Section 1 of the Sherman Act, which is codified at 15 U.S.C. § 1, forbids any restraint of trade imposed by contract, combination, or conspiracy. A few trade restraints are unlawful per se, but most trade restraints are condemned under Section 1 only if they are shown to lessen competition substantially in a properly defined relevant market.
The term “restraint of trade” was developed at common law in England and refers to conspiracies in restraint of trade and contracts in restraint of trade, which are distinct categories of trade restraints.
A conspiracy in restraint of trade refers to competing sellers (or competing buyers) who collude with one another to allocate sales or fix prices rather than compete for the business of customers (or suppliers).
A contract in restraint of trade typically refers to restrictive covenants set forth in a contract that protect the covenantee from the future competition of the covenantor. Under classical antitrust law, these contracts were illegal restraints of trade when the restriction of future competition was not narrowly tailored to promote the success of a legitimate transaction or collaboration memorialized by the contract: the restriction must have been truly ancillary and subordinate to a legitimate purpose (e.g., the sale of a business, a partner’s departure from a business, an employee’s departure from a business, etc.). It must also have been narrowly tailored to facilitate the success of the legitimate purpose, or else it was unlawful per se in violation of Section 1.
Under modern standards, a contract in restraint of trade can be deemed a violation of Section 1 only if the restraint is wholly unrelated to the underlying transaction or contract or when it is accompanied by a showing of “harm to competition” under the consumer-welfare standard.
We have litigated and advised clients about many different kinds of trade restraints during the past thirty-five years. Our particular focus has been contracts in restraint of trade, including the following categories of contractual restraints:
• Platform restraints – i.e., restrictive conditions imposed by platform operators on those who use their platforms.
• Non-compete restraints, which include non-compete covenants, non-solicitation covenants that operate as de facto non-compete covenants, and no-poaching restraints (agreements between rival employers not to compete for employees).
• Tying arrangements.
• Exclusive-dealing provisions, including provisions that establish de facto exclusive dealing.
• Product-bundling provisions and loyalty discounts.
• MRP and MAP provisions — i.e., contracts that oblige resellers to charge minimum prices.
We also have substantial experience litigating and advising clients about the following kinds of conspiracies in restraint of trade:
• Group boycotts.
• Horizontal price-fixing.
• Horizontal market-allocation.
• Bid-rigging.
• Misuse of standard-essential patents.
Mr. Markham's Articles on Antitrust Law
AN OVERVIEW OF ANTITRUST LAW (By William Markham, ©2000)
"Antitrust law is the law of competition and is perhaps the least understood law of all. This article provides an overview and explanation of the essential principles of antitrust law."
ANTITRUST EXEMPTIONS AND IMMUNITIES (By William Markham, ©2022)
"Over the years, Congress and the federal courts have established various immunities from federal antitrust law, removing from its reach specified commercial activities and even entire lines of commerce."
HOW THE CONSUMER-WELFARE STANDARD TRANSFORMED CLASSICAL ANTITRUST LAW (By William Markham, ©2021)
"Since the late 1970s, antitrust law in the United States has been transformed out of recognition and rendered largely toothless by consumer-welfare jurisprudence....,"
ANTITRUST AND FREE MARKETS (BY William Markham, © 2022)
UNLAWFUL PRICE DISCRIMINATION (By William Markham, © 2013)
WHY ANTITRUST LAWS MATTER (By William Markham, © 2006)
Mr. Markham's Articles on
Trial Procedure and Contract Law
MAKING SENSE OF THE RULES OF EVIDENCE AND PRESENTING YOUR EVIDENCE AT TRIAL (By William Markham, ©2011)
"I try in this article simply to set forth a list of simple rules to explain the key points of the law of evidence. I also offer several pointers on organizing evidence in order to present it competently at trial."
ANATOMY OF A LAWSUIT (By William Markham, ©2007)
"This article is written for non-lawyers, young litigators, and non-litigator attorneys who wish to understand how a lawsuit works in practice from start to finish."
AN OVERVIEW OF CONTRACT LAW (By William Markham, ©2002)
"Contract law lies at the heart of our system of laws and serves as the foundation of our entire society.... Our society depends upon free exchange in the marketplace at every level. Contract law makes this possible."