References
| ↑1 | See United States v. MMR Corp. (LA), 907 F.2d 489, 497 (5th Cir. 1990) (“[A]n agreement among competitors to fix prices is a per se violation of section 1 of the Sherman Act.”); California ex rel. Harris v. Safeway, Inc., 651 F.3d 1118, 1137 (9th Cir. 2011) (“M]arket-allocation agreements among competitors at the same market level are per se antitrust violations.”); Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 844 (9th Cir. 1996) (“[A] classic horizontal market division agreement [is one] in which competitors at the same level agree to divide up the market for a given product.”); United States v. Joyce, 895 F.3d 673, 679 (9th Cir. 2018) (“[B]id rigging is per se illegal under Section 1 of the Sherman Act.”). |
|---|---|
| ↑2 | See Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (a per se violation of Section 1 would likely be found upon a proper showing “that defendants actually formed an agreement to fix [] salaries.”); In re Ry. Indus. Emp. No-Poach Antitrust Litig., 395 F. Supp. 3d 464, 481 (W.D. Pa. 2019) (“An agreement among employers that they will not compete against each other for the services of a particular employee or prospective employee is, in fact, a service division agreement, analogous to a product division agreement.”) (quoting XII PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 2013b at 148 (3d ed. 2012). |
| ↑3 | See Ohio v. Am. Express Co., 585 U.S. 529, 540–542 (2018) (“Section 1 of the Sherman Act prohibits ‘[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.’ This Court has long recognized that, in view of the common law and the law in this country when the Sherman Act was passed, the phrase ‘restraint of trade’ is best read to mean ‘undue restraint.’ This Court’s precedents have thus understood § 1 to outlaw only unreasonable restraints…. To determine whether a restraint violates the rule of reason, the parties agree that a three-step, burden-shifting framework applies. Under this framework, the plaintiff has the initial burden to prove that the challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market. If the plaintiff carries its burden, then the burden shifts to the defendant to show a procompetitive rationale for the restraint. If the defendant makes this showing, then the burden shifts back to the plaintiff to demonstrate that the procompetitive efficiencies could be reasonably achieved through less anticompetitive means.”). |
| ↑4 | See United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966) (“The offense of monopoly under s 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”); United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001) (“A firm violates § 2 only when it acquires or maintains, or attempts to acquire or maintain, a monopoly by engaging in exclusionary conduct….[T]o be condemned as exclusionary, a monopolist’s act must have an ‘anticompetitive effect.’ That is, it must harm the competitive process and thereby harm consumers. In contrast, harm to one or more competitors will not suffice.”); Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) (“[T]he possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.”). |
| ↑5 | See Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1243 (10th Cir. 2016) (“§ 2 conspiracy claims require a different showing than is required for § 2 monopolization and attempt claims. Monopolization and attempt claims under § 2 require proof that a defendant’s conduct actually monopolizes or dangerously threatens to do so. In contrast, defendants might be convicted of a conspiracy to monopolize without ever having acquired the power to carry out the object of the conspiracy, i.e., to exclude actual and potential competitors from the relevant market.”). |
| ↑6 | See Fraser v. Major League Soccer, L.L.C., 284 F.3d 47, 61 (1st Cir. 2002) (“[M]erger to monopoly, benign as to the merged competitors, is a feasible section 2 claim, even if it is more often challenged under Clayton Act section 7, which requires much less.”). |
| ↑7 | See In re Adderall XR Antitrust Litig., 754 F.3d 128, 133 (2d Cir. 2014) (“[A]nticompetitive conduct is conduct without a legitimate business purpose that makes sense only because it eliminates competition.”); Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 124 (2d Cir. 2007) (same); Morris Commc’ns Corp. v. PGA Tour, Inc., 364 F.3d 1288, 1295 (11th Cir. 2004) (same). |
| ↑8 | See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222–25 (1993) (explaining these points at length). |
| ↑9 | See Texaco Inc. v. Hasbrouck, 496 U.S. 543, 555–56 (1990) (“[The Robinson-Patman Act] does contain two affirmative defenses that provide protection for two categories of discounts—those that are justified by savings in the seller’s cost of manufacture, delivery, or sale, and those that represent a good-faith response to the equally low prices of a competitor.”); Water Craft Mgmt. LLC v. Mercury Marine, 457 F.3d 484, 489 (5th Cir. 2006) (“[I]t is an absolute defense to liability under the Robinson–Patman act that the price discrimination is the result of price concessions made “in good faith for the purpose of meeting the competitor’s price.”); see also FTC v. Fred Meyer, Inc., 390 U.S. 341, 352 (1968) (the Robinson-Patman Act prohibits “the granting of sales promotional allowances to one customer unless accorded on proportionally equal terms to all competing customers.”); Coal. For A Level Playing Field, L.L.C. v. AutoZone, Inc., 737 F. Supp. 2d 194, 211 (S.D.N.Y. 2010) (“[A] functional discount [given only to a preferred commercial customer] is only illegal [under the Robinson-Patman Act] if (i) the discount is being given for services that are not being performed at all, or (ii) the amount of the discount greatly exceeds the value or cost of the service.”); see generally “Unlawful Price Discrimination under Federal and California Law”, by William Markham. |
| ↑10 | See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 271 (3d Cir. 2012) (“The legality of an exclusive dealing arrangement [under Section 3 of the Clayton Act or Sections 1 or 2 of the Sherman Act] depends on whether it will foreclose competition in such a substantial share of the relevant market so as to adversely affect competition.”); see also Times-Picayune Pub. Co. v. United States, 345 U.S. 594, 608–09 (1953) (tying arrangements by which dominant seller in the market for the tying product substantially forecloses competition in the market for the tied product can violate Section 3 of the Sherman Act or Sections 1 or 2 of the Sherman Act); Illinois Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 46 (2006) ([I]n all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.”). |
| ↑11 | See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485 (1977) (“Section 7 of the [Clayton] Act proscribes mergers whose effect ‘may be substantially to lessen competition, or to tend to create a monopoly. It is, as we have observed many times, a prophylactic measure, intended primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil.”). |
| ↑12 | See FTC v. Indiana Fed’n of Dentists, 476 U.S. 447, 454 (1986) (“The standard of ‘unfairness’ under the FTC Act is, by necessity, an elusive one, encompassing not only practices that violate the Sherman Act and the other antitrust laws, but also practices that the Commission determines are against public policy for other reasons.”); Fed. Trade Comm’n v. Cement Inst., 333 U.S. 683, 694–95 (1948) (“[T]he Sherman Act and the Trade Commission Act provide the Government with cumulative remedies against activity detrimental to competition. Both the legislative history of the Trade Commission Act and its specific language indicate a congressional purpose, not to confine each of these proceedings within narrow, mutually exclusive limits, but rather to permit the simultaneous use of both types of proceedings.”); Slough v. FTC 396 F.2d 870, 872 (5th Cir. 1968) (“The aim of [Section 5] is to stamp out unfair business practices and businesses which persist in practicing them.”). |
| ↑13 | See N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4 (1958) (“The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conductive to the preservation of our democratic political and social institutions.”); see generally United States v. Aluminum Co. of Am., 148 F.2d 416, 427–428 (2d Cir. 1945) (“Alcoa“) (summarizing the premises and purposes of the Sherman Act as follows: “[I]t is no excuse for ‘monopolizing’ a market that the monopoly has not been used to extract from the consumer more than a ‘fair’ profit. The [Sherman] Act has wider purposes…. Many people believe that possession of unchallenged economic power deadens initiative, discourages thrift and depresses energy; that immunity from competition is a narcotic, and rivalry is a stimulant, to industrial progress; that the spur of constant stress is necessary to counteract an inevitable disposition to let well enough alone. Such people believe that competitors, versed in the craft as no consumer can be, will be quick to detect opportunities for saving and new shifts in production, and be eager to profit by them. In any event the mere fact that a producer, having command of the domestic market, has not been able to make more than a ‘fair’ profit, is no evidence that a ‘fair’ profit could not have been made at lower prices…. [Congress] did not condone ‘good trusts’ and condemn ‘bad’ ones; it forbad all. Moreover, in so doing it was not necessarily actuated by economic motives alone. It is possible, because of its indirect social or moral effect, to prefer a system of small producers, each dependent for his success upon his own skill and character, to one in which the great mass of those engaged must accept the direction of a few. These considerations, which we have suggested only as possible purposes of the Act, we think the decisions prove to have been in fact its purposes. (….) [T]here can be no doubt that the vice of restrictive contracts and of monopoly is really one, it is the denial to commerce of the supposed protection of competition….”). |
| ↑14 | See Alcoa, 148 F.2d at 427–428; N. Pac. Ry., 356 U.S. at 4; see also Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1214 (9th Cir. 1997) (“Antitrust law seeks to promote and protect a competitive marketplace for the benefit of the public. The Sherman Act … prohibits efforts both to restrain trade by combination or conspiracy and the acquisition or maintenance of a monopoly by exclusionary conduct.”); FTC v. Phoebe Putney Health Sys., Inc., 568 U.S. 216, 225 (2013) (“[T]he fundamental national values of free enterprise and economic competition … are embodied in the federal antitrust laws….”). |
| ↑15 | See Alcoa, 148 F.2d at 427–428; N. Pac. Ry., 356 U.S. at 4; Image Tech. Servs., 125 F.3d at 1214; Phoebe Putney Health Sys., 568 U.S. at 225. |
| ↑16 | See Alcoa, 148 F.2d at 427–428; N. Pac. Ry., 356 U.S. at 4; Image Tech. Servs., 125 F.3d at 1214; Phoebe Putney Health Sys., 568 U.S. at 225. |
| ↑17 | See Paramount Pictures v. United Motion Picture Theatre Owners of E. Pennsylvania, S. New Jersey & Delaware, 93 F.2d 714, 719 (3d Cir. 1937) (“Congress intended by the anti-trust acts to prevent all combinations and conspiracies, whether composed of employees, employers, producers, users, or consumers, from unreasonably restraining the free flow of interstate commerce.”); N. Sec. Co. v. United States, 193 U.S. 197, 404 (1904) (“Combinations or conspiracies in restraint of trade … were combinations to keep strangers to the agreement out of the business. The objection to them was not an objection to their effect upon the parties making the contract, the members of the combination or firm, but an objection to their intended effect upon strangers to the firm and their supposed consequent effect upon the public at large. In other words, they were regarded as contrary to public policy because they monopolized, or attempted to monopolize, some portion of the trade or commerce of the realm.”) (Holmes, J., dissenting on other grounds); United States v. E. C. Knight Co., 156 U.S. 1, 25 (1895) (“[A] general restraint of trade has often resulted from combinations formed for the purpose of controlling prices by destroying the opportunity of buyers and sellers to deal with each other upon the basis of fair, open, free competition. Combinations of this character … have always been condemned as illegal because of their necessary tendency to restrain trade. Such combinations are against common right, and are crimes against the public.”) (Harlan, J., dissenting on other grounds). |
| ↑18 | See generally HOVENKAMP, FEDERAL ANTITRUST POLICY: THE LAW OF COMPETITION AND ITS PRACTICE (Thomson West, 3rd ed. 2005) § 4.2a, pp. 159–165. |
| ↑19 | See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485 (1977) (“Section 7 of the [Clayton] Act proscribes mergers whose effect ‘may be substantially to lessen competition, or to tend to create a monopoly. It is, as we have observed many times, a prophylactic measure, intended primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil.”). |
| ↑20 | See Alcoa, 148 F.2d at 429 (“We have been speaking only of the economic reasons which forbid monopoly; but, as we have already implied, there are others, based upon the belief that great industrial consolidations are inherently undesirable, regardless of their economic results. In the debates in Congress Senator Sherman himself in the passage quoted in [a footnote] showed that among the purposes of Congress in 1890 was a desire to put an end to great aggregations of capital because of the helplessness of the individual before them…. Throughout the history of [federal antitrust statutes] it has been constantly assumed that one of their purposes was to perpetuate and preserve, for its own sake and in spite of possible cost, an organization of industry in small units which can effectively compete with each other.”). |
| ↑21 | See Alcoa, 148 F.2d at 427–428; N. Pac. Ry., 356 U.S. at 4; Image Tech. Servs., 125 F.3d at 1214; Phoebe Putney Health Sys., 568 U.S. at 225. |
| ↑22 | See, e.g., 15 U.S.C. §§ 13, 14, 18, 45 (which respectively prohibit certain kinds of price discrimination; exclusive dealing and tying arrangements that are likely to result in a substantial lessening of competition in a relevant market; mergers and acquisitions that are likely to result in a substantial lessening of competition in a relevant market; and unfair trade practices that the FTC condemns under Section 5 of the FTC Act). Accordingly, federal antitrust law condemns anticompetitive conduct that plausibly threatens to undermine competitive interplay in a distinct line of commerce, and it never seeks to disturb competitive markets or procompetitive conduct.(((United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001) (“Whether any particular act of a monopolist is exclusionary, rather than merely a form of vigorous competition, can be difficult to discern: the means of illicit exclusion, like the means of legitimate competition, are myriad. The challenge for an antitrust court lies in stating a general rule for distinguishing between exclusionary acts, which reduce social welfare, and competitive acts, which increase it.”). |
| ↑23 | See Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 525 (5th Cir. 1999) (Competition on the merits includes competition to offer lower prices, better terms of sale, or attractive “nonprice considerations such as reliability, maintenance support, and general quality.”). |
| ↑24 | See Cascade Health Sols. v. PeaceHealth, 515 F.3d 883, 894 (9th Cir. 2008) (“Anticompetitive conduct is behavior that tends to impair the opportunities of rivals and either does not further competition on the merits or does so in an unnecessarily restrictive way.”); Stearns Airport Equip., 170 F.3d at 522 (“Exclusionary conduct under section 2 is the creation or maintenance of monopoly by means other than the competition on the merits…. The key factor courts have analyzed in order to determine whether challenged conduct is or is not competition on the merits is the proffered business justification for the act. If the conduct has no rational business purpose other than its adverse effects on competitors, an inference that it is exclusionary is supported.”); Chase Mfg., Inc. v. Johns Manville Corp., 84 F.4th 1157, 1170 (10th Cir. 2023) (“Anticompetitive conduct comes in too many forms and shapes to permit a comprehensive taxonomy…. The question is whether, based on the evidence derived from past cases, the conduct at issue before us has little or no value beyond the capacity to protect the monopolist’s market power.”). |
| ↑25 | See In re Suboxone (Buprenorphine Hydrochloride & Naloxone) Antitrust Litig., 622 F. Supp. 3d 22, 50 (E.D. Pa. 2022) (“[I]nconsistencies in and contrasts between the internal and public explanations [for the challenged actions] may suggest that a defendant was attempting to disguise the true reason for its actions and are grounds for finding pretext.”); see,e.g., Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1013 (3d Cir. 1994) (there existed a material dispute of fact that the jury must decide as to whether antitrust defendant’s proffered justifications for its challenged conduct were a mere pretext for its anticompetitive, monopolizing conduct). |
| ↑26 | See Microsoft, 253 F.3d at 58. |
| ↑27 | See FTC v. Freeman Hosp., 69 F.3d 260, 270–71 (8th Cir.1995) (“Antitrust claims often rise or fall on the definition of the relevant market.”); Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 96 (2d Cir. 1998) (to prevail on a claim for a rule-of-reason violation of Section 1 of the Sherman Act, “a plaintiff initially must show that the challenged action had an actual adverse effect on competition as a whole in the relevant market”) (emphasis in original); Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993) (to prevail on a claim for attempted monopolization in violation of Section 2 of the Sherman Act, a plaintiff must prove inter alia the existence of a relevant market that the defendant has nearly monopolized by its anticompetitive conduct); United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586, 593 (1957) (“Determination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act.”); Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 625 (5th Cir. 2002) (to prove a violation of Section 3 of the Clayton Act, a plaintiff must show inter alia “the relevant product market” and “the relevant geographic market” in which competition has been substantially lessened by a challenged exclusive-dealing or tying arrangement); Fed. Trade Comm’n v. Advoc. Health Care Network, 841 F.3d 460, 467 (7th Cir. 2016) (“To show a [violation of Section 7 of the Clayton Act], the [FTC] must identify the relevant ‘line of commerce’ and ‘section of the country.’ In other words, it must identify the relevant product and geographic markets.”). |
| ↑28 | See Freeman Hosp., 69 F.3d at 270–71 (“A relevant market consists of both a product market and a geographic market.”); Fed. Trade Comm’n v. Penn State Hershey Med. Ctr., 838 F.3d 327, 338 (3d Cir. 2016) (“The relevant market is defined in terms of two components: the product market and the geographic market.”); In re Aluminum Warehousing Antitrust Litig., 95 F. Supp. 3d 419, 454 (S.D.N.Y. 2015) (“A relevant product market consists of products that have reasonable interchangeability for the purposes for which they are produced—price, use and qualities considered. Products are considered reasonably interchangeable if consumers treat them as acceptable substitutes.”); Gordon v. Lewistown Hosp., 423 F.3d 184, 212 (3d Cir. 2005) (“The relevant geographic market … is that area in which a potential buyer may rationally look for the goods or services he seeks.”). |
| ↑29 | See United States v. Rockford Mem’l Corp., 898 F.2d 1278, 1285 (7th Cir. 1990) (“It is always possible to take pot shots at a market definition (we have just taken one), and the defendants do so with vigor and panache. Their own proposal, however, is ridiculous…. Forced to choose between two imperfect market definitions, the defendants’ and the district judge’s (the latter a considerable expansion of the government’s tiny proposed market) … we choose the less imperfect, the district judge’s.”). |
| ↑30 | See United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 593 (1957) (“Determination of the relevant market is a necessary predicate to a finding of a violation of the Clayton Act because the threatened monopoly must be one which will substantially lessen competition ‘within the area of effective competition.’ Substantiality can be determined only in terms of the market affected.”); Vazquez-Ramos v. Triple-S Salud, Inc., 55 F.4th 286, 296 (1st Cir. 2022) (“We start with an element common to both claims against both parties [undue restraint of trade and monopolization]: market power. Given that the amended complaint alleges no per se violations of the Sherman Act, all of plaintiffs’ antitrust claims require proof that defendants exercise or could exercise a threshold degree of market power. To that end, plaintiffs must in due course adduce enough evidence to permit a reasonable factfinder to define the relevant market. The relevant market is the area of effective competition, and includes both a relevant geographic market and a relevant product market.”); Ohio v. Am. Express Co., 585 U.S. 529, 542 (2018) (to determine whether defendant committed a rule-of-reason violation of Section 1 of the Sherman Act, “we must first define the relevant market”); Díaz Aviation Corp. v. Airport Aviation Servs., Inc., 716 F.3d 256, 265 (1st Cir. 2013) (explaining that the required showing of “monopoly power” for a Section 2 claim “is typically proven by defining a relevant market and showing that the defendant has a dominant share of that market”). |
| ↑31 | See 15 U.S.C. |
| ↑32 | See Apex Hosiery Co. v. Leader, 310 U.S. 469, 497 (1940) (“The common law doctrines relating to contracts and combinations in restraint of trade were well understood long before the enactment of the Sherman law. They were contracts for the restriction or suppression of competition in the market, agreements to fix prices, divide marketing territories, apportion customers, restrict production and the like practices, which tend to raise prices or otherwise take from buyers or consumers the advantages which accrue to them from free competition in the market. Such contracts were deemed illegal and were unenforcible at common law. But the resulting restraints of trade were not penalized and gave rise to no actionable wrong. Certain classes of restraints were not outlawed when deemed reasonable, usually because they served to preserve or protect legitimate interests, previously existing, of one or more parties to the contract.”); see generally ALBERT H. WALKER, HISTORY OF THE SHERMAN LAW OF THE UNITED STATES OF AMERICA (1910) (digitized by Google) at 14 (“[W]hat is this bill? A remedial statute to enforce, by civil process in the courts of the United States, the common law against monopolies. How is such a law to be construed ? Liberally, with a view to promote its object.”) (Senator Sherman, co-drafter and principal sponsor, addressing Congress). |
| ↑33 | See Butchers’ Union Slaughter-House & Live-Stock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 111 U.S. 746, 763–64 (1884) (“I do not mean to say that there are no exclusive rights which can be granted, or that there are not many regulative restraints on civil action which may be imposed by law. There are such. The granting of patents for inventions, and copyrights for books, is one instance already referred to. This is done upon a fair consideration, and upon grounds of public policy…. So, an exclusive right to use franchises, which could not be exercised without legislative grant, may be given; such as that of constructing and operating public works, railroads, ferries, etc…. So, licenses may be properly required in the pursuit of many professions and avocations which require peculiar skill or supervision for the public welfare…. But this concession does not in the slightest degree affect the proposition … that the ordinary pursuits of life, forming the large mass of industrial avocations, are and ought to be free and open to all, subject only to such general regulations, applying equally to all, as the general good may demand; and the grant to a favored few of a monopoly in any of these common callings is necessarily an outrage upon the liberty of the citizen as exhibited in one of its most important aspects, – the liberty of pursuit. [S]uch a grant [is] beyond the legislative power, and contrary to the constitution….”). |
| ↑34 | See id; see also Coke, Against Monopolists, Propounders, and Projectors, Trin. 44 Eliz. lib. 11, f. 84, 85; le case de monopolies, 3 Inst. 181 (Subject to limited exceptions, “all grants of monopolies are against the ancient and fundamentall laws of this kingdome.”); Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 52–57 (1911) (referring to the history of monopolies in England, and explaining that state and federal courts in the United States generally deemed unauthorized monopolies to be “odious” to the law, and that these courts also condemned trade restraints that unreasonably restricted marketplace competition and therefore tended to lead to monopoly, including combinations formed by rival sellers to end competition in their market or exclude other sellers); Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 451 (1837) (“A monopoly, then, is an exclusive privilege conferred on one, or a company, to trade or traffick in some particular article; such as buying and selling sugar or coffee, or cotton, in derogation of a common right. Every man has a natural right to buy and sell these articles; but when this right, which is common to all, is conferred on one, it is a monopoly, and as such, is justly odious.”); Richardson v. Buhl, 77 Mich. 632, 43 N.W. 1102, 1110 (1889) (“[C]onsolidation of separate, otherwise competing, companies into one large corporation amounted to a restraint of competition, and an illegal monopoly….”); People v. Chicago Gas Trust Company, 130 Ill. 268, 22 N.E. 798, 801–803 (1889) (same); Distilling & Cattle Feeding Co. v. People, 156 Ill. 448, 41 N.E. 188, 202 (1895); see, e.g., Arnot v. Coal Co., 68 N.Y. 558, 565 (1877) (decreeing invalid a contract between two coal companies by which they established a monopoly over the sale of anthracite coal in part of New York State) (“A combination to effect such a purpose is inimical to the interests of the public. [A]ll contracts designed to effect such an end are contrary to public policy, and therefore illegal. If they should be sustained, the prices of articles of pure necessity, such as coal, flour, and other indispensable commodities, might be artificially raised to a ruinous extent far exceeding any naturally resulting from the proportion between supply and demand.”); N. Sec. Co. v. United States, 193 U.S. 197, 339–41 (listing numerous common-law decisions that condemned combinations that gave the combining parties control over a line of commerce). |
| ↑35 | See Butchers’ Union Slaughter-House & Live-Stock Landing, 111 U.S. at 763–64. |
| ↑36 | See id.; see generally 35 U.S.C. §§ 100 et seq.). |
| ↑37 | See Butchers’ Union Slaughter-House & Live-Stock Landing, 111 U.S. at 763–64.; see generally 17 U.S.C. §§ 101 et seq.). |
| ↑38 | See Butchers’ Union Slaughter-House & Live-Stock Landing, 111 U.S. at 763–64. |
| ↑39 | See id. |
| ↑40 | See id. |
| ↑41 | See id. |
| ↑42 | See N. Sec. Co., 193 U.S. at 339–41 (listing numerous common-law decisions that condemned combinations that gave the combining parties control over a line of commerce). |
| ↑43 | See generally ALBERT H. WALKER, HISTORY OF THE SHERMAN LAW OF THE UNITED STATES OF AMERICA (1910) (digitized by Google) at 14; Apex Hosiery Co. v. Leader, 310 U.S. 469, 497 (1940). |
| ↑44 | See generally 15 U.S.C. §§ 1-11. |
| ↑45 | See generally 15 U.S.C. §§ 13, 14, 18. |
| ↑46 | See generally 15 U.S.C. § 15. |
| ↑47 | See Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990) (“The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.”); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (To qualify as antitrust injury, “[t]he injury should reflect the anticompetitive effect either of the violation or of anti-competitive acts made possible by the violation.”); see also Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051, 1055 (9th Cir. 1999) (the doctrine of antitrust injury requires an antitrust plaintiff to (1) identify an antitrust violation, (2) show how it has impaired competition, and (3) show how this impairment of competition has caused losses to the antitrust plaintiff.); Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995) (the doctrine of antitrust injury requires a private plaintiff to “prove that his loss flows from an anticompetitive aspect or effect of the defendant’s behavior….”). |
| ↑48 | See generally 15 U.S.C. § 26. |
| ↑49 | See 36 Cong. Rec. 522 (Jan. 6, 1903) (“We undertook by law to clothe the courts with the power and impose on them and the Department of Justice the duty of preventing all combinations in restraint of trade. It was believed that the phrase ‘in restraint of trade’ had a technical and well-understood meaning in the law.”) (statement of Senator Hoar, co-drafter of the Sherman Act); George F. Edmunds, The Interstate Trust and Commerce Act of 1890, 194 No. Am. Rev. 801, 813 (1911) (“[A]fter most careful and earnest consideration by the Judiciary Committee of the Senate it was agreed by every member that it was quite impracticable to include by specific description all the acts which should come within the meaning and purpose of the words ‘trade’ and ‘commerce’ or ‘trust’, or the words ‘restraint’ or ‘monopolize’, by precise and all-inclusive definitions; and that these were truly matters for judicial consideration”) (Senator Edmunds, co-drafter of Sherman Act, explaining the final wording of the Sherman Act); see also ALBERT H. WALKER, HISTORY OF THE SHERMAN LAW OF THE UNITED STATES OF AMERICA, at 47) (“The Sherman law, when it was approved by President Harrison on July 2, 1890, was like the Constitution of the United States when it was framed in 1787, in that it was expressed in brief, broad and comprehensive language, requiring some judicial construction and many diversified applications to different cases for its practical development into generally recognized law.”). |
| ↑50 | See United States v. E. C. Knight Co., 156 U.S. 1, 16–17 (1895) (finding that the manufacture of goods must perforce be done only in one place and therefore does not constitute “interstate commerce” that is subject to the Sherman Act). |
| ↑51 | See, e.g., Swift & Co. v. United States, 196 U.S. 375, 396-397 (1905) (ruling that several combinations to control production and sale of commodity within various states was part of overall plan to restrain interstate commerce, and that this outcome fell within Congress’ authority under the Commerce Clause because the effect on interstate commerce was “not accidental, secondary, remote, or merely probable,” but rather was the plan’s “direct object,” so that “the case [was] not like United States v. E. C. Knight Co.”); see generally United Leather Workers’ Int’l Union, Loc. Lodge or Union No. 66 v. Herkert & Meisel Trunk Co., 265 U.S. 457, 468–69 (1924) (“The Knight Case has been looked upon by many as qualified by subsequent decisions of this court. The case is to be sustained only by the view that there was no proof of steps to be taken with intent to monopolize or restrain interstate commerce in sugar, but only proof of the acquisition of stock in sugar manufacturing companies to control its making.”). |
| ↑52 | see Wickard v. Filburn, 317 U.S. 111, 124 (1942) (“The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce….”). |
| ↑53 | See Alison Jones William E. Kovacic, The Antitrust Bulletin, Antitrust’s Implementation Blind Side: Challenges to Major Expansion of U.S. Competition Policy (Vol. 65, Issue 2, 2020), § II (“Modern critiques often compare the current antitrust system to enforcement policy between the late 1930s and the early 1970s. In this era, courts and enforcement agencies developed strict rules governing collusive agreements among competitors, vertical agreements between manufacturers and distributors, and dominant firm behavior. In addition, with the adoption of the Celler-Kefauver Act in 1950,28 Congress bolstered the Clayton Act’s merger control provision,29 which the DOJ and the FTC applied aggressively to challenge business combinations. With encouragement from the Supreme Court, the agencies imposed tough restrictions on horizontal and nonhorizontal mergers.30 Judicial decisions and enforcement policy embraced an egalitarian vision that emphasized the attainment of objectives (such as the preservation of SMEs and democracy) beyond the promotion of economic efficiency.”). |
| ↑54 | See, e.g., United States v. Google LLC, 747 F. Supp. 3d 1, 176–77 (D.D.C. 2024) (“Google has not met its burden to establish that valid procompetitive benefits explain the need for exclusive default distribution. Accordingly, Plaintiffs have established that Google is liable under Section 2 of the Sherman Act for unlawfully maintaining its monopoly in the market for general search services through its exclusive distribution agreements with browser developers and Android OEMs and carriers.”); In re Google Play Store Antitrust Litig., No. 24-6256, 2025 WL 2167402, at *18 (9th Cir. July 31, 2025) (“First, initial innovation notwithstanding, a first mover is not entitled to maintain and magnify the relevant network effects by entrenching its dominance through anticompetitive conduct.”); FTC v. Facebook, Inc., 581 F. Supp. 3d 34, 57 (D.D.C. 2022) (holding that the FTC adequately pled claim for monopolization against Facebook arising from Facebook’s serial acquisitions of other social media networks that threatened to its monopoly of a distinct kind of social media network). |
| ↑55 | See 15 U.S.C. § 15(a); J.T. Gibbons, Inc. v. Crawford Fitting Co., 790 F.2d 1193, 1194–95 (5th Cir. 1986), aff’d and remanded, 482 U.S. 437 (1987) (“15 U.S.C. § 15 provides for the award of attorneys’ fees and the costs of suit to a prevailing plaintiff. Crawford, as a prevailing defendant, cannot fit within this statute.”). |
| ↑56 | See PharmacyChecker.com LLC v. LegitScript LLC, 137 F.4th 1031, 1038 (9th Cir. 2025) (“Section 4 of the Clayton Act [15 U.S.C. § 15] provides that ‘any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor’ and ‘shall recover threefold the damages by him sustained.’ 15 U.S.C. § 15(a). Congress has thereby created a group of private attorneys general to incentivize the enforcement of the U.S. antitrust laws.”) (citing Illinois Brick Co. v. Illinois, 431 U.S. 720, 746 (1977)). |
| ↑57 | See United States v. Addyston Pipe & Steel Co., 85 F. 271, 279–281 (6th Cir. 1898), aff’d after modification on other ground 175 U.S. 211 (1899) (“From early times it was the policy of Englishmen to encourage trade in England, and to discourage those voluntary restraints which tradesmen were often induced to impose on themselves by contract. Courts recognized this public policy by refusing to enforce stipulations of this character…. The inhibition against restraints of trade at common law seems at first to have had no exception. After a time it became apparent to the people and the courts that it was in the interest of trade that certain covenants in restraint of trade should be enforced…. [C]ovenants in partial restraint of trade are generally upheld as valid when they are agreements (1) by the seller of property or business not to compete with the buyer in such a way as to derogate from the value of the property or business sold; (2) by a retiring partner not to compete with the firm; (3) by a partner pending the partnership not to do anything to interfere, by competition or otherwise, with the business of the firm; (4) by the buyer of property not to use the same in competition with the business retained by the seller; and (5) by an assistant, servant, or agent not to compete with his master or employer after the expiration of his time to service. Before such agreements are upheld, however, the court must find that the restraints attempted thereby are reasonably necessary (1, 2, and 3) to the enjoyment by the buyer of the property, good will, or interest in the partnership bought; or (4) to the legitimate ends of the existing partnership; or (5) to the prevention of possible injury to the business of the seller from use by the buyer of the thing sold; or (6) to protection from the danger of loss to the employer’s business caused by the unjust use on the part of the employee of the confidential knowledge acquired in such business….”). |
| ↑58 | See id., 85 F. at 279–281. |
| ↑59 | See id., Addyston Pipe & Steel, 85 F. at 282 (“[N]o conventional restraint of trade can be enforced unless the covenant embodying it is merely ancillary to the main purpose of a lawful contract, and necessary to protect the covenantee in the full enjoyment of the legitimate fruits of the contract, or to protect him from the dangers of an unjust use of those fruits by the other party.”); Oregon Steam Nav. Co. v. Winsor, 87 U.S. 64, 65–67 (1873) (“It is a well-settled rule of law that an agreement in general restraint of trade is illegal and void; but an agreement which operates merely in partial restraint of trade is good, provided it be not unreasonable and there be a consideration to support it. In order that it may not be unreasonable, the restraint imposed must not be larger than is required for the necessary protection of the party with whom the contract is made. A contract, even on good consideration, not to use a trade anywhere in England, is held void in that country, as being too general a restraint of trade; but a contract not to use a trade at a particular place, if it be founded on a good consideration, and made for a proper and useful purpose, is valid. Of course, a contract not to exercise a trade generally would be obnoxious to the rule, and would be void.”); see also Alger v. Thacher, 19 Pick. 51, 54 (Mass., 1837) (“The unreasonableness of contracts in restraint of trade and business is very apparent from several obvious considerations: (1) Such contracts injure the parties making them, because they diminish their means of procuring livelihoods and a competency for their families. They tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions; and they expose such persons to imposition and oppression. (2) They tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as themselves. (3) They discourage industry and enterprise, and diminish the products of ingenuity and skill. (4) They prevent competition and enhance prices. (5) They expose the public to all the evils of monopoly; and this especially is applicable to wealthy companies and large corporations, who have the means, unless restrained by law, to exclude rivalry, monopolize business, and engross the market. Against evils like these, wise laws protect individuals and the public by declaring all such contracts void.”); Mitchel v. Reynolds, 1 P.Wms. 181, 190 (1711) (Parker, C.J.) (“The mischief which may arise from [such restraints of trade are] (1) to the party by the loss of his livelihood and the subsistence of his family; (2) to the public by depriving it of an useful member. Another reason is the great abuses these voluntary restraints are liable to; as, for instance, from corporations who are perpetually laboring for exclusive advantages in trade, and to reduce it into as few hands as possible.”). |
| ↑60 | See N. Sec. Co. v. United States, 193 U.S. 197, 404 (1904) (“Combinations or conspiracies in restraint of trade … were combinations to keep strangers to the agreement out of the business. The objection to them was not an objection to their effect upon the parties making the contract, the members of the combination or firm, but an objection to their intended effect upon strangers to the firm and their supposed consequent effect upon the public at large. In other words, they were regarded as contrary to public policy because they monopolized, or attempted to monopolize, some portion of the trade or commerce of the realm.”) (Holmes, J., dissenting on other grounds); United States v. E. C. Knight Co., 156 U.S. 1, 25 (1895) (“[A] general restraint of trade has often resulted from combinations formed for the purpose of controlling prices by destroying the opportunity of buyers and sellers to deal with each other upon the basis of fair, open, free competition. Combinations of this character … have always been condemned as illegal because of their necessary tendency to restrain trade. Such combinations are against common right, and are crimes against the public.”) (Harlan, J., dissenting on other grounds); Sir William Erle, Chief Judge of Court of Common Pleas, Law Relating to Trade Unions 5-7 (1869) (“Restraint of trade, according to a general principle of the common law, is unlawful…. [A]t common law every person has individually, and the public also have collectively, a right to require that the course of trade should be kept free from unreasonable obstruction…. [T]he right to a free course for trade is of great importance to commerce and productive industry, and has been carefully maintained by those who have administered the common law.”). |
| ↑61 | See United States v. MMR Corp. (LA), 907 F.2d 489, 497 (5th Cir. 1990) (“[A]n agreement among competitors to fix prices is a per se violation of section 1 of the Sherman Act.”); California ex rel. Harris v. Safeway, Inc., 651 F.3d 1118, 1137 (9th Cir. 2011) (“[M]arket-allocation agreements among competitors at the same market level are per se antitrust violations.”); Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 844 (9th Cir. 1996) (“[A] classic horizontal market division agreement [is one] in which competitors at the same level agree to divide up the market for a given product.”); United States v. Joyce, 895 F.3d 673, 679 (9th Cir. 2018) (“[B]id rigging is per se illegal under Section 1 of the Sherman Act.”). |
| ↑62 | See Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (a per se violation of Section 1 would likely be found upon a proper showing “that defendants actually formed an agreement to fix [] salaries.”); see also In re Ry. Indus. Emp. No-Poach Antitrust Litig., 395 F. Supp. 3d 464, 481 (W.D. Pa. 2019) (“An agreement among employers that they will not compete against each other for the services of a particular employee or prospective employee is, in fact, a service division agreement, analogous to a product division agreement.”) (quoting XII PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 2013b at 148 (3d ed. 2012). |
| ↑63 | See 15 U.S.C. § 1; see also Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 59–61 (1911) (explaining meaning and purpose of Section 1 of the Sherman Act, which prohibits contracts, combinations, and conspiracies in restraint of trade); Ohio v. Am. Express Co., 585 U.S. 529, 540 (2018) (“Section 1 of the Sherman Act prohibits ‘[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States.’ 15 U.S.C. § 1. This Court has long recognized that, in view of the common law and the law in this country when the Sherman Act was passed, the phrase ‘restraint of trade’ is best read to mean ‘undue restraint.’ This Court’s precedents have thus understood § 1 to outlaw only unreasonable restraints.”) (emphasis in original). |
| ↑64 | See Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 88–89 (2021) (“Most restraints challenged under the Sherman Act … are subject to the rule of reason, which (again) we have described as a fact-specific assessment of market power and market structure aimed at assessing the challenged restraint’s actual effect on competition—especially its capacity to reduce output and increase price. Admittedly, the amount of work needed to conduct a fair assessment of these questions can vary. As the NCAA observes, this Court has suggested that sometimes we can determine the competitive effects of a challenged restraint in the twinkling of an eye. That is true, though, only for restraints at opposite ends of the competitive spectrum. For those sorts of restraints—rather than restraints in the great in-between—a quick look is sufficient for approval or condemnation. At one end of the spectrum, some restraints may be so obviously incapable of harming competition that they require little scrutiny…. At the other end, some agreements among competitors so obviously threaten to reduce output and raise prices that they might be condemned as unlawful per se or rejected after only a quick look.”); Winn-Dixie Stores, Inc. v. E. Mushroom Mktg. Coop., Inc., 89 F.4th 430, 438–39 (3d Cir. 2023) (“The rule of reason presumptively applies in § 1 cases. When it does, a plaintiff bears the heavy initial burden of proving that a challenged restraint has a substantial anticompetitive effect that harms consumers in the relevant market. The quick–look approach, by contrast, is an intermediate standard of antitrust scrutiny, under which a court instead presumes the plaintiff has met her initial burden. It applies only where per se condemnation is inappropriate, but where no elaborate industry analysis is required to demonstrate the anticompetitive character of an inherently suspect restraint.”). |
| ↑65 | See California Dental Ass’n v. FTC, 526 U.S. 756, 779–81 (1999) (“The truth is that our categories of analysis of anticompetitive effect are less fixed than terms like ‘per se,’ ‘quick look,’ and ‘rule of reason’ tend to make them appear. We have recognized, for example, that there is often no bright line separating per se from Rule of Reason analysis, since considerable inquiry into market conditions may be required before the application of any so-called per se condemnation is justified. Whether the ultimate finding is the product of a presumption or actual market analysis, the essential inquiry remains the same—whether or not the challenged restraint enhances competition…. There is always something of a sliding scale in appraising reasonableness, but the sliding scale formula deceptively suggests greater precision than we can hope for. Nevertheless, the quality of proof required should vary with the circumstances…. [T]here is generally no categorical line to be drawn between restraints that give rise to an intuitively obvious inference of anticompetitive effect and those that call for more detailed treatment. What is required, rather, is an enquiry meet for the case, looking to the circumstances, details, and logic of a restraint. The object is to see whether the experience of the market has been so clear, or necessarily will be, that a confident conclusion about the principal tendency of a restriction will follow from a quick (or at least quicker) look, in place of a more sedulous one. And of course what we see may vary over time, if rule-of-reason analyses in case after case reach identical conclusions.”). |
| ↑66 | See PLS.Com, LLC v. Nat’l Ass’n of Realtors, 32 F.4th 824, 833 (9th Cir. 2022) (“Some practices are so harmful to competition and so rarely prove justified that the antitrust laws do not require proof that an agreement of that kind is, in fact, anticompetitive in the particular circumstances. These practices are per se violations of the Sherman Act, and we presume that they are anticompetitive without inquiry into the particular market context in which they are found.”). |
| ↑67 | See Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995) (“[C]ausal antitrust injury … is an element of all antitrust suits brought by private parties seeking damages under Section 4 of the Clayton Act. Under Section 4, private plaintiffs can be compensated only for injuries that the antitrust laws were intended to prevent. To show antitrust injury, a plaintiff must prove that his loss flows from an anticompetitive aspect or effect of the defendant’s behavior, since it is inimical to the antitrust laws to award damages for losses stemming from acts that do not hurt competition. If the injury flows from aspects of the defendant’s conduct that are beneficial or neutral to competition, there is no antitrust injury, even if the defendant’s conduct is illegal per se.”). |
| ↑68 | See United States v. MMR Corp. (LA), 907 F.2d 489, 497 (5th Cir. 1990) (“[A]n agreement among competitors to fix prices is a per se violation of section 1 of the Sherman Act.”); California ex rel. Harris v. Safeway, Inc., 651 F.3d 1118, 1137 (9th Cir. 2011) (“M]arket-allocation agreements among competitors at the same market level are per se antitrust violations.”); Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 844 (9th Cir. 1996) (“[A] classic horizontal market division agreement [is one] in which competitors at the same level agree to divide up the market for a given product.”); United States v. Joyce, 895 F.3d 673, 679 (9th Cir. 2018) (“[B]id rigging is per se illegal under Section 1 of the Sherman Act.”); Todd v. Exxon Corp., 275 F.3d 191, 198 (2d Cir. 2001) (a per se violation of Section 1 would likely be found upon a proper showing “that defendants actually formed an agreement to fix [] salaries.”); see also In re Ry. Indus. Emp. No-Poach Antitrust Litig., 395 F. Supp. 3d 464, 481 (W.D. Pa. 2019) (“An agreement among employers that they will not compete against each other for the services of a particular employee or prospective employee is, in fact, a service division agreement, analogous to a product division agreement.”) (quoting XII PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 2013b at 148 (3d ed. 2012). |
| ↑69 | See Chase Mfg., Inc. v. Johns Manville Corp., 84 F.4th 1157, 1178 (10th Cir. 2023) (“Section 1 of the Sherman Act prohibits unreasonable restraints on trade. We have analyzed tying arrangements under this broad prohibition. A tying arrangement is an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier…. Indeed, the crux of tying lies in the seller’s exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer might have preferred to purchase elsewhere on different terms. We have reasoned that tying arrangements can be used for good or for ill…. We allow plaintiffs to prove either per se tying or unreasonable tying under the rule of reason. Id. A per se tying claim requires proof that (1) two separate products are involved; (2) the sale or agreement to sell one product is conditioned on the purchase of the other; (3) the seller has sufficient economic power in the tying product market to enable it to restrain trade in the tied product market; and (4) a ‘not insubstantial’ amount of interstate commerce in the tied product is affected. The rule of reason requires consideration of these factors alongside the “procompetitive justifications for the tying arrangement” and “the effects of that arrangement in both the tying and tied markets.”). |
| ↑70 | See Smith v. Pro Football, Inc., 593 F.2d 1173, 1178 (D.C. Cir. 1978) (“The classic group boycott is a concerted attempt by a group of competitors at one level to protect themselves from competition from non-group members who seek to compete at that level. Typically, the boycotting group combines to deprive would-be competitors of a trade relationship which they need in order to enter (or survive in) the level wherein the group operates. The group may accomplish its exclusionary purpose by inducing suppliers not to sell to potential competitors, by inducing customers not to buy from them, or, in some cases, by refusing to deal with would-be competitors themselves. In each instance, however, the hallmark of the group boycott is the effort of competitors to barricade themselves from competition at their own level.”) (quoting L.A. Sullivan, Antitrust 230, 232, 244–45 (1977)); see also PLS.Com, LLC v. Nat’l Ass’n of Realtors, 32 F.4th 824, 835 (9th Cir. 2022) (“Precisely which group boycotts qualify as per se violations of the Sherman Act has been a source of confusion for decades…. [A] group boycott generally falls into the per se category if the boycotting firms possess a dominant position in the relevant market, they cut off access to a supply, facility, or market necessary to enable the boycotted firm to compete, and the practice is not justified by plausible arguments that it was intended to enhance overall efficiency and make markets more competitive.”). |
| ↑71 | See Blough v. Holland Realty, Inc, 574 F.3d 1084, 1088–89 (9th Cir. 2009) (“A tying arrangement suffers per se condemnation if a plaintiff proves: (1) that the defendant tied together the sale of two distinct products or services; (2) that the defendant possesses enough economic power in the tying product market to coerce its customers into purchasing the tied product; and (3) that the tying arrangement affects a not insubstantial volume of commerce in the tied product market.”); Illinois Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28, 46 (2006) ([I]n all cases involving a tying arrangement, the plaintiff must prove that the defendant has market power in the tying product.”); see also Flaa v. Hollywood Foreign Press Ass’n, 55 F.4th 680, 689 (9th Cir. 2022) (group boycott becomes unlawful per se only when (1) a “group of competitors cuts off access to a supply, facility, or market necessary to enable the boycotted firm to compete”; (2) “the group possesses a dominant position in the relevant market”; and (3) “the criticized practice is not justified by plausible arguments that it is intended to enhance overall efficiency and make markets more competitive.”). |
| ↑72 | See California ex rel. Harris v. Safeway, Inc., 651 F.3d 1118, 1134 (9th Cir. 2011) (“[A] certain class of restraints, while not unambiguously in the per se category, may require no more than cursory examination to establish that their principal or only effect is anticompetitive. Stated another way, the rule of reason analysis can sometimes be applied in the twinkling of an eye. The Supreme Court explained in California Dental Ass’n v. FTC that this truncated rule of reason or ‘quick look’ antitrust analysis may be appropriately used where an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets. The object is to see whether the experience of the market has been so clear, or necessarily will be, that a confident conclusion about the principal tendency of a restriction will follow from a quick (or at least quicker) look, in place of a more sedulous one. Full rule of reason treatment is unnecessary where the anticompetitive effects are clear even in the absence of a detailed market analysis.”). |
| ↑73 | See State Oil Co. v. Khan, 522 U.S. 3, 10 (1997) (“Although the Sherman Act, by its terms, prohibits every agreement ‘in restraint of trade,’ this Court has long recognized that Congress intended to outlaw only unreasonable restraints. As a consequence, most antitrust claims are analyzed under a ‘rule of reason,’ according to which the finder of fact must decide whether the questioned practice imposes an unreasonable restraint on competition, taking into account a variety of factors, including specific information about the relevant business, its condition before and after the restraint was imposed, and the restraint’s history, nature, and effect.”). |
| ↑74 | See Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69, 88–89 (2021) (“Most restraints challenged under the Sherman Act … are subject to the rule of reason, which (again) we have described as a fact-specific assessment of market power and market structure aimed at assessing the challenged restraint’s actual effect on competition—especially its capacity to reduce output and increase price.”). |
| ↑75 | See generally AREEDA AND HOVENKAMP, FUNDAMENTALS OF ANTITRUST LAW (3d. ed. 2010), §§16.09 et seq. (explaining the “structured rule of reason,” which entails shifting burdens of proof); Law v. NCAA,134 F.3d 1010, 1019 (10th Cir. 1998) (“Courts have imposed a consistent structure on rule of reason analysis by casting it in terms of shifting burdens of proof.”); see also Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1413 (9th Cir. 1991) (“To meet his initial burden [for a rule-of-reason challenge under Section 1], plaintiff must show that the activity is the type that restrains trade and that the restraint is likely to be of significant magnitude. Ordinarily, a plaintiff to do this must delineate a relevant market and show that the defendant plays enough of a role in that market to impair competition significantly.”); United States v. Brown Univ. in Providence in State of R.I., 5 F.3d 658, 669 (3d Cir. 1993) (“If a plaintiff meets his initial burden of adducing adequate evidence of market power or actual anti-competitive effects, the burden shifts to the defendant to show that the challenged conduct promotes a sufficiently pro-competitive objective…. To rebut, the plaintiff must demonstrate that the restraint is not reasonably necessary to achieve the stated objective.”). |
| ↑76 | See Systemcare, Inc. v. Wang Labs. Corp., 117 F.3d 1137, 1138 (10th Cir. 1997) (a party obliged by its counterparty to assent to an anticompetitive contract can challenge it on antitrust grounds, alleging that the counterparty is unlawfully restraining trade by its contractual restraints); US Airways, Inc. v. Sabre Holdings Corp., 938 F.3d 43, 48-49 (2d Cir. 2019) (affirming right of plaintiff, an airline carrier, to allege that its counterparty’s standard contractual terms restrain trade in violation of Section 1). |
| ↑77 | See In re Cipro Cases I & II (2015) 61 Cal.4th 116, 160 ( “[California’s] Cartwright Act is broader in range and deeper in reach than the Sherman Act.”); Cianci v. Superior Ct. (1985) 40 Cal.3d 903, 919 (“While no direct sources for the legislative history of the Cartwright Act exist, we may reasonably assume that the Legislature’s intent was substantially similar to that of United States Senator John Reagan, who authored an unsuccessful bill offered as a substitute for what became the Sherman Act; the Cartwright Act is a near carbon copy of the Reagan bill. At the very least, the Sherman Act codified the common law. The Reagan bill was intended to reach further. The record of congressional debates reveals that the Reagan bill was designed not to narrow the scope of the Sherman Act but to broaden it.”). |
| ↑78 | See Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051, 1054–55 (9th Cir. 1999) (“[T]he Supreme Court in Associated General identified certain factors for determining whether a plaintiff who has borne an injury has antitrust standing. These factors include: (1) the nature of the plaintiff’s alleged injury; that is, whether it was the type the antitrust laws were intended to forestall; (2) the directness of the injury; (3) the speculative measure of the harm; (4) the risk of duplicative recovery; and (5) the complexity in apportioning damages. To conclude that there is antitrust standing, a court need not find in favor of the plaintiff on each factor. Generally no single factor is decisive. Instead, we balance the factors. Nevertheless, we give great weight to the nature of the plaintiff’s alleged injury. In fact, the Supreme Court has noted that a showing of antitrust injury is necessary, but not always sufficient, to establish standing under § 4.”); In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 157 (2d Cir. 2016) (“An antitrust plaintiff must show both constitutional standing and antitrust standing at the pleading stage. Harm to the antitrust plaintiff is sufficient to satisfy the constitutional standing requirement of injury in fact, but the court must make a further determination whether the plaintiff is a proper party to bring a private antitrust action. Antitrust standing is a threshold, pleading-stage inquiry and when a complaint by its terms fails to establish this requirement we must dismiss it as a matter of law. The limitation of antitrust standing to a proper party arose because antitrust law has long recognized that defendants who may have violated a provision of the antitrust statutes are not liable to every person who can persuade a jury that he suffered a loss in some manner that might conceivably be traced to the conduct of the defendants. To satisfy the antitrust standing requirement, a private antitrust plaintiff must plausibly allege that (i) it suffered an antitrust injury and (ii) it is an acceptable plaintiff to pursue the alleged antitrust violations.”); Gelboim v. Bank of Am. Corp., 823 F.3d 759, 777–78 (2d Cir. 2016) (“The second question that bears on antitrust standing is whether appellants satisfy the efficient enforcer factors. Even if we were to conclude that the plaintiffs had adequately stated an antitrust injury, that would not necessarily establish their standing to sue in this case. A showing of antitrust injury is necessary, but not always sufficient, to establish standing…. The four efficient enforcer factors are: (1) the directness or indirectness of the asserted injury, which requires evaluation of the chain of causation linking appellants’ asserted injury and the [defendants’] alleged price-fixing; (2) the existence of more direct victims of the alleged conspiracy; (3) the extent to which appellants’ damages claim is highly speculative; and (4) the importance of avoiding either the risk of duplicate recoveries on the one hand, or the danger of complex apportionment of damages on the other.”). |
| ↑79 | See Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990) (“The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.”); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (To qualify as antitrust injury, “[t]he injury should reflect the anticompetitive effect either of the violation or of anti-competitive acts made possible by the violation.”); see also Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051, 1055 (9th Cir. 1999) (the doctrine of antitrust injury requires an antitrust plaintiff to (1) identify an antitrust violation, (2) show how it has impaired competition, and (3) show how this impairment of competition has caused losses to the antitrust plaintiff.); Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995) (the doctrine of antitrust injury requires a private plaintiff to “prove that his loss flows from an anticompetitive aspect or effect of the defendant’s behavior….”). |
| ↑80 | See Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 770–773 (1984) (explaining the intra-enterprise doctrine). |
| ↑81 | Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 96 (2d Cir. 1998) (to prevail on a claim for a rule-of-reason violation of Section 1 of the Sherman Act, “a plaintiff initially must show that the challenged action had an actual adverse effect on competition as a whole in the relevant market”) (emphasis in original); PLS.Com, LLC v. Nat’l Ass’n of Realtors, 32 F.4th 824, 834 (9th Cir. 2022) (“A plaintiff can establish a substantial anticompetitive effect for purposes of the first step of the rule of reason analysis either directly or indirectly. To prove a substantial anticompetitive effect directly, the plaintiff must provide proof of actual detrimental effects on competition such as reduced output, increased prices, or decreased quality in the relevant market…. To prove a substantial anticompetitive effect indirectly, a plaintiff must show that the defendants have market power in the relevant market and that the challenged restraint harms competition.”). |
| ↑82 | See PLS.Com, 32 F.4th at 834. |
| ↑83 | See PLS.Com, 32 F.4th at 834. |
| ↑84 | See United States v. Brown Univ. in Providence in State of R.I., 5 F.3d 658, 669 (3d Cir. 1993) (“If a plaintiff meets his initial burden of adducing adequate evidence of market power or actual anti-competitive effects, the burden shifts to the defendant to show that the challenged conduct promotes a sufficiently pro-competitive objective…. To rebut, the plaintiff must demonstrate that the restraint is not reasonably necessary to achieve the stated objective.”). |
| ↑85 | See id. |
| ↑86 | See United States v. Grinnell Corp., 384 U.S. 563, 570–71 (1966) (“The offense of monopoly under s 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.”); United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001) (“A firm violates § 2 only when it acquires or maintains, or attempts to acquire or maintain, a monopoly by engaging in exclusionary conduct….[T]o be condemned as exclusionary, a monopolist’s act must have an ‘anticompetitive effect.’ That is, it must harm the competitive process and thereby harm consumers. In contrast, harm to one or more competitors will not suffice.”); Verizon Commc’ns Inc. v. L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) (“[T]he possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.”). |
| ↑87 | Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456 (1993) (“[T]o demonstrate attempted monopolization a plaintiff must prove (1) that the defendant has engaged in predatory or anticompetitive conduct with (2) a specific intent to monopolize and (3) a dangerous probability of achieving monopoly power. In order to determine whether there is a dangerous probability of monopolization, courts have found it necessary to consider the relevant market and the defendant’s ability to lessen or destroy competition in that market.”). |
| ↑88 | See Auraria Student Hous. at the Regency, LLC v. Campus Vill. Apartments, LLC, 843 F.3d 1225, 1243 (10th Cir. 2016) (“§ 2 conspiracy claims require a different showing than is required for § 2 monopolization and attempt claims. Monopolization and attempt claims under § 2 require proof that a defendant’s conduct actually monopolizes or dangerously threatens to do so. In contrast, defendants might be convicted of a conspiracy to monopolize without ever having acquired the power to carry out the object of the conspiracy, i.e., to exclude actual and potential competitors from the relevant market.”); Howard Hess Dental Lab’ys Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 253 (3d Cir. 2010) (“A Section 2 conspiracy claim has four elements: (1) an agreement to monopolize; (2) an overt act in furtherance of the conspiracy; (3) a specific intent to monopolize; and (4) a causal connection between the conspiracy and the injury alleged.”). |
| ↑89 | See Broadcom Corp. v. Qualcomm Inc., 501 F.3d 297, 308 (3d Cir. 2007) (The offense of monopolization means the “willful acquisition or maintenance of monopoly power” that entails “some anticompetitive conduct on the part of the possessor.” Anticompetitive conduct, in turn, “is generally defined as conduct to obtain or maintain monopoly power as a result of competition on some basis other than the merits.”). |
| ↑90 | See Microsoft, 253 F.3d at 51 (“While merely possessing monopoly power is not itself an antitrust violation, it is a necessary element of a monopolization charge.”). |
| ↑91 | See Verizon, 540 U.S. 398, 407 (2004) (“[T]he possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.”). |
| ↑92 | See United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 389 (1956) (“[A] party has monopoly power if it has, over ‘any part of the trade or commerce among the several states’, a power of controlling prices or unreasonably restricting competition.”). A firm vested with this power can profitably charge supracompetitive prices for an extended duration—i.e., it can durably charge prices higher than those that it could charge in a competitive market and do so without losing so many sales as to make the practice unprofitable.(((See Microsoft, 253 F.3d at 51 (“The Supreme Court defines monopoly power as the power to control prices or exclude competition. More precisely, a firm is a monopolist if it can profitably raise prices substantially above the competitive level.”). |
| ↑93 | See generally AREEDA AND HOVENKAMP, FUNDAMENTALS OF ANTITRUST LAW (Wolters Kluwer, 3d. ed. 2009), § 5.01. |
| ↑94 | See id. |
| ↑95 | See United States v. Google LLC, 747 F. Supp. 3d 1, 117 (D.D.C. 2024) (“A barrier to entry is any market condition that makes entry more costly or time-consuming and thus reduces the effectiveness of potential competition as a constraint on the pricing behavior of the dominant firm regardless of who is responsible for the existence of that condition. Common entry barriers include: patents or other legal licenses, control of essential or superior resources, entrenched buyer preferences, high capital entry costs, and economies of scale.”); see also United States v. Syufy Enters., 903 F.2d 659, 667 (9th Cir. 1990) (a “network of exclusive contracts or distribution arrangements designed to lock out potential competitors” constitutes a barrier to entry). |
| ↑96 | See Microsoft, 253 F.3d at 51 (D.C. Cir. 2001) (“[A] firm is a monopolist if it can profitably raise prices substantially above the competitive level. Where evidence indicates that a firm has in fact profitably done so, the existence of monopoly power is clear. Because such direct proof is only rarely available, courts more typically examine market structure in search of circumstantial evidence of monopoly power. Under this structural approach, monopoly power may be inferred from a firm’s possession of a dominant share of a relevant market that is protected by entry barriers. Entry barriers are factors (such as certain regulatory requirements) that prevent new rivals from timely responding to an increase in price above the competitive level.”). |
| ↑97 | See Cascade Health Sols. v. PeaceHealth, 515 F.3d 883, 894 (9th Cir. 2008) (“Anticompetitive conduct is behavior that tends to impair the opportunities of rivals and either does not further competition on the merits or does so in an unnecessarily restrictive way.”); Stearns Airport Equip., 170 F.3d at 522 (“Exclusionary conduct under section 2 is the creation or maintenance of monopoly by means other than the competition on the merits…. The key factor courts have analyzed in order to determine whether challenged conduct is or is not competition on the merits is the proffered business justification for the act. If the conduct has no rational business purpose other than its adverse effects on competitors, an inference that it is exclusionary is supported.”); Broadcom,501 F.3d at 308 (Anticompetitive conduct “is generally defined as conduct to obtain or maintain monopoly power as a result of competition on some basis other than the merits.”). |
| ↑98 | See Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 461–62 (1992) (“A tying arrangement is an agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.”) (quoting Northern Pacific R. Co. v. United States, 356 U.S. 1, 5–6 (1958)). |
| ↑99 | See Cascade Health Sols. v. PeaceHealth, 515 F.3d 883, 912–13 (9th Cir. 2008) (“A tying arrangement is a device used by a seller with market power in one product market to extend its market power to a distinct product market. To accomplish this objective, the seller conditions the sale of one product (the tying product) on the buyer’s purchase of a second product (the tied product). Tying arrangements are forbidden on the theory that, if the seller has market power over the tying product, the seller can leverage this market power through tying arrangements to exclude other sellers of the tied product. The Supreme Court has developed a unique per se rule for illegal tying arrangements. For a tying claim to suffer per se condemnation, a plaintiff must prove: (1) that the defendant tied together the sale of two distinct products or services; (2) that the defendant possesses enough economic power in the tying product market to coerce its customers into purchasing the tied product; and (3) that the tying arrangement affects a ‘not insubstantial volume of commerce’ in the tied product market.”); see also Mozart Co. v. Mercedes-Benz of N. Am., Inc., 833 F.2d 1342, 1348 (9th Cir. 1987) (“[A]ntitrust defendants may demonstrate a business justification for an otherwise per se illegal tying arrangement.”). |
| ↑100 | See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012) (“An exclusive dealing arrangement is an agreement in which a buyer agrees to purchase certain goods or services only from a particular seller for a certain period of time.”); Most exclusive-dealing arrangements are lawful and serve important commercial purposes.(((See McWane, Inc. v. FTC, 783 F.3d 814, 827 (11th Cir. 2015) (“[E]xclusive dealing arrangements are common and can be procompetitive, particularly in competitive markets….”); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 76 (3d Cir. 2010) (“[E]xclusive supply contracts or exclusive dealing agreements have been frequently upheld when challenged on antitrust grounds.”). |
| ↑101 | See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012) (“Exclusive dealing agreements are often entered into for entirely procompetitive reasons, and generally pose little threat to competition…. For example, in the case of the buyer, they may assure supply, afford protection against rises in price, enable long-term planning on the basis of known costs, and obviate the expense and risk of storage in the quantity necessary for a commodity having a fluctuating demand. From the seller’s perspective, an exclusive dealing arrangement with customers may reduce expenses, provide protection against price fluctuations, and offer the possibility of a predictable market.”); E. Food Servs., Inc. v. Pontifical Cath. Univ. Servs. Ass’n, Inc., 357 F.3d 1, 8 (1st Cir. 2004) (“[E]xclusive dealing contracts are not disfavored by the antitrust laws. Rather, it is widely recognized that in many circumstances they may be highly efficient—to assure supply, price stability, outlets, investment, best efforts or the like—and pose no competitive threat at all.”). |
| ↑102 | See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 271 (3d Cir. 2012) (“In some cases, a dominant firm may be able to foreclose rival suppliers from a large enough portion of the market to deprive such rivals of the opportunity to achieve the minimum economies of scale necessary to compete…. The legality of an exclusive dealing arrangement depends on whether it will foreclose competition in such a substantial share of the relevant market so as to adversely affect competition.”); United States v. Dentsply Int’l, Inc., 399 F.3d 181, 191 (3d Cir. 2005) (“The test is not total foreclosure, but whether the challenged practices bar a substantial number of rivals or severely restrict the market’s ambit.”). A defendant can always invoke business justifications for its exclusive-dealing arrangement, and most such arrangements are found to be lawful.(((See United States v. Microsoft Corp., 253 F.3d 34, 71 (D.C. Cir. 2001) (“Plaintiffs having demonstrated a harm to competition, the burden falls upon [Defendant] to defend its exclusive dealing contracts … by providing a procompetitive justification for them.”); ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 270 (3d Cir. 2012) (“Exclusive dealing agreements are often entered into for entirely procompetitive reasons, and generally pose little threat to competition.”). |
| ↑103 | See ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 271–72 (3d Cir. 2012) (“There is no set formula for evaluating the legality of an exclusive dealing agreement, but modern antitrust law generally requires a showing of significant market power by the defendant, contracts of sufficient duration to prevent meaningful competition by rivals, and an analysis of likely or actual anticompetitive effects considered in light of any procompetitive effects. Courts will also consider whether there is evidence that the dominant firm engaged in coercive behavior, and the ability of customers to terminate the agreements. The use of exclusive dealing by competitors of the defendant is also sometimes considered.”). |
| ↑104 | see CoStar Grp., Inc. v. Com. Real Est. Exch., Inc., 141 F.4th 1075, 1084 (9th Cir. 2025) (“Section 1 supports several theories of antitrust liability, including [Plaintiff’s] theory of exclusive dealing. To state an exclusive dealing claim under § 1, a plaintiff must plausibly allege (1) the existence of an exclusive agreement that (2) forecloses competition in a substantial share of the relevant market.”) (citing Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171, 1180 (9th Cir. 2016)); Epic Games, Inc. v. Apple, Inc., 67 F.4th 946, 996–97 (9th Cir. 2023) (“A tie can be unlawful [under Section 1 of the Sherman Act] pursuant to either a modified per se rule or the Rule of Reason.”). |
| ↑105 | See LePage’s Inc. v. 3M, 324 F.3d 141, 157 (3d Cir. 2003) (“Even though exclusivity arrangements are often analyzed under § 1, such exclusionary conduct may also be an element in a § 2 claim.”) (citing U.S. Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 589, 593 (1st Cir.1993); Chase Mfg., Inc. v. Johns Manville Corp., 84 F.4th 1157, 1170 (10th Cir. 2023) (“Some common forms of anticompetitive conduct [sufficient to support a claim under Section 2] are tying, exclusive dealing, predatory pricing, and defrauding regulators or consumers.”). |
| ↑106 | see Standard Oil Co. of California v. United States, 337 U.S. 293, 297, n.4 (1949) (“[Section] 3 of the Clayton Act was directed to prohibiting specific practices [tying arrangements and exclusive dealing that were likely to result in a substantial lessening of competition in a relevant market]”). |
| ↑107 | See Moore v. James H. Matthews & Co., 550 F.2d 1207, 1214 (9th Cir. 1977) (“To prevail on a s 3 theory, however, items must be ‘goods, wares, merchandise, machinery, supplies or other commodities.'”) (quoting Section 3 of the Clayton Act). |
| ↑108 | See 15 U.S.C. §§13–13c. |
| ↑109 | See FTC v. Anheuser-Busch, Inc., 363 U.S. 536, 543 (1960) (“The legislative history of s 2(a) is equally plain. The section, when originally enacted as part of the Clayton Act in 1914, was born of a desire by Congress to curb the use by financially powerful corporations of localized price-cutting tactics which had gravely impaired the competitive position of other sellers.”). |
| ↑110 | See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 222–224 (1993) (“[W]hether the claim alleges predatory pricing under § 2 of the Sherman Act or primary-line price discrimination under the Robinson–Patman Act, two prerequisites to recovery remain the same. First, a plaintiff seeking to establish competitive injury resulting from a rival’s low prices must prove that the prices complained of are below an appropriate measure of its rival’s costs…. The second prerequisite to holding a competitor liable under the antitrust laws for charging low prices is a demonstration that the competitor had a reasonable prospect, or, under § 2 of the Sherman Act, a dangerous probability, of recouping its investment in below-cost prices.”). |
| ↑111 | See Volvo Trucks N. Am., Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164, 176 (2006) (“Our decisions describe three categories of competitive injury that may give rise to a Robinson–Patman Act claim: primary line, secondary line, and tertiary line. Primary-line cases entail conduct—most conspicuously, predatory pricing—that injures competition at the level of the discriminating seller and its direct competitors. Secondary-line cases, of which this is one, involve price discrimination that injures competition among the discriminating seller’s customers…; cases in this category typically refer to “favored” and “disfavored” purchasers. Tertiary-line cases involve injury to competition at the level of the purchaser’s customers.”). |
| ↑112 | See id., 546 U.S. at 176–77 (“To establish the secondary–line injury of which it complains, [plaintiff] had to show that (1) the relevant [sales of commodities] were made in interstate commerce; (2) the [commodities in question] were of ‘like grade and quality’; (3) [Defendant] ‘discriminated in price’ between Plaintiff and another purchaser of [the commodities]; and (4) ‘the effect of such discrimination may be to injure, destroy, or prevent competition’ to the advantage of a favored purchaser….”); see also George Haug Co. v. Rolls Royce Motor Cars Inc., 148 F.3d 136, 141 (2d Cir. 1998) (“In order to establish secondary–line price discrimination under section 2(a), a plaintiff has the burden of establishing four facts: (1) that seller’s sales were made in interstate commerce; (2) that the seller discriminated in price as between the two purchasers; (3) that the product or commodity sold to the competing purchasers was of the same grade and quality; and (4) that the price discrimination had a prohibited effect on competition. A private plaintiff who has proved a violation of section 2(a) must, in order to recover damages under § 4 of the Clayton Act, demonstrate that it suffered actual injury to its business or property as a result of the price discrimination.”). |
| ↑113 | See 15 U.S.C. § 18; see also FTC v. Procter & Gamble Co., 386 U.S. 568, 577 (1967) (“Section 7 of the Clayton Act was intended to arrest the anticompetitive effects of market power in their incipiency. The core question is whether a merger may substantially lessen competition, and necessarily requires a prediction of the merger’s impact on competition, present and future.”); |
| ↑114 | Compare United States v. Von’s Grocery Co., 384 U.S. 270, 275–77 (1966) (“Like the Sherman Act in 1890 and the Clayton Act in 1914, the basic purpose of the 1950 Celler-Kefauver Act was to prevent economic concentration in the American economy by keeping a large number of small competitors in business…. The dominant theme pervading congressional consideration of the 1950 amendments was a fear of what was considered to be a rising tide of economic concentration in the American economy. To arrest this ‘rising tide’ toward concentration into too few hands and to halt the gradual demise of the small businessman, Congress decided to clamp down with vigor on mergers. It both revitalized s 7 of the Clayton Act by ‘plugging its loophole’ and broadened its scope so as not only to prohibit mergers between competitors, the effect of which ‘may be substantially to lessen competition, or to tend to create a monopoly’ but to prohibit all mergers having that effect. By using these terms in s 7 which look not merely to the actual present effect of a merger but instead to its effect upon future competition, Congress sought to preserve competition among many small businesses by arresting a trend toward concentration in its incipiency before that trend developed to the point that a market was left in the grip of a few big companies.”) with Hosp. Corp. of Am. v. FTC, 807 F.2d 1381, 1386 (7th Cir. 1986) (“When an economic approach is taken in a section 7 case, the ultimate issue is whether the challenged acquisition is likely to facilitate collusion. In this perspective the acquisition of a competitor has no economic significance in itself; the worry is that it may enable the acquiring firm to cooperate (or cooperate better) with other leading competitors on reducing or limiting output, thereby pushing up the market price.”). |
| ↑115 | See 15 U.S.C. § 18a; see also Mattox v. FTC, 752 F.2d 116, 119–20 (5th Cir. 1985) (“The 1976 Hart–Scott–Rodino Act has three titles…. Title II requires parties to certain acquisitions to file pre-merger notification materials with either the FTC or the Department of Justice and to wait a statutorily defined period of time before proceeding with the merger. The statute was designed to allow review of mergers before they were completed. It reflects a congressional judgment that divestiture and other post-acquisition remedies were difficult, expensive and sometimes futile. It was thought that Title II of the Act would give the government: ‘a meaningful chance to win a premerger injunction—which is often the only effective and realistic remedy against large, illegal mergers—before the assets, technology, and management of the merging firms are hopelessly and irreversibly scrambled together, and before competition is substantially and perhaps irremediably lessened, in violation of the Clayton Act.'”). |
| ↑116 | See Sandcrest Outpatient Servs., P.A. v. Cumberland Cnty. Hosp. Sys., Inc., 853 F.2d 1139, 1142 (4th Cir. 1988) (“Congress enacted the Local Government Antitrust Act of 1984, 15 U.S.C. § 34, et seq., (“LGAA” or the “Act”) in order to broaden the scope of antitrust immunity applicable to local governments…. Both the House and the Senate, however, were careful to observe that the immunity being provided to local governments was immunity from suits for damages, and not immunity from suits seeking injunctive relief.); see also R. Ernest Cohn, D.C., D.A.B.C.O. v. Bond, 953 F.2d 154, 157 (4th Cir. 1991) (“The LGAA provides immunity to any local government, official or employee acting in an official capacity from money damages in an antitrust case…. The LGAA also provides immunity to a person who is not an employee or official if that person is “engaged in ‘official action directed by a government or official or employee thereof.’”). A plaintiff that obtains an antitrust injunction against a local agency, however, is entitled to recover its reasonable attorney’s fees under Section 16 of the Clayton Act (15 U.S.C. § 26).(((See Hosp. v. Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991) (“[The Local Government Antitrust Act of 1984] precludes the recovery of damages, costs, or attorneys fees, on the basis of 15 U.S.C. §§ 15, 15a, or 15c, from local government entities. However, the provision that mandates that costs and attorneys fees be awarded to plaintiffs who substantially prevail in actions for injunctive relief is 15 U.S.C. § 26.”). |
| ↑117 | See Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 344 (1990) (“The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.”); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977) (To qualify as antitrust injury, “[t]he injury should reflect the anticompetitive effect either of the violation or of anti-competitive acts made possible by the violation.”); see also Am. Ad Mgmt., Inc. v. Gen. Tel. Co. of California, 190 F.3d 1051, 1055 (9th Cir. 1999) (the doctrine of antitrust injury requires an antitrust plaintiff to (1) identify an antitrust violation, (2) show how it has impaired competition, and (3) show how this impairment of competition has caused losses to the antitrust plaintiff.); Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995) (the doctrine of antitrust injury requires a private plaintiff to “prove that his loss flows from an anticompetitive aspect or effect of the defendant’s behavior….”). |
| ↑118 | See Brunswick, 429 U.S. at 489. |
| ↑119 | See 15 U.S.C. § 15(a); J.T. Gibbons, Inc. v. Crawford Fitting Co., 790 F.2d 1193, 1194–95 (5th Cir. 1986), aff’d and remanded, 482 U.S. 437 (1987) (“15 U.S.C. § 15 provides for the award of attorneys’ fees and the costs of suit to a prevailing plaintiff. Crawford, as a prevailing defendant, cannot fit within this statute.”). |
| ↑120 | See J.T. Gibbons, 790 F.2d at 1195 (“[W]e agree with the Second, Sixth and Seventh Circuits that 15 U.S.C. § 15 does not authorize the taxing of excess expert witness’ fees as costs.”). |
| ↑121 | see 15 U.S.C. §§ 1–2, 4, 15a |
| ↑122 | see 15 U.S.C. §§ 45 et seq. |
| ↑123 | See 15 U.S.C. §§ 1–2, 4. |
| ↑124 | See United States v. Aiyer, 33 F.4th 97, 115 (2d Cir. 2022) (“[I]n a criminal antitrust case alleging conduct falling within the per se rule, the government need prove only that the offense conduct occurred in order to win its case, there being no other elements to the offense and no allowable defense. The paradigmatic example of a per se illegal restraint on trade under the Sherman Act is a horizontal conspiracy to fix prices with competitors. In addition, the Supreme Court has held that the practice of allocating markets is subject to the per se rule. Moreover, we have ruled that bid rigging—which is simply another “form of horizontal price fixing”—is a per se violation of the Sherman Act.”); but cf. United States v. Brewbaker, 87 F.4th 563, 576 (4th Cir. 2023) (finding that the “the indictment here alleged a restraint that was both horizontal and vertical,” so that at least some of the challenged conduct did not constitute a core cartel offense). |
| ↑125 | See United States v. All Star Indus., 962 F.2d 465, 474, n. 18 (5th Cir. 1992) (“A price fixing conspiracy under the Sherman Act is not a crime requiring proof of a ‘specific intent’ to restrain trade or to violate the law. The intent element of a per se offense is established by evidence that the defendant agreed to engage in conduct that is per se illegal; the government is not required to prove that the defendant knew his actions were illegal or that he specifically intended to restrain trade or to violate the law.”); American Tobacco Co. v. United States, 328 U.S. 781, 809-10 (1946) (“No formal agreement is necessary to constitute an unlawful conspiracy…. Where the circumstances are such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement, the conclusion that a conspiracy is established is justified.”); Interstate Circuit, Inc. v. United States, 306 U.S. 208, 227, 59 S.Ct. 467, 474, 83 L.Ed. 610 (1939) (“Acceptance by competitors, without previous agreement, of an invitation to participate in a plan, the necessary consequence of which, if carried out, is restraint of interstate commerce, is sufficient to establish unlawful conspiracy under the Sherman Act.”); United States v. MMR Corp., 907 F.2d 489, 495 (5th Cir.1990) (“The government … is not required to prove a formal, express agreement with all the terms precisely set out and clearly understood by the conspirators…. It is enough that the government shows that the defendants accepted an invitation to join in a conspiracy whose object was unlawfully restraining trade.”); United States v. Young Brothers, Inc., 728 F.2d 682, 687 (5th Cir.) (“In order to prove that appellant actually intended to enter into the bidrigging conspiracy, the government was required to show that appellant knowingly joined or participated in the conspiracy.”); United States v. Brown, 936 F.2d 1042, 1045-46 (9th Cir.1991) (“it was unnecessary to instruct the jury that intent to produce anticompetitive effects is an element of the offense of which [defendants] were convicted.”). |
| ↑126 | See Apex Hosiery Co. v. Leader, 310 U.S. 469, 497 (1940) (“The common law doctrines relating to contracts and combinations in restraint of trade were well understood long before the enactment of the Sherman law. They were contracts for the restriction or suppression of competition in the market, agreements to fix prices, divide marketing territories, apportion customers, restrict production and the like practices, which tend to raise prices or otherwise take from buyers or consumers the advantages which accrue to them from free competition in the market. Such contracts were deemed illegal and were unenforcible at common law. But the resulting restraints of trade were not penalized and gave rise to no actionable wrong. Certain classes of restraints were not outlawed when deemed reasonable, usually because they served to preserve or protect legitimate interests, previously existing, of one or more parties to the contract.”); see also ALBERT H. WALKER, HISTORY OF THE SHERMAN LAW OF THE UNITED STATES OF AMERICA (1910) (digitized by Google) at 14 (“[W]hat is this bill? A remedial statute to enforce, by civil process in the courts of the United States, the common law against monopolies. How is such a law to be construed ? Liberally, with a view to promote its object.”) (quoting Senator John Sherman, a co-drafter and the principal sponsor of the Sherman Act); 36 Cong. Rec. 522 (Jan. 6, 1903) (“We undertook by law to clothe the courts with the power and impose on them and the Department of Justice the duty of preventing all combinations in restraint of trade. It was believed that the phrase ‘in restraint of trade’ had a technical and well-understood meaning in the law.”) (statement of Senator Hoar, a co-drafter of the Sherman Act). |