Antitrust Volume 1

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and apply antitrust doctrine. Volume 1 of the casebook covers the District of Columbia Circuit and the First Circuit through the Fifth 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 never taken a literal approach to [ 1's] language. Rather the Court has repeated time and again that 1 outlaw[s] only unreasonable restraints." Leegin Creative Leather Prods., Inc., v. PSKS, Inc., 551 U.S. 877, 884, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (citations and internal quotation marks omitted) (emphasis added). The general analytical approach, then, is to evaluate alleged violations of 1 under the rule of reason. Id. That rule tells "the factfinder [to] weigh[] all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition." Id. at 885, 127 S.Ct. 2705. Circumstances to consider include information about the business, the restraint's history and effect, and the business's market power. Id. at 885-86, 127 S.Ct. 2705. * * * Although the rule of reason is the default mode of analysis, some practices so clearly violate 1 that they are deemed unreasonable per se. "Restraints that are per se unlawful include horizontal agreements among competitors to fix prices[.]" Id. at 886, 127 S.Ct. 2705. "To p.727 justify a per se prohibition a restraint must have manifestly anticompetitive effects and lack any redeeming virtue." Id. (citations, internal quotation marks, and alteration omitted). Courts have "expressed reluctance to adopt per se rules with regard to restraints imposed in the context of business relationships where the economic impact of certain practices is not immediately obvious." Id. at 887, 127 S.Ct. 2705. Rather, "the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue, and only if courts can predict with confidence that it would be invalidated in all or almost all instances under the rule of reason[.]" Id. at 886-87, 127 S.Ct. 2705 (citations and internal quotation marks omitted). In Re Processed Egg Products Antitrust Litigation, 962 F. 3d 719 (3rd Cir. 2020)