From a Per Se Rule to the Rule of Reason for Non-Price-Fixing Cartels
Page 27/75 Date 04.04.2021 Size 236.98 Kb.
Socony-Vacuum Oil (1940) – Per Se Rule
Sherman Act §1 – cartel agreements that affect the market through naked restraints such as price-fixing are per se illegal d/n have to define the market!
Coordinated action without an agreement is not per se illegal
Rejects reasonableness as a necessary inquiry b/c “would emasculate the Sherman Act”
U.S. government can sue for a conspiracy, but a private party cannot w/o antitrust injury
BMI (1979) – Rule of Reason
Rule of Reason analysis applies unless it is a naked restraint on trade ( per se rule)
Must focus on whether market power created the effect and if the purpose of the practice was to threaten competition
Limits Per Se Rule to pricing agreements that are output limiting and bad for consumers
Complainant bears burden of proof that there is an agreement to fix prices and limit output
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