Hartford Fire Ins. Co. v. California, 509 U.S. 764, 22 (1993)

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Cite as: 509 U. S. 764 (1993)

Souter, J., concurring in judgment

the Court that, construed in favor of the plaintiffs, the First, Second, Third, and Fourth Claims for Relief in the California Complaint, and the First and Second Claims for Relief in the Connecticut Complaint, allege one or more § 3(b) "act[s] of boycott," and are thus sufficient to survive a motion to dismiss. See infra, at 789-790; post, at 811.

In reviewing the motions to dismiss, however, the Court has decided to use what I believe to be an overly narrow definition of the term "boycott" as used in § 3(b), confining it to those refusals to deal that are "unrelated" or "collateral" to the objective sought by those refusing to deal. Post, at 803. I do not believe that the McCarran-Ferguson Act or our precedents warrant such a cramped reading of the term.

The majority and I find common ground in four propositions concerning § 3(b) boycotts, as established in our decisions in St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531 (1978), and United States v. South-Eastern Underwriters Assn., 322 U. S. 533 (1944). First, as we noted in St. Paul, our only prior decision construing "boycott" as it appears in § 3(b), only those refusals to deal involving the coordinated action of multiple actors constitute § 3(b) boycotts: "conduct by individual actors falling short of concerted activity is simply not a 'boycott' within [the meaning of] § 3(b)." 438 U. S., at 555; see post, at 800 (" 'boycott' " used "to describe . . . collective action"); post, at 801 ("To 'boycott' means '[t]o combine in refusing to hold relations' " (citation omitted)).

Second, a § 3(b) boycott need not involve an absolute refusal to deal.13 A primary goal of the alleged conspirators in South-Eastern Underwriters, as we described it, was "to force nonmember insurance companies into the conspiracies." 14 322 U. S., at 535; cf. Joint Hearing on S. 1362, H. R.

13 Petitioners correctly concede this point. See Brief for Petitioners in No. 91-1111, p. 32, n. 14.

14 As we have noted before, see Group Life & Health Ins. Co. v. Royal Drug Co., 440 U. S. 205, 217 (1979); SEC v. National Securities, Inc., 393 U. S. 453, 458 (1969), the McCarran-Ferguson Act was precipitated by our

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