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Elai Katz Elai Katz

Several recent decisions tackled a fundamental, and sometimes hotly contested, preliminary issue in many antitrust cases—the applicable standard of review for evaluating the legality of a restraint of trade. In one case, involving the Department of Justice’s criminal suit against firms that find potential heirs and help them collect their inheritance, the district court reconsidered its prior ruling that the conduct and industry were too novel and unusual to warrant summary (per se) condemnation and, following guidance from the appellate court, decided to evaluate the government’s customer allocation charges under the per se rule. In several criminal appeals involving real estate foreclosure auctions, defendants argued unsuccessfully that their alleged bid rigging did not impact pricing or output and should not have been presented to the jury as per se offenses.

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