a policy, if one is not denied coverage, is based on the results of those tests and ones past and current health. See id. The same rationale applies to health insurance and auto insurance. Health insurance companies ask similar questions as life insurance companies prior to issuing a policy and one may be excluded from coverage for a pre-existing condition or simply denied coverage because of past health issues. See e.g., Colley v. Conseco Medico Ins. Co., 11 Fed.Appx. 487, 488-90, 2001 WL 599712 (6th Cir.2001) (describing plaintiffs health insurance application process). Similarly, auto insurance rates are usually based on age, gender, and driving record. See e.g., McLiechy v. Bristol West Ins. Co., 474 F.3d 897, 899 (6th Cir.2007) (describing Michigan's statutory factors insurance companies may consider in setting rates). Lastly, ratings bureaus and title insurance are regulated by Ohio law and the Ohio Department of Insurance. See O.R.C. งง 3935 et al. For these reasons, the undersigned is not persuaded that title insurance is not insurance for purposes of the McCarran-Ferguson Act.

With respect to the business of insurance criteria under the Act, the Court notes that the Supreme Court stated in Royal Drug that "the fixing of insurance rates is the `business of insurance.'" Royal Drug, 440 U.S. at 224, 99 S. Ct. 1067; see also Gilchrist v. State Farm Mut. Auto. Ins. Co., 390 F.3d 1327, 1331 (11th Cir. 2004) ("Rate-making, of course, is the paradigmatic example of the conduct that Congress intended to protect by the McCarran-Ferguson Act.") (citing Royal Drug, 440 U.S. at 221, 99 S. Ct. 1067) ("Because of the widespread view that it is very difficult to underwrite risks in an informed and responsible way without intra-industry cooperation, the primary concern of both representatives of the insurance industry and the Congress was the cooperative ratemaking efforts be exempt from the antitrust laws."). Thus, the scenario Plaintiffs must establish to distinguish their claim as one outside the rate-making process is that their claim challenges a conspiracy involving a party outside of the rate-making process. See Royal Drug, 440 U.S. at 216-22, 99 S. Ct. 1067 (holding the Act does not exempt agreements between an insurance company and an outside provider).

In order to determine the appropriate characterization of Plaintiffs' claim, the Court looks to the Complaint which alleges the following, in pertinent part:

ถ 7. The ultimate purpose and effect of the defendants' unlawful conduct has been to increase the prices Ohio title insurance purchasers have paid compared to what they would have paid absent defendants' joint illegal conduct. Plaintiffs bring this class action to recover from the defendants the damages they and others who purchased title insurance in the State of Ohio sustained as a result of defendants' anticompetitive and unlawful conduct.

ถ 57. Beginning at least as early as March 2004, and continuing thereafter to the present, the exact dates being unknown to plaintiffs, defendants and their coconspirators^[35] engaged in a contract, combination and conspiracy in unreasonable restraint of interstate trade and commerce in violation of Section 1 of the Sherman Act.

ถ 58. The aforesaid contract, combination and conspiracy has consisted of a continuing agreement, understanding and concert of action among the defendants and their co-conspirators, the substantial terms of which have been:

(a) to fix, raise, maintain and stabilize the price of title insurance throughout the State of Ohio; and,

(b) to fix, raise, maintain and stabilize the terms and conditions of sale of title insurance in the State of Ohio.

ถ 59. Those defendants who are Ohio licensed title insurance companies are competitors in the sale of title insurance to consumers in Ohio. Through OTIRB, Defendants 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 in Ohio, (ii) embed within these costs, payoff, kickbacks, and other charges that are unrelated to the issuance of title insurance or the business o[f] insurance, and (iii) hide these supposed "costs" from regulatory scrutiny by funneling them to and through title agents.

ถ 60. In the absence of proper regulatory authority and oversight, defendants' conduct constitutes a horizontal agreement to fix the form, structure, and prices of title insurance in Ohio and is a per se violation of Section 1 of the Sherman Act.

ถ 61. Defendants' price-fixing activity has been continuous throughout the relevant damages period and has been renewed and reinforced through OTIRB's submissions to the Ohio Department of Insurance of supposed cost and revenue information and its periodic submissions of rate changes.

ถ 62. Through their collective price-fixing and manipulation of the regulatory process, defendants have harmed competition by charging consumers supra-competitive prices for title insurance in Ohio.

ECF No. 36 at 3, 18-19.

These allegations clearly do not involve a party outside the rate-making process. The claims allege that only title insurance companies and their corporate parents or affiliates conspired to set title insurance rates. Also, the allegations clearly challenge rate-setting and price-fixing activities as those terms are used explicitly in the Complaint. Therefore, Plaintiffs' allegations are a direct challenge to the integrity of title insurers rate-making as well as Ohio's regulatory process that oversees the rate submission and approval process.

Additionally, Plaintiffs do not alleging a conspiracy or agreement between title insurers and their title agents or brokers. The conspiracy alleged by Plaintiffs is comprised of an agreement by title insurers and their corporate parents and affiliates^[36] to submit a rate to ODI, which becomes the legal filed rate in Ohio after review and non-disapproval. See O.R.C. ง 3935.04(c). Defendants' practice of setting rates as described by Plaintiffs is not a collateral agreement that would be outside the intended purpose of the Act as described in Royal Drug. See Royal Drug, 440 U.S. at 216-22, 99 S. Ct. 1067. Defendants' rate setting process involves only title insurers and ODI, who approves the rate for which Ohio consumers must pay. Because the Royal Drug Court found that the fixing of insurance rates is the "business of insurance," the undersigned follows the Supreme Court's guidance and finds that Defendants' rate setting activity is the same fixing of insurance rates as described by the Court in Royal Drug and is therefore the "business of insurance." Thus, all three Pireno criteria are satisfied.

2. Regulated by State Law

Plaintiffs argue that title insurance is not regulated by state law^[37] because it is not insurance, or because the State of Ohio insufficiently regulates title insurance. Having established above that title insurance is within the "business of insurance," the undersigned addresses the State of Ohio's regulation of the title insurance industry.^[38]

The State of Ohio has established a regulatory scheme that explicitly includes title insurance. See O.R.C. Ch. 3953 Title Insurance, Ch. 3935 Rating Bureaus. The Ohio Department of Insurance is mandated by statute to "review filings," not simply allowing for the non-disapproval of a submitted rate to equate to the approval of the rate. See O.R.C. ง 3935.04(C) ("The superintendent shall review filings as soon as reasonably possible after they have been made in order to determine whether they meet the requirements of sections 3935.01 to 3935.17 of the Revised Code.") (emphasis added).

The Sixth Circuit has explained that if a state regulates insurance, that is enough for the Act to apply and that "no satisfactory definition is to be derived from its legislative history." Ohio AFL-CIO v. Insurance Rating Bd., 451 F.2d 1178, 1181-82 (6th Cir.1971). The Sixth Circuit concluded that the test for whether the activity is regulated by state law is as follows:

It is well-established that the McCarran-Ferguson Act's "state regulation" requirement is satisfied by the general undertaking by a state to regulate the insurance industry. See Federal Trade Comm'n v. Nat'l Cas. Co., 357 U.S. 560, 78 S. Ct. 1260, 2 L. Ed. 2d 1540 (1958); Ohio AFL-CIO v. Ins. Rating Bd., 451 F.2d 1178 (6th Cir.1971), cert. denied, 409 U.S. 917, 93 S. Ct. 215, 34 L. Ed. 2d 180 (1972).

Owensboro Nat'l Bank v. Stephens, 44 F.3d 388, 397 (6th Cir.1994).

Based upon Ohio's statutory insurance scheme, which explicitly mandates the regulation of title insurance (as extensively explained above), the undersigned finds that Defendants' title insurance related activities as alleged by Plaintiffs are indeed regulated by Ohio state law.

3. Act of Boycott, Coercion, or Intimidation

During oral argument, Defendants advised the Court that the parties agree that Defendants' activities do not involve a boycott. ECF No. 95 at 85. Plaintiffs did not object to this statement nor does the Complaint or Opposition Memorandum make a claim of boycott. ECF No. 95 at 85. Similarly, there are no allegations regarding coercion or intimidation.

Therefore, the undersigned finds the final test for determining the applicability of the McCarran-Ferguson Act exemption is satisfied.

4. Applying the McCarran-Ferguson Anti-trust Exemption

Accordingly, the undersigned finds that Defendants' conduct is exempt from federal antitrust scrutiny pursuant to the McCarran-Ferguson Act because (1) Plaintiffs' claim attacks rate-making is within the quintessential business of insurance; (2) Defendants' conduct is regulated by state law; and (3) no boycott, coercion or intimidation is alleged. Furthermore, Plaintiffs acknowledge that they "challenge the defendants' collective price-setting of rates in the State of Ohio for title insurance as per se illegal price-fixing under federal and state antitrust laws." ECF No. 36 at ถ 1.

Therefore, the McCarran-Ferguson Act does, in this case, what Congress intended: allows the States of Ohio to exempt insurance companies from federal competition laws by enacting state regulations which may very well eliminate competition. See 15 U.S.C. ง 1011-1015. Accordingly, the undersigned finds the Complaint to fail to state a cause of action under ง 1 of the Sherman Antitrust Act because, taken as true, the allegations contained in the Complaint are exempt from federal antitrust scrutiny for the reasons provided above.

C. Complaint Fails to State a Claim that the Corporate Parent Defendants Engaged in Conspiratorial Behavior^[39]

At the threshold, it is important to recall that Section 1 of the Sherman Act "does not prohibit [all] unreasonable restraints of trade... but only restraints effected by a contract, combination or conspiracy." Twombly, 550 U.S. at 553, 127 S. Ct. 1955 (citations omitted). Regardless of which manner of collusion is alleged, "`[t]he crucial question' is whether the challenged anticompetitive conduct `stem[s] from independent decision or from an agreement, tacit or express.'" Id. (citations omitted). Plaintiffs' Complaint fails to establish this element relative to the corporate parent defendants because it does not sufficiently allege any concerted action on their part. Rather, the alleged conspiratorial behavior, as pled, is directly attributed to the subsidiaries or affiliates of the corporate parent defendants. Specifically, Plaintiffs allege that each of the parent corporations "approved" or "assented to" their affiliates' or subsidiaries' actions by virtue of their ownership relationship. See ECF No. 36 ถถ 12, 14. 16, 18, 20. Plaintiffs pled no additional facts regarding how or when each of the corporate parent's agreed to or participated in the alleged conspiracy.^[40] This is problematic.

First, "[i]t is a general principle of corporate law deeply `ingrained in our economic and legal systems' that a parent corporation (so-called because of control through ownership of another corporation's stock) is not liable for the acts of its subsidiaries." U.S. v. Bestfoods, 524 U.S. 51, 61, 118 S. Ct. 1876, 141 L. Ed. 2d 43 (1998) (citations omitted); see also Cupp v. Alberto-Culver USA, Inc., 310 F. Supp. 2d 963, 974 (W.D.Tenn.2004) (applying Bestfoods to Sherman ง 1 and stating "mere existence of a corporate relationship [does not] implicate a parent in its subsidiary's actions."). Therefore, Plaintiffs cannot successfully rely only on the parent corporations ownership interest in their title company subsidiaries to sustain a ง 1 claim against the corporate parent defendants.

Second, a parent and its subsidiaries or affiliates are not legally capable of conspiring with each other for purposes of ง 1 of the Sherman Antitrust Act.^[41] The coordinated behavior of a parent and its wholly owned subsidiary must be viewed as that of a single enterprise for purposes of ง 1 of the Sherman Act.^[42]Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984). The Copperweld Court explained that "there can be little doubt that the operations of a corporate enterprise organized into divisions must be judged as the conduct of a single actor." Id. at 770, 104 S. Ct. 2731. By contrast, an agreement under the Sherman Act must be between separate, independent entities capable of combining their efforts to restrain trade. Id. at 769-771, 104 S. Ct. 2731. Under Copperweld, Plaintiffs cannot base their ง 1 conspiracy claim solely on an agreement between a corporate parent defendant and any of its affiliates or subsidiaries.^[43] "Thus, to state a claim against parent corporations, Plaintiffs must allege facts establishing the corporate parent corporations' direct and independent participation in the alleged conspiracy." In re Pennsylvania Title Ins. Antitrust Litig., 648 F. Supp. 2d 663, 688; see also McCray, 636 F.Supp.2d at 334 (requiring for "claim against a parent corporation... [allegations of] facts sufficient to infer... direct involvement"); In re Pressure Sensitive, 566 F. Supp. 2d 363, 375-77 (M.D.Pa.2008) (finding insufficient allegations that parent corporation participated in antitrust conspiracy on it own, even though Court found sufficient allegations that subsidiary did participate); Nobody in Particular Presents, Inc. v. Clear Channel Commc'ns, Inc., 311 F. Supp. 2d 1048, 1068-69 (D.Colo.2004) ("Absent allegations or evidence of `independent conduct' on the part of the parent, there is no basis upon which to hold a parent directly liable for the acts of a subsidiary.")

In determining whether a complaint stated a claim under ง 1 of the Sherman Act, in Twombly, the Supreme Court held that "stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made." Twombly, 550 U.S. at 556, 127 S. Ct. 1955. The Twombly Court further explained that "a naked assertion of conspiracy in a ง 1 complaint: [] gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility an plausibility of `entitle[ment] to relief.'" Id. at 557, 127 S. Ct. 1955 (holding, among other things, that "a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality"). Despite Plaintiffs' statement to the contrary, the Complaint does not "specifically allege[ ] that ORI [or any other corporate parent defendant] agreed to its subsidiary's participation with non-related entities in the conspiracy." ECF No. 64 at 39 (emphasis added).

Plaintiffs appear to acknowledge the Complaint's lack of detailed allegations regarding the alleged conspiracy and rely on the "slight evidence rule" to make up the difference. See ECF No. 64 at pp. 25-26. According to Plaintiffs, the slight evidence rule is applicable after a conspiracy has been established. Id. Then, only slight evidence is needed to connect a particular participant to the overall conspiracy. Id. Even if the slight evidence rule were applicable, it insufficient in the instant case wherein the conspiracy itself is precariously premised on Defendants' participation in a lawfully created trade association such as OTIRB and actions sanctioned by Ohio's insurance law. Additionally, the problem is not merely the Complaint's lack of detail but, more importantly, Plaintiffs' patent failure to allege facts constituting a conspiracy or agreement involving the parent corporation defendants based upon facts other than the business relationship with their title insurance subsidiary or affiliate.

That Plaintiffs were provided discovery on this very issue prior to responding to the motion to dismiss, punctuates' their failure to meet this benchmark. See ECF No. 52; See e.g., ECF No. 65 at 3 n. 1 (explaining discovery ORI provided to Plaintiffs). "Asking for plausible grounds to infer an agreement... simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." Twombly, 550 U.S. at 556, 127 S. Ct. 1955. Bare allegations such as those against the parent corporations are models of those Twombly sought to weed out.

The Complaint fails to independently link the parent corporations to the alleged conspiracy and therefore fails to establish the threshold element required by ง 1 of the Sherman Act that the corporate parent defendants engaged in anti-competitive conduct by virtue of contract, combination or conspiracy. Even viewing Plaintiffs' allegations of "`approval and assent' and `ownership and control' in a light most favorable to Plaintiffs, as the [C]ourt must for the purposes of th[e pending] motion, these allegations amount to nothing more than conduct `typical of any parent and subsidiary.'" In re Pennsylvania Title Ins. Antitrust Litigation, 648 F. Supp. 2d 663, 689. Mere acquiescence in a subsidiary's conduct does not amount to coordinated or conspiratorial activity. Id. (citations omitted). Plaintiffs allege that the anti-competitive behavior was committed by the subsidiary and attributed to the parent "through its subsidiar[y]" without alleging any connection or contract between the corporate parent defendant or any other alleged co-conspirator, including the Rating Bureau (OTIRB). See ECF No. 36 at ถถ 12, 14, 16, & 18.^[44] Plaintiffs acknowledge that the title insurance defendants, not their corporate defendant parents, "are members of the OTIRB and have charged title insurance rates in Ohio that OTIRB and the defendant title insurers collectively set." ECF No. 36 at ถถ 11, 13, 15 & 17. Plaintiffs do not allege facts to show that the corporate parent defendants knew what their subsidiaries were doing. Such thin allegations fail to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S. Ct. 1955.

Because the Complaint fails the Twombly standard relative to the corporate parent defendants, Plaintiffs have failed to set forth a claim for relief. Consequently, the Sherman Act claim (Count One) against the parent corporation defendants should be dismissed. The Valentine Act claim is based upon the same allegations as the Sherman Act claim. As earlier stated, the Valentine Act was patterned after the Sherman Act and federal law treats Ohio's Valentine Act parallel to the Sherman Act, "and as a consequence this court has interpreted the statutory language in light of federal construction of the Sherman Act." C.K. & J.K, Inc. v. Fairview Shopping Center Corp., 63 Ohio St. 2d 201, 204, 407 N.E.2d 507 (1980). Accordingly, where a plaintiffs claim under the Sherman Act fails, courts have also held that a plaintiff's Valentine Act claim (Count Two) fails as well.^[45]Invacare Corp. v. Respironics, Inc., 2006 WL 3022968 at *13 (N.D.Ohio 2006) (citing Richter Concrete Corp. v. Hilltop Basic Res., 547 F. Supp. 893, 920 (S.D.Ohio 1981), aff'd, 691 F.2d 818 (6th Cir.1982)). For the reasons set forth herein, the Valentine Act claim (Count Two) should also be dismissed as to the corporate parent defendants.

As stated above, only ORI, filed motion to dismiss on the ground of failure to allege a conspiracy on behalf of the corporate parent defendants. For the reasons provided above, the undersigned finds that ORI's motion has merit and recommends that it (ECF No. 41) be granted. Because Plaintiffs' claims against the remaining corporate parent defendants cannot succeed for the same reasons they fail as to ORI, the undersigned recommends the sua sponte dismissal of the Complaint against the remaining corporate parent defendants, to wit: Fidelity National Financial, First American Corporation, Stewart Information Services Corporation and LandAmerica Financial Group, Inc.^[46]

VI. Conclusion and Recommendation

Thus, for reasons provided in greater detail above, the undersigned recommends: (1) GRANTING Defendants' Joint Motion to Dismiss relative to Counts One and Two of the Complaint, ECF No. 43, without prejudice. (2) GRANTING Old Republic International Corporation's motion to dismiss for failure to state a claim (ECF NO. 41), without prejudice, and, applying the same legal logic, (3) GRANING the sua sponte dismissal of all other corporate parent defendants, with the exception of LandAmerica Financial Group, Inc. against whom all matters are stayed due to bankruptcy.^[47] The remaining motion (ECF No. 40) to dismiss should be denied as moot.

"Without prejudice" dismissals would permit Plaintiffs an opportunity to (once again) modify the Complaint in order to present a prayer for non-rate-related injunctive relief that might survive the Filed Rate Doctrine relative to all Defendants other than the corporate parent defendants. Regarding, the corporate parent defendants, a without prejudice dismissal would permit the Plaintiffs to amend the Complaint to meet the Twombly/Iqbal standard, if possible.

NOTES

[1] There are eight cases in all, with the lead case filed on March 18, 2008. (See Case No. 1:08CV677, Doc. No. 1 Class Action Complaint.) The other cases are: 1:08CV678, 1:08CV741, 4:08CV750, 1:08CV803, 1:08CV1021, 5:08CV1289, 1:08CV1836. Originally assigned to the dockets of numerous judges in the Northern District of Ohio, the cases were eventually transferred to the docket of the Hon. David D. Dowd, Jr. The cases were consolidated on July 11, 2008, and Plaintiffs' Consolidated Class Action Complaint was filed on July 31, 2008. Following Judge Dowd's recusal on February 2, 2010, these consolidated cases were reassigned to the undersigned's docket. All docket references are to the lead case: 1:08CV677.

[2] Stewart brings its motion under Rule 12(b)(2), while Old Republic relies upon Rule 12(b)(2), (3), and (6). Because the Court's ruling is largely guided by its application of Rule 12(b)(6), the Court will not devote space to setting forth the standards for the other relevant provisions of Rule 12.

[3] Interchangeably referred to by courts as the Keogh doctrine, or the filed tariff doctrine.

[4] Cf. Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051 (1945). The Reed-Bulwinkle Act was enacted at least in part in response to Georgia v. Pennsylvania R. Co., 324 U.S. 439, 65 S. Ct. 716, 89 L. Ed. 1051 (1945). In Pennsylvania R. Co., the Supreme Court restated Keogh and held that, "although Georgia could not maintain a suit under the antitrust laws to obtain damages, it could obtain injunctive relief against the collective ratemaking procedures employed by the railroads." Square D, 476 U.S. at 418, 106 S. Ct. 1922. The Reed-Bulwinkle Act created an absolute immunity from the antitrust laws for certain specific activities, including the one at issue in Pennsylvania R. Co., and thereby superseded that holding. Square D rejected the contention that Keogh "was implicitly rejected in the Reed-Bulwinkle Act" and rather held that "[p]articularly because the legislative history reveals clear congressional awareness of Keogh, far from supporting petitioners' position, the fact that Congress specifically addressed this area and left Keogh undisturbed lends powerful support to Keogh's continued viability." Id. at 419, 106 S. Ct. 1922.

[5] Thus, the filed rate doctrine is different than the State Action Doctrine, sometimes called the Parker State Action Doctrine, which holds that state-mandated or state-directed restraints are exempted from antitrust liability, see Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943), and the Noerr-Pennington Doctrine, which immunizes from antitrust liability those who petition the federal or state government to take actions that may impose restraints on trade. See, e.g., Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961).

[6] Although it may in certain circumstances, as discussed infra.

[7] As noted by the Magistrate Judge in her Report and Recommendation (Doc. No. 102 at 18-19), federal courts have long applied the Filed rate doctrine to a wide spectrum of insurance actions. See, e.g., Rios v. State Farm Fire & Cas. Co., 469 F. Supp. 2d 727, 737 (S.D.Iowa 2007) (applying filed rate doctrine to common law claim seeking return of insurance premiums); Mullinax v. Radian Guar. Inc., 311 F. Supp. 2d 474, 484 n. 6 (M.D.N.C. 2004) (filing of rate by defendant with state Department of Insurance bars plaintiffs from challenging reasonableness of those rates); Kirksey v. Am. Bankers Ins. Co., 114 F. Supp. 2d 526, 529 (S.D.Miss.2000) (applying filed rate doctrine to common law claim seeking return of insurance premiums); Stevens v. Union Planters Corp., 2000 WL 33128256, at *3 (E.D.Pa. Aug. 22, 2000) (allegation of kickbacks in forced hazard insurance scheme barred by filed rate doctrine); Allen v. State Farm Fire & Cas. Co., 59 F. Supp. 2d 1217, 1229 (S.D.Ala.1999) (filed rate doctrine barred claim challenging unlawfulness of rate filing by insurance company); Korte v. Allstate Ins. Co., 48 F. Supp. 2d 647, 651 (E.D.Tex. 1999) (applying filed rate doctrine to claim asserting insurance rates improper due to submission by defendant of illegal subsidy factor accounts to state insurance regulator because state agency determined reasonable rates pursuant to statutory scheme); Morales v. Attorney's Title Ins. Fund, Inc., 983 F. Supp. 1418, 1429 (S.D.Fla.1997) (dismissing plaintiffs' kickback claim against title insurer pursuant to filed rate doctrine because claim was nothing more than challenge to title insurance rates set by state regulators); Calico Trailer Mfg. Co., Inc.v. Ins. Co. Of N. Am., 1994 WL 823554 at *6 (E.D.Ark. Oct. 12, 1994) (filed rate doctrine barred plaintiffs' challenge to insurance rates as inflated as result of conspiracy among defendant insurance companies).

[8] The Court notes that the Plaintiffs' theory that lower prices would necessarily result absent the asserted `antitrust violations' is by no means a certainty. See, e.g, Scott Harrington, Competition and Health Insurance, WALL STREET J., Nov. 6, 2009 (analyzing recent Congressional proposals to remove antitrust exemptions in the healthcare insurance industry and suggesting that, contrary to popular belief, prohibiting collaboration between insurers might actually cause premiums to increase rather than fall).

[9] The court in Wileman Bros. also suggested that, although it could not consider it on a motion to dismiss, "evidence of participation [in the non-disapproval process] by representatives of the Secretary" might suffice to apply the Filed rate doctrine.

[10] Indeed, approval by the superintendent is clearly what the statute comprehends: "[. . .] the superintendent may authorize a filing which he has reviewed to become effective before the expiration of the waiting period." ง 3935.04(D).

[11] Available at http://www.insurance.ohio. gov/Legal/Bulletins/Documents/91-1.pdf.

[12] This Court granted Plaintiffs' request to conduct limited discovery on October 15, 2008. (Doc. No. 52.) Pursuant to this order, Plaintiffs deposed Maureen Motter, a representative of the Ohio Department of Insurance. (Transcript at Doc. No. 77-2.) While Defendants support this contention with the deposition testimony of Ms. Motter, this Court has not relied in any manner on Ms. Motter's testimony in reaching its consideration of the effect of Bulletin 91-1 on Plaintiffs' claims.

[13] Chapter 3937 of the Ohio Code addresses Casualty and Motor Vehicle Insurance. Section 3937.03(B) provides that an insurer "may satisfy its obligation to make such filings [to the Department of Insurance] by becoming a member of, or subscriber to, a licensed rating organization [. . .]." OHIO REV. CODE ง 3937.03(B). Other than the substitution of the entity name, i.e, "licensed rating organization" for "licensed rating bureau," ง 3937.03(B) is identical to ง 3935.04(B).

[14] The Court notes that in both Barnes and Chesner, the fraud claims were dismissed because plaintiffs failed to allege fraud with the requisite particularity as required by Rule 9(b).

[15] This is an important, and nonobvious, distinction. Success by the Barnes and Chesner plaintiffs would not have resulted in the alteration of the rate paid by plaintiffsโ€”the rate would have remained fully intact. Damages would have been calculated by determining the difference between the two approved filed rates, but recovery would have been premised on the fraudulent failure to disclose the availability of the separate, lower rate at the time of purchase, and not on some flaw in the establishment of the rate paid.

[16] Pinney Dock required the Sixth Circuit to determine whether the Filed rate doctrine applies when the plaintiff is defendant's competitor, rather than customer, an issue over which the Courts of Appeal are not in accord but not implicated by this case. Cf. Arsberry v. Illinois, 244 F.3d 558 (7th Cir.2001) (doctrine may bar claims by non-purchasing competitors) with In re Lower Lake Erie Iron Ore Antitrust Litig., 998 F.2d 1144 (3d Cir. 1993) (applying non-purchasing competitor exception).

[17] "Such `obey the law' injunctions cannot be sustained." EEOC v. Wooster Brush Co. Employees Relief Ass'n, 727 F.2d 566, 576 (6th Cir. 1984) (citing Payne v. Travenol Laboratories, Inc., 565 F.2d 895, 897-98 (5th Cir.)).

[18] Of course, application of the "impairment clause" to the state statutes at issue would not change the result. A federal law does not impair, invalidate, or supersede a state regulation where the "federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a state's administrative regime [. . .]." Humana, 525 U.S. at 310, 119 S. Ct. 710. See Brown v. Cassens Transport Co., 546 F.3d 347, 362 (6th Cir.2008). To demonstrate impairment, it must be shown that substantive sections of the State regulations will be invalidated, Kenty, 92 F.3d at 392, or that it will render the State law ineffective, Brown, 546 F.3d at 362. Here, there can be no question that application of the Sherman Act will substantially impair Ohio's regulatory framework governing title insurance by invalidating those portions of the regulationsโ€”including Ohio Rev.Code ง 3935.04 and ง 3935.06โ€”that permit the submission of filed rates through rating bureaus. Such an application would surely frustrate the declared state policy of permitting such cooperation.

[19] The court gave weight to the government's contention that buying escrow services is separate from buying title insurance because some people who buy escrow services do not buy title insurance, those who buy both have two separate agreements, and searches are performed by agents who keep the entire fee. Id. at 1252.

[20] Specifically, the Court found that "[a] title insurance policy insures against certain losses or damages sustained by reason of a defect in title not shown on the policy or title report to which it refers [. . .]. The insured is protected from some losses resulting from title defects not discoverable from a search of the public records, such as forgery, missing heirs, previous marriages, impersonation, or confusion in names [. . .]. Title insurance also includes the obligation to defend in the event that an insured is sued by reason of some defect within the scope of the policy's guarantee." Id. at 625-26, 112 S. Ct. 2169.

[21] Plaintiffs erroneously claim that this decision stands for the contrary position that more than minimal risk spreading is required. In SEC, the Court found that the issuance of variable annuities did not constitute the business of insurance because it did not involve the spreading of any risk. Id. at 71, 79 S. Ct. 618.

[22] The process of minimizing or limiting risk by a pre-issuance investigation is not unique to title insurance. Life insurance policies are issued only after the insurer knows, generally by means of a pre-issue physical examination, the risk associated with insuring the prospective insured. If the physical examination reveals that the risk is too great, the policy will not issue. Similarly, if the title search reveals a significant potential cloud on the title, the title insurance policy may not issue.

[23] At oral argument, Plaintiffs attempted to draw the distinction between "rate-setting" and "rate-making." Plaintiffs argued that "rate-making" is the process by which insurers are supposed to share information with the rating bureau (TR at 52-53), whereas "rate-setting" is the process of actually fixing insurance rates. While Plaintiffs admit that pooling statistical information is exempt under the Sherman Act, they claim that when courts speak of the "business of insurance" as an exemption, they are really speaking of what Plaintiffs refer to as rate-making. The Court rejects this distinction because the case law clearly exempts the fixing of insurance rates from the Sherman Act. See Royal Drug, 440 U.S. at 224 n. 32, 99 S. Ct. 1067.

[24] Section 3(b) of the McCarran-Ferguson Act also makes clear that the Act should not be read to immunize from federal antitrust liability "any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation." 15 U.S.C. ง 1013(b). This provision is inapplicable because Plaintiffs do not allege a cognizable antitrust boycott.

[25] In its entirety, ง 1.51 reads:

If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.

OHIO REV.CODE ANN. ง 1.51.

[26] Later amended to June 30, 1948.

[27] Indeed, Plaintiffs themselves cite to an example of an insurance company "not a party to Defendants' price-fixing agreement," Entitle Direct Insurance, that allegedly offers lower prices than Defendants.

[28] The Court finds that the dismissal of the corporate parent Defendants should also be with prejudice. The Magistrate Judge correctly determined that a corporate parent Defendant could not be liable under the Sherman Act merely for approving or assenting to the actions of its affiliate or subsidiary. See Cupp v. Alberto-Culver USA, Inc., 310 F. Supp. 2d 963, 973-74 (W.D.Tenn.2004). She recommended that these defendants be dismissed, without prejudice, for this additional reason. Because Plaintiffs have not alleged any facts that would suggest that the corporate parent Defendants played a role in any alleged conspiracy, the Court finds that it would be futile to permit Plaintiffs leave to attempt to re-plead a cause of action against them.

[1] The Complaint alleges the Court has jurisdiction over the state law claim pursuant to the recently enacted Class Action Fairness Act of 2005 ("CAFA") codified at 28 U.S.C. ง 1332(d). ECF No. 36 at ถ 8. CAFA expanded federal jurisdiction over putative class actions lawsuits in which the amount in controversy exceeds $5 million. More specifically, in the context of such lawsuits, CAFA relaxed the complete diversity requirement in favor of "minimal diversity," requiring only that one plaintiff class member be diverse from one defendant. 28 U.S.C. ง 1332(d)(2). Mindful of its obligation to determine whether the Court would retain jurisdiction of the state law claim after dismissal of the federal claim, the undersigned found no CAFA exceptions to be a bar to jurisdiction. See also note 23, infra.

[2] See In re Industrial Life Insurance Litigation, 148 F. Supp. 2d 719, 722 (E.D.La.2001) (finding that neither the filed rate doctrine nor the McCarran-Ferguson Act erect jurisdictional bars and distinguishing, on other grounds, Dana Corp. v. Blue Cross & Blue Shield Mutual of Northern Ohio, 900 F.2d 882, 888 (6th Cir.1990) (affirming denial of 12(b)(1) motion for lack of jurisdiction) as not having a McCarran-Ferguson issue and merely turning on questions related to Ohio administrative process while vaguely mentioning the Act); Phelps v. Nationwide Ins. Co., 37 Fed.Appx. 752, 753 (6th Cir.2002) (finding the McCarran-Ferguson Act does not provide an independent basis for federal jurisdiction); Equal Employment Opportunity Commission v. Wooster Brush Co., 1980 WL 279, *1-2 (N.D.Ohio Nov. 25, 1980) (finding motion to dismiss for lack of subject matter jurisdiction pursuant to 12(b)(1) was mischaracterized given that dismissal pursuant to the McCarran-Ferguson act is merit-based, not jurisdictional so recharacterized as a 12(b)(6)).

[3] Defendants only mentioned "12(b)(1)" once in their otherwise thorough pleadings. See ECF No. 43 at 8. Even then no standard of review was suggested, creating the impression that Defendants are not firmly wedded to a 12(b)(1) dismissal.

[4] If the dismissal is granted without prejudice, as recommended, opportunities for injunctive relief may survive as discussed in greater detail below.

[5] Case law is silent as to the file rate doctrine's effect on prayers for declaratory relief. Logic, however, dictates that the filed rate doctrine applies to filed rates not those which have not yet been filed, i.e. those to be filed in the future. See also note 33, infra.

[6] Judge Dowd consolidated the following cases: 1:08-CV-00678, 1:08-CV-00741, 4:08-CV-00750, 1:08-CV-00803, 1:08-CV-01021, 5:08-CV-01289, and 1:08-CV-01836. See ECF No. 37. Civil action 1:08-CV-677 is the Lead Case. See ECF No. 37.

[7] Specifically, Plaintiffs have named the following title insurance companies as defendants: Fidelity National Title Insurance Company, Chicago Title Insurance Company, Ticor Title Insurance Company, Security Union Title Insurance Company, Ticor Title Insurance Company of Florida, First American Title Insurance Company, United General Title Insurance Company, Ohio Bar Title Insurance Company, Port Lawrence Title and Trust Company, T.A. Title Insurance Company, Censtar Title Insurance Company, Commonwealth Land Title Insurance Company, Lawyers Title Insurance Corporation, Transnation Title Insurance Company, Stewart Title Guaranty Company, National Land Title Insurance Company, and Old Republic National Title Insurance Company. The parent corporation Defendants are Fidelity National Financial, Inc. (ถ 12), First American Corporation (ถ 14), Land America Financial Group, Inc.(ถ 16), Stewart Information Services Corporation (ถ 18), and Old Republic International Corporation (ถ 20).

[8] In Ohio, title insurers are permitted to become members of a rating bureau in order to submit rates to ODI for approval. O.R.C. ง 3935.04(B). Ratings Bureaus are licensed by ODI and membership is not required. O.R.C. งง 3935.04 & 3953.28. A rating bureau submits rates on behalf of its members for approval by ODI and must charge only those rates approved by ODI, which become the filed rate. O.R.C. งง 3935.04 & .07.

[9] In light of the undersigned's recommendation of dismissal of the entire matter on other grounds, it unnecessary to rule upon the challenges to personal jurisdiction and venue, i.e., the 12(b)(2) and (3) motions. See Weber v. National Football League, 112 F. Supp. 2d 667, 671 (N.D.Ohio 2000)(dismissing Sherman Act claims under Fed. R. Civ.P. 12(b)(6) and noting that "it would be premature to examine the ... defendants' objections to jurisdiction and venue of those claims without first making a determination of whether plaintiff has stated a claim under antitrust statutes in the first instance").

[10] As noted above, all other motions to dismiss, e.g. Stewart Information Services Corporation's motion to dismiss for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2) and ORI's motions pursuant to 12(b)(2) and (3) should be denied as moot, given the undersigned recommendations of dismissals on other grounds. See ECF No. 40.

[11] In Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1953, 173 L. Ed. 2d 868 (2009), the Supreme Court made it clear that "[o]ur decision in Twombly expounded the pleading standard for `all civil actions,' and it applies to antitrust and discrimination suits alike."

[12] As explained above, the undersigned believes the 12(b)(1) to be a mischaracterization. Nevertheless, out of an abundance of caution, the standard of review pursuant to 12(b)(1) is provided. The standard of review for a facial challenge such as that mounted in the instant case, essentially mirrors that of a 12(b)(6) motion.

[13] At oral argument, defense counsel agreed that its joint Rule 12(b)(1) motion presents a facial rather than factual attack on the Complaint. ECF No. 95 at 79 lines 6-7 ("In either case, we're looking just at the face of the pleadings.") (Attorney Coleman).

[14] Regarding a 12(b)(1) motion, a conversion to a factual attack would eliminate the presumptive truthfulness which otherwise attaches to Plaintiffs' allegations and permit evidence to be weighed in order to resolve factual disputes. See Wenz v. Rossford Ohio Transp. Improvement Dist., 392 F. Supp. 2d 931, 934 (N.D.Ohio 2005). Although the Rule 12(b)(1) standard of review permits (under certain circumstances) the Court to resolve factual disputes, that opportunity is something the undersigned finds unnecessary in the instant case and notes that the task was not requested by either party, given that Plaintiffs' posed no objection either orally or in writing to Defendants' prescribed limited use of its attached Exhibits.

[15] Regarding the motion for dismissal due to the McCarran-Ferguson Act, the undersigned notes that Plaintiffs' references to the Motter Deposition (although not exclusively) are focused on her testimony about Bulletin 91-1, a document publicly available. And, as Plaintiffs' indicate, Bulletin 91-1 speaks for itself. See ECF 77 at 34 n. 26.

[16] Although first applied to an antitrust case in Keogh, the origin of the filed rate doctrine can be traced back to the Supreme Court's ruling in Texas & Pacific Railway v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S. Ct. 350, 51 L. Ed. 553 (1907) in which the Court addressed the issue of whether a shipper could maintain a common law action for damages against a common carrier for "the exaction of an alleged unreasonable rate, although the rate collected and complained of was the rate stated in the schedule filed with the Interstate Commerce Commission." Id. at 436, 27 S. Ct. 350. The Court reasoned that the existence of the shipper's right to recover damages due to the unreasonableness of the established rate was "wholly inconsistent with the administrative power conferred upon the [ICC], and with the duty, which the [Interstate Commerce Act] casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed." Id. at 440-41, 27 S. Ct. 350.

[17] In the instant matter, the rates Plaintiffs complain of are the only rates Defendants are permitted to charge, given they are the only filed rates. See O.R.C. ง 3935.04(H).

[18] Recognizing the "powerful role" of an award of treble damages, the Supreme Court has acknowledged that "[t]he treble damages provision wielded by the private litigant is a chief tool in the antitrust enforcement scheme, posing a crucial deterrent to potential violators. [ ] Granting this role its due respect, however, a critical distinction remains between an absolute immunity from all antitrust scrutiny and a far more limited nonavailability of the private treble-damages remedy." Square D Co., 476 U.S. at 422 n. 28, 106 S. Ct. 1922 (internal citations and quotations omitted).

[19] Such cases include the following. See e.g., Texas Commercial Energy v. TXU Energy, Inc., 413 F.3d 503 (5th Cir.2005) (doctrine barred both state and federal antitrust claims based on rates filed with a state regulatory agency); Coll v. First Am. Title Ins. Co., No. CIV 06-348, Dkt. No. 141 (D.N.M. Apr. 21, 2008) (doctrine barred state law claims based on title insurance rates filed with a state insurance department) (ECF 43-2); Fersco v. Empire Blue Cross/Blue Shield of New York, 1994 WL 445730 (S.D.N.Y. Aug. 17, 1994) (doctrine barred both state and federal claims based on rates filed with a state insurance department); Amundson & Assocs. Art Studio, Ltd. v. National Council on Compensation Ins., 26 Kan. App. 2d 489, 988 P.2d 1208 (1999) ("filed rate" doctrine barred claim based on insurance rates filed with state agency); N.C. Steel, Inc. v. Nat'l Council on Comp. Ins., 347 N.C. 627, 496 S.E.2d 369 (N.C.1998) (adopting "filed rate" doctrine under North Carolina law; complaint was that insurers withheld information from regulator, forcing plaintiffs to pay more for insurance); Minihane v. Weissman, 226 A.D.2d 152, 640 N.Y.S.2d 102 (N.Y.App.Div.1996); Prentice v. Title Insurance Co., 176 Wis. 2d 714, 500 N.W.2d 658 (Wis.1993), cert. Denied, 510 U.S. 1113, 114 S. Ct. 1058, 127 L. Ed. 2d 378 (1994) (doctrine barred state law antitrust claim based on rates filed with a state insurance department); Teleconnect Co. v. U.S. West Commc'ns, Inc., 508 N.W.2d 644, 648-649 (Iowa 1993) (similar).

[20] See Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979 (9th Cir.2000) (finding, with respect to state antitrust law and rate filed before state agency, question of filed rate immunity is purely one of state law); in this case, California recognized a narrower immunity than federal law does; following Cellular Plus, Inc. v. Superior Court, 14 Cal. App. 4th 1224, 18 Cal. Rptr. 2d 308 (1993) (refusing to follow Keogh and Square D and finding that denying standing would "implicitly ... encourage[] regulated companies to engage in anticompetitive price fixing activities.")

[21] The undersigned has not found, nor have Defendants or Plaintiffs cited, any Ohio court applying the filed rate doctrine to Ohio's title insurance regime.

[22] Cf. Barnes v. First Am. Title Ins. Co., 2006 WL 2265553 (N.D.Ohio 2006), and Chesner v. Stewart Title Guaranty Co., 2006 WL 2252542 (N.D.Ohio 2006) are both cases in which defendant title insurance companies unsuccessfully tried to defeat allegations of constructive fraud by retorting that the filed rate doctrine "creates a presumption of knowledge of the rate filed and discount rate by the consumer" satisfying the defendant's need to "disclose the availability of the discount rate in the filing of its rate manual." Barnes, 2006 WL 2265553 at *7; Chesner, 2006 WL 2252542 at *7. The court declined to apply the filed rate doctrine. Neither Barnes or Chesner are persuasive or binding authority over this Court. To the extent either decision regards the filed rate doctrine, both Barnes and Chesner relies on a decision that (even at the time those decisions were rendered) had no precedential value given that it had been vacated after the district court realized it did not have jurisdiction. See Zangara v. Travelers Indemnity Co. of Am., 423 F. Supp. 2d 762, 776, vac'd by 2006 WL 825231 (N.D.Ohio). Moreover, to the extent either Barnes or Chesner is mistaken as serving as an important datum of this District's law, the undersigned notes that both cases narrowly restricted the application of the filed rate doctrine, in direct contradiction to the Sixth Circuit's ruling in Pinney Dock wherein the Sixth Circuit explicitly states that it does "not believe that either Keogh or Square D was intended to be limited solely to antitrust damage claims brought by shippers." Pinney Dock, 838 F.2d at 1456 (foretelling the possible application of the filed rate doctrine to non-shipper related antitrust matters).

[23] Because Count Two presents a state antitrust statute challenge to a state-regulated title insurance rate, a matter of first impression for this Circuit. The undersigned presents without recommending, that the Court stay the ruling on the entire matter pending certification to the Ohio Supreme Court the questions of (1) Whether the Filed Rate Doctrine applies to Ohio's Title Insurance [ ] regime and/or (2) Whether the Filed Rate Doctrine applies to a state antitrust challenge to a rate regulated by state law. The prospect of certifying the broad question of the applicability of the Filed Rate Doctrine to the Ohio Supreme Court was raised by Judge Dowd on June 24, 2008 during a case management conference wherein all parties were represented. At that time, Bruce Cohen, counsel for Plaintiff Mintz, and Deborah Coleman, designated Defense Counsel Liaison agreed that the Valentine Act is interpreted consistently with the Sherman Act. ECF No. 33 Tr. at 23-24 (Lapatine, counsel for First American Corp.). And, attorney Cohen added that he did not think certification to the Ohio Supreme Court necessary in this case. ECF No. 33 Tr. at 24 ("I don't think it's necessary here, Your Honor. I think this [C]ourt is certainly competent to rule on a matter like that in the context of a Sherman Act case."). Because (as discussed above) CAFA confers diversity jurisdiction, the Court has no basis to "decline supplemental jurisdiction" of the Count Two, the state antitrust claim, upon dismissal of Count One, unless the class status of the Plaintiffs were at issue, making it unlikely that Plaintiffs could maintain a diversity action.

[24] See ECF No. 99 (Letter dated June 22, 2009 from Plaintiff's counsel, Daniel B. Allanoff) (urging that the application of the Filed Rate Doctrine hinges on meaningful review of rate filings); see also ECF No. 97 (Letter from Allanoff dated July 20, 2009) (citing McCray, 636 F. Supp. 2d 322 (same)).

[25] Recognizing the strength of the Keogh decision, the Square D Court noted "[s]tare decisis is usually the wise policy because in most matters, it is more important that the applicable rule of law be settled than that it be settled right." Square D Co., 476 U.S. at 424, 106 S. Ct. 1922 (quoting Justice Brandieis a decade after his Keogh decision). Similarly, that Court recounted that [m]ore than any other doctrine in the field of precedent, "[stare decisis] has served to limit the freedom of the court." Id. at n. 34, 106 S. Ct. 1922 (quoting Levi, An Introduction to Legal Reasoning, 15 U.Chi.L.Rev. 501, 540 (1948)).

[26] In Randleman, albeit in dicta, another branch of this Court characterized Ohio's title insurance scheme as "Comprehensive" in deciding that the Court had jurisdiction over Plaintiffs' claims. Randleman v. Fidelity Nat'l Title Ins., 465 F. Supp. 2d 812, 817 (N.D.Ohio 2006).

[27] Each defendant except the corporate parent defendants "submits its title insurance rates collectively through OTIRB." ECF No. 36 ถ 40.

[28] Plaintiffs' also rely on Hanson v. Acceleration Life Ins. Co., 1999 WL 33283345 (D.N.D. Mar. 16, 1999) (finding that statutory language was inconsistent with the establishment of a filed rate obviating the application of the filed rate doctrine).

[29] The Ninth Circuit has declined to apply the doctrine if the rates to be challenged resulted from unlawful activity prior to the filing. See e.g., Brown v. Ticor Title, 982 F.2d at 394; Blaylock, 504 F.Supp.2d at 1102.

[30] Bulletin 91-1, which Plaintiff's concede in legally non-binding, is publicly available online. ECF 77 No. at 10 ("In any case regardless of whether Bulletin 91-1 is legally binding on OTIRB ..."). See http://www.insurance.ohio.gov/ Legal/Bulletins/Pages/BulletinIndex.aspx; ECF No. 77-2.

[31] See New England Health Care Employees Pension Fund, 336 F.3d 495, 501 (6th Cir. 2003) (in ruling on a Rule 12(b)(6) motion courts may consider materials beyond the complaint "if such materials are public records or are otherwise appropriate for the taking of judicial notice."); see also F.R.E. 201(c) ("A court shall take judicial notice, whether requested or not."). Because this title insurance related document is integral to Plaintiffs' allegations, the Court takes judicial notice. Defendants have not objected to Plaintiffs' introduction of Bulleting 91-1 nor challenged its authenticity. The lack of objection from Defendants satisfies any concern the undersigned might have had regarding its reliance on the proffered document which is obviously integral to Plaintiffs' allegations of Defendant's non-compliance with Ohio's title insurance laws. The proffered document may also be admissible as a public record.

[32] Paragraph 29 augurs the discriminatory damages award the filed rate doctrine was created to prevent. ECF No. 36 ถ 29 ("Except as to the amount of damages each member of the Class has by itself sustained ...").

[33] A similar argument can be made in support of declaratory relief. See also Pinney Dock, 838 F.2d at 1482.

[34] Defendants directed the Court's attention to Coll v. First Am. Title Ins. Co., No. CIV 06-348, Dkt. No. 141 (D.N.M. Apr. 21, 2008) (stating the purpose of New Mexico's Title Insurance Law "is to provide a comprehensive body of law for the effective regulation and active supervision of the business of title insurance transacted [] in response to the McCarran-Ferguson Act.") (ECF 43-2 at 17)

[35] Plaintiffs characterize Defendants' co-conspirators as "various title insurers, not named as defendants herein, which were members of OTIRB during all or part of the class period." ECF No. 36 at 10 ถ 25.

[36] The role of the corporate parent defendant is discussed in Section C, infra.

[37] Curiously, Plaintiffs state in their Complaint that Ohio law regulates title insurance. See ECF No. 36 at 15 ถ 47 ("Ohio Revised Code ง 3935.03(B), which regulates title insurance....").

[38] Please also see text above regarding ODI's "Meaningful or Comprehensive Review."

[39] Old Republic International Corporation ("ORI") is the ultimate parent company of Old Republic National Title Insurance Company ("ORNTIC"). See ECF No. 41-2 at 17 n. 6. Both ORI and ORNTIC are named defendants. ORI, a self-described "insurance holding company," separately moved for the dismissal of the entire Complaint due to Plaintiffs' failure to state a claim "under either the Sherman Act or the Valentine Act, because [the Complaint] does not allege facts which could support a finding that ORI itself, as opposed to ORI's corporate `affiliates,' was involved in the alleged conspiracy to fix Ohio title insurance rates." ECF No. 41-2 at 7; see also ECF No. 36 at ถถ 19, 20. ORI along with the other corporate parent defendants joined all other defendants to dismiss pursuant to the Filed Rate Doctrine and McCarran-Ferguson Act (ECF No. 43), as discussed earlier. See ECF Nos. 40 & 66 at 6 n. 1.

[40] Plaintiffs offer "that this conduct by the title insurance companies is not limited to Ohio. Plaintiffs believe that, in every state in which there is a rating bureau for title insurance, there is an identical horizontal price fix. It is unlikely that this conduct would have uniformly occurred absent coordination and control by the ultimate parents of the operating company defendants." ECF No. 88 at 3 n. 1.

[41] Of course this does not immunize corporate actors from Sherman Act scrutiny; it does however dictate that any post-acquisition scrutiny falls outside of the reach of ง 1 (conspiracy).

[42] The Complaint alleges the title insurance defendants are "wholly owned" and/or "controlled" by their various parent corporation. See ECF No. 36 at ถถ 12, 14, 16, 18, and 20.

[43] Plaintiffs allege that some corporate parent defendants wholly own and control their subsidiaries (e.g., ถ 18), while others wholly own and/or control their subsidiaries, (e.g., ถ 20). For the purposes of this motion, the court will read the Complaint in the light most favorable to Plaintiffs and presume that all corporate defendant parents wholly own and control their title insurance subsidiaries.

[44] In reply to ORI's Motion to Dismiss, Plaintiffs argues that they "specifically alleged that ORI [for example] agreed to its subsidiary's participation with non-related entities in the conspiracy set forth in the [Complaint]." ECF No. 64 at 39. The undersigned has found no language in the Complaint alleging a specific agreement. And, assuming arguendo, were such language present, the Copper-weld issue of whether a parent can agree or conspire with its subsidiary would still loom.

[45] Plaintiffs essentially concede that a failure to state a Sherman Act claim would also constitute a failure to state a claim under Ohio's Valentine Act. ECF No. 64 at 40. The Court concurs.

[46] LandAmerica Financial Group, Inc., one of the corporate defendants, has filed bankruptcy. Because the recommendation is for a dismissal of all allegations against LandAmerica Financial Group, Inc., the undersigned recognizes the awkward position the automatic stay (ECF No. 60) due poses for all who are bound by it. The undersigned, therefore, recommends that, in the interest of due process to all parties, unless or until the Court receives evidence that the stay has been lifted or modified, the dismissal should be stayed as to defendant LandAmerica Financial Group, Inc.

[47] As noted above, the parent corporations include, Fidelity National Financial (ถ 12), First American Corporation (ถ 14), LandAmerica Financial Group, Inc. (ถ 16), Stewart Information Services Corporation (ถ 18), and Old Republic International Corporation (ถ 20).