Sanders V. Brown: State-Action Immunity and Judicial Protection of the Master Settlement Agreement‪.‬

I. INTRODUCTION The Master Settlement Agreement (MSA) has been subject to critique, criticism, and judicial challenge since its signing in 1998. (1) While critics list a litany of problems with the MSA, the most prevalent charge is that it permits the settling tobacco companies to act as a "state-sanctioned cartel, passing on to consumers the costs of their estimated $206 billion damage payment and using the settlement structure to raise cigarette prices even higher." (2) Other criticisms have gone further, calling the MSA "a cartel in the most pristine sense." (3) This critique results from the fact that the MSA's provisions insulate the market shares of the participating tobacco manufacturers from usurpation by subsequent market entrants and ensure that consumers are the almost exclusive recipients of the costs of the agreement. (4)