AGO 81-035.

• Case Date: April 02, 1981
• Court: North Dakota

North Dakota Attorney General Opinions 1981. AGO 81-035. OPINION 81-35Date Issued: April 2, 1981 (AGO 81-35) Requested by: James M. Vukelic Hettinger County State's Attorney- QUESTION PRESENTED - Whether promulgation of minimum settlement damages and fees guidelines by a surface owners association, for oil exploration and development activities would violate state antitrust law.- ATTORNEY GENERAL'S OPINION - It is my opinion that promulgation of such guidelines would violate the state's antitrust law as found in chapter 51-08, N.D.C.C. - ANALYSIS - Section 51-08-01, N.D.C.C., reads:

51-08-01. POOLS AND TRUSTS PROHIBITED. It shall be unlawful for any corporation organized under the laws of this state or doing business in this state, or any partnership, association, or individual, to create, enter into, or become a member of, or a party to, any pool, trust, agreement, contract, combination, or confederation, to regulate or fix the price of any article of merchandise, commodity, or property, or to fix or limit the amount or quantity of any article, property, merchandise, or commodity to be manufactured, mined, produced, exchanged, or sold in this state.

There is no North Dakota case law decided under this statute. The statute is, however, similar to the Sherman Antitrust Act 15 USC Sections 1-7 (1977). Drawing from the body of knowledge developed in the federal system provides instruction as to what courses of action are permissible, and what courses of action are prohibited. The federal law states that contracts, combinations, and conspiracies in restraint of trade are illegal. This law has been judicially refined to mean that only unreasonable restraints of trade are unlawful. Standard Oil Co. v. U.S., 211 U.S. 1 (1911). A "rule of reason" test was developed. Even in the face of this "rule of reason," some activities were deemed so anticompetitive as to constitute per se violations of the law. These per se activities need not be subjected to the analysis of reasonableness. Price fixing is one such per se activity. Northern Pacific Railway Co. v. U.S., 356 U.S. 1 (1958). Section 51-08-01, N.D.C.C., likewise specifically lists price fixing as a prohibited activity. This statutory language and the developed body of federal law clearly points to the conclusion that price fixing is anticompetitive and a violation of the...