Antitrust Volume 2

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply antitrust doctrine. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals. * * * 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. The Supreme Court "has long recognized that, '[i]n 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.'" Am. Express, 138 S. Ct. at 2283 (alteration in original) (quoting Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 59-60, 31 S.Ct. 502, 55 L.Ed. 619 (1911)); see also State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) (noting that 1 of the Sherman Act is understood "to outlaw only unreasonable restraints") (emphasis added) (citation omitted). Thus, p.989 "[t]o establish liability under 1, a plaintiff must prove (1) the existence of an agreement, and (2) that the agreement was in unreasonable restraint of trade." Aerotec Int'l, Inc. v. Honeywell Int'l, Inc., 836 F.3d 1171, 1178 (9th Cir. 2016) (emphasis added) (citing Am. Needle, Inc. v. Nat'l Football League, 560 U.S. 183, 189-90, 130 S.Ct. 2201, 176 L.Ed.2d 947 (2010))."Restraints that are not unreasonable per se are judged under the 'rule of reason.'" Am. Express, 138 S. Ct. at 2283 (quoting Business Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723, 108 S.Ct. 1515, 99 L.Ed.2d 808 (1988)). "The rule of reason requires courts to conduct a fact-specific assessment of 'market power and market structure ... to assess the [restraint]'s actual effect' on competition." Id. (alterations in original) (emphasis added) (quoting Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)); see also In re Nat'l Football League's Sunday Ticket Antitrust Litig., 933 F.3d 1136, 1150 (9th Cir. 2019) ("Under this rule, we examine 'the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed, ' to determine the effect on competition in the relevant product market." (quoting Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978))). "The goal is to 'distinguis[h] between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating competition that are in the consumer's best interest.'" Am. Express, 138 S. Ct. at 2284 (alteration in original) (quoting Leegin Creative Leather Prods., 551 U.S. at 886, 127 S.Ct. 2705). FTC v. Qualcomm Inc., 969 F. 3d 974 (9th Cir. 2020)