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.

In another group of cases—civil actions challenging non-solicitation provisions in franchise agreements—courts, litigants and the Department of Justice debated whether those “no-poach” provisions should be reviewed under the per se rule, the rule of reason, or if they should be reviewed under a “quick look,” which lies somewhere in between the per se standard and a full-blown rule of reason analysis, as at least one court had concluded. Taken together, these decisions confirm that established categories of agreements continue to drive the classification of most restraints into per se or rule of reason standards of review. The default rule for most agreements is the rule of reason, where courts evaluate and weigh the harms and benefits. But a limited set of categories, such as price fixing among horizontal competitors, which judicial experience has taught have a pernicious effect on competition and lack any redeeming virtue, are presumed to be unreasonable and treated as per se antitrust violations.

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