Although it was only a few weeks ago that I was first introduced to the particulars of antitrust law, I am not going to let that stop me from expressing my disappointment about the recent opinion in California v. Safeway, which I find disheartening in a bitterly familiar way.

Several of the major Southern California supermarket chains (Safeway, Ralphs, Vons, and Albertsons), together accounting for 60% - 70% of the market for groceries in that area, entered into a Mutual Strike Assistance Agreement (MSAA). This agreement included a "revenue sharing provision" according to which, in the event of a strike, any grocer earning more than their typical share of revenue would give 15% of those excess earnings to any grocers who were losing money relative to their typical share.

Let me run that by you one more time in case you missed it: the agreement provides that competing grocery stores will share profits for the duration of a strike in order to blunt its effects.

As I said above, I really only just started studying this whole antitrust deal, but this seems like a pretty blatant violation to me. Sadly, the 9th Circuit only sort of agrees. An en banc panel held that this might be an antitrust violation but that it's not per se illegal, placing a considerable burden on the state to jump through a lot of evidentiary hoops to win its case. Why? Because the agreement was not permanent (i.e. revenue would only be shared during a strike) and because the signatories only controlled some of the market -- not all of it. I have to say that I really don't understand this. Does this mean that it's OK to fix prices for one month out of the year? Or to fix the price of a single product? Can competitors who control a sizable share of the market but not the whole market effectively do whatever they want?

What I am left wondering about is whether there is a consumer protection angle here: after all, for many consumers the fact of a strike is a material aspect of their decision to purchase a particular product or patronize a particular business. (This seems similar to Kasky v. Nike -- a California Supreme Court case holding that lies Nike told about its labor practices in order to boost sales were not protected by the First Amendment.) It is certainly reasonable for a consumer to believe that the money she spends at one grocery store is being kept by that store and not being funneled to its competitors. If that isn't the case, then shouldn't there be signs in the windows -- "Up to 15% of your purchase will be donated to the store across the street for the until its workers are no longer on strike"?

As political and legal protections for labor, the environment, and general health and safety gradually erode, legislators offer us the same cold comfort over and over: that we can vote with our dollars, that by buying the right things we can become better people and make the world a better place, or, at the very least, avoid causing additional harm. This is, at best, a problematic notion -- there are all sorts of dignitary and social ills that might arise from viewing purchasing as our main form of political expression. But it seems to me that one of the biggest problems is that, when businesses are allowed to lie like this, it just isn't true.