15 U.S.C. § 1

Elements

  1. Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers

    Every contract, combination in the form of trust or otherwise, or conspiracy

    Encompasses two distinct sub-inquiries: (1) capacity/plurality of actors (Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984); American Needle), and (2) existence/proof of an actual agreement rather than unilateral conduct (United States v. Colgate & Co., 250 U.S. 300 (1919)) or mere conscious parallelism (Twombly; Matsushita). The Copperweld / American Needle "single entity" argument is this element, route capacity-to-conspire, not a separate defense (it was modelled twice until taxonomy v1.2: also as `defense x-single-entity`). Mirror image of `agreement` plurality: a parent corporation and its wholly owned subsidiary (Copperweld, 467 U.S. 752 (1984)), or a corporation and its officers/employees/agents acting on its behalf (Harvey v. Fearless Farris), are a single economic actor incapable of conspiring under § 1; however, legally single joint ventures controlled by separate potential competitors acting on separate economic interests are not immune (American Needle).

  2. Unreasonable restraint of trade (Standard Oil Co. v. United States)

    in restraint of trade or commerce

    Because every commercial contract restrains trade in some literal sense, § 1 outlaws only *unreasonable* restraints of trade (Standard Oil Co. v. United States, 221 U.S. 1 (1911); State Oil Co. v. Khan, 522 U.S. 3, 10 (1997)), evaluated via one of three analytical modes (`restraint.per-se`, `restraint.quick-look`, or `restraint.rule-of-reason`).

  3. Ancillary restraints doctrine (restraint subordinate and collateral to a legitimate productive integration)

    in restraint of trade or commerce

    Distinguishes naked restraints (per se) from restraints reasonably ancillary to an efficiency-enhancing integration or cooperative venture (evaluated under the Rule of Reason), though Dagher holds core activity of a lawful integrated joint venture (setting the price of its own product) does not even implicate the ancillary-restraints inquiry.

  4. Horizontal cartel / hub-and-spoke conspiracy operating through vertical or dual-distribution arrangements

    Every contract, combination in the form of trust or otherwise, or conspiracy

    Even after Leegin placed vertical resale price maintenance under the Rule of Reason, a horizontal cartel among competing retailers or manufacturers Policed via vertical agreements remains per se unlawful.

  5. Restraint of trade or commerce among the several States or with foreign nations

    among the several States, or with foreign nations

    Under Summit Health, Ltd. v. Pinhas (500 U.S. 322 (1991)) and McLain v. Real Estate Board of New Orleans (444 U.S. 232 (1980)), satisfied if the restraint is either "in" interstate commerce or concerns general business activities that have a "not insubstantial effect" on interstate commerce (and for foreign commerce, subject to the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a).

  6. Criminal mens rea: knowing participation in the conspiracy or intent to restrain trade

    shall be deemed guilty of a felony

    In civil cases, unlawful intent or anticompetitive effect suffices (United States v. U.S. Gypsum Co., 438 U.S. 422, 436 n.13 (1978)). In non-per-se criminal prosecutions (Gypsum), the government must prove either knowledge that the conduct would produce anticompetitive effects or purpose to produce them; in per se criminal prosecutions, knowing joinder in the price-fixing/allocation agreement suffices.

  7. Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat)

    is declared to be illegal

    Under Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. (429 U.S. 477, 489 (1977)), plaintiff must prove "antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful" — harm to competition, not merely harm to an individual competitor.

  8. Antitrust standing / efficient enforcer test (Associated General Contractors; Illinois Brick)

    is declared to be illegal

    Under Associated General Contractors of Cal., Inc. v. Carpenters (459 U.S. 519 (1983)), courts balance: (1) causal connection and antitrust injury, (2) directness of the injury (and the Illinois Brick bar on indirect-purchaser damages suits), (3) speculative nature of damages, (4) risk of duplicative recovery or complex apportionment, and (5) existence of more direct victims ("efficient enforcer" factors).

  9. Parker v. Brown state-action immunity (Midcal two-prong test: clearly articulated state policy + active state supervision)

    Every contract, combination in the form of trust or otherwise, or conspiracy

    Under Parker v. Brown (317 U.S. 341 (1943)) and California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc. (445 U.S. 97 (1980)), state-action immunity shields non-sovereign/private actors only when (1) the challenged restraint is clearly articulated and affirmatively expressed as state policy, and (2) the policy is actively supervised by the State itself (and hybrid state-mandated pricing rules that compel private per se conduct without active supervision are preempted, 324 Liquor / Schwegmann / Connecticut Fine Wine).

  10. Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282)

    Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal

    Accrues when a defendant commits an overt act that injures the plaintiff's business (Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971)), subject to continuing-violation and fraudulent-concealment doctrines; criminal conspiracies run from the last overt act in furtherance of the conspiracy (United States v. Kissel; United States v. Kemp & Assocs.).

  11. Law-of-the-case doctrine in consolidated/MDL antitrust proceedings

    is declared to be illegal

    Procedural defense invoked where prior rulings in a multidistrict litigation address overlapping conspiracy allegations.

Cases

  1. North Jackson Pharmacy, Inc. v. Caremark Rx, Inc. 385 F. Supp. 2d 740 (2005)

    civil; putative class action by independent pharmacies against pharmacy benefits manager; after denial of 12(b)(6), defendant's Rule 16 issue-narrowing motion to fix rule of reason (not per se) as the standard for Claim I; granted (result: not-decided)

  2. In re Interest Rate Swaps Antitrust Litig. 351 F. Supp. 3d 698 (2018)

    civil; MDL; later-filed group-boycott complaint by a third trading platform (trueEX) against swap-dealer banks; defendants' 12(b)(6) motion denied as to the Sherman Act claim (result: claimant-won)

  3. City of Rockford v. Mallinckrodt ARD, Inc. 360 F. Supp. 3d 730 (2019)

    civil putative class action by two self-insured payors against a drug manufacturer and its exclusive distributor under §§ 1 and 2 (Counts VII, VI) plus state-law and RICO claims; Rule 12(b)(6) motions; denied as to Rockford's federal antitrust claims, granted without prejudice (leave to replead) as to Acument's for want of antitrust standing (result: mixed)

  4. Freedom Watch, Inc. v. Google, Inc. 368 F. Supp. 3d 30 (2019)

    civil; conservative organization and activist sued four technology platforms under Sherman Act §§ 1 and 2, the D.C. Human Rights Act and the First Amendment; Rule 12(b)(1) and 12(b)(6) motion; Article III standing found, all claims dismissed for failure to state a claim (§ 1: no agreement plausibly alleged) (result: claimant-lost)

  5. Maui Jim, Inc. v. Smartbuy Guru Enters. 386 F. Supp. 3d 926 (2019)

    civil trademark suit by manufacturer against unauthorized online reseller; reseller's § 1 counterclaim (Count III) attacks the manufacturer's distributor contracts; manufacturer's Rule 12(b)(6) motion granted with prejudice for want of antitrust injury and of a plausible relevant market (result: claimant-lost)

  6. Levine v. Central Florida Medical Affiliates, Inc. 864 F. Supp. 1175 (1994)

    civil; private damages suit by excluded physician; defendants' motions for partial summary judgment on Count III (hospital privilege suspension) and Count I (closed-panel PPO) granted (result: claimant-lost)

  7. Ford Motor Co. v. Webster's Auto Sales, Inc. 361 F.2d 874 (1966)

    civil treble-damages suit by excluded used-car dealer against manufacturer; jury verdicts for plaintiff (liability, then retrial on damages); defendant appeals denial of directed verdict and JNOV (result: claimant-won)

  8. Harvey v. Fearless Farris Wholesale, Inc. 589 F.2d 451 (1979)

    civil; cut-off retail gasoline customers v. wholesaler and five affiliated retail corporations all owned by one man; summary judgment for defendants on Sherman Act count; plaintiffs appeal (result: claimant-lost)

  9. United States v. Cooperative Theatres of Ohio, Inc. 845 F.2d 1367 (1988)

    criminal; jury convictions of one corporation and its vice president; defendants appeal the per se instruction and sufficiency of the evidence (result: claimant-won)

  10. Tunica Web Advertising v. Tunica Casino Operators Ass'n 496 F.3d 403 (2007)

    civil; group-boycott claim by domain-name owner against casinos; summary judgment for defendants; plaintiff appeals (result: remanded)

  11. United States v. Kemp & Assocs., Inc. 907 F.3d 1264 (2018)

    criminal; single-count § 1 indictment (customer allocation); district court ordered the case tried under the rule of reason and dismissed the indictment as time-barred; on the government's appeal CA10 reversed the limitations dismissal on the face of the indictment, dismissed the appeal of the rule-of-reason order for want of jurisdiction under 18 U.S.C. § 3731, denied mandamus, and remanded (result: remanded)

  12. Connecticut Fine Wine & Spirits, LLC v. Seagull 916 F.3d 160 (2019)

    civil; liquor retailer sued Connecticut regulators for declaratory and injunctive relief, claiming the State's post-and-hold, minimum-retail-price and price-discrimination provisions are facially preempted by § 1; district court granted motion to dismiss; CA2 affirmed (result: claimant-lost)

  13. LLM Bar Exam, LLC v. Barbri, Inc. 922 F.3d 136 (2019)

    civil; bar-review company for foreign LL.M. students sued a rival bar-review company and law schools under §§ 1 and 2 and RICO, alleging a conspiracy to exclude it from law school campuses; district court dismissed the complaint under Rule 12(b)(6); CA2 affirmed per curiam, adopting the district court's reasoning (result: claimant-lost)

  14. Med. Ctr. At Elizabeth Place, LLC v. Atrium Health Sys. 922 F.3d 713 (2019)

    civil; physician-owned hospital sued a hospital joint venture under § 1, pleading only a per se group-boycott claim (no rule-of-reason claim); after an earlier appeal on single-entity status, a successor district judge reconsidered and granted summary judgment for defendants; CA6 affirmed (result: claimant-lost)

  15. IQ Dental Supply, Inc. v. Henry Schein, Inc. 924 F.3d 57 (2019)

    civil; dental-supply distributor sued the three dominant distributors under § 1 and state law, alleging they conspired to boycott an online sales portal, its partner dental associations and the plaintiff itself; district court dismissed for lack of antitrust standing; CA2 affirmed as to the indirect-boycott allegations and vacated and remanded as to the direct boycott of the plaintiff (the price-fixing claim was not pursued on appeal) (result: mixed)

  16. Paramount Media Grp., Inc. v. Vill. of Bellwood 929 F.3d 914 (2019)

    civil; billboard company sued village and competitor under §§ 1 and 2 (and the Constitution) over a municipal ban on new billboard permits and the lease of village-owned property to the competitor; district court entered summary judgment for defendants; CA7 affirmed (result: claimant-lost)

  17. Mucky Duck v. Directv, LLC (In re Nat'l Football League's Sunday Ticket Antitrust Litig.) 933 F.3d 1136 (2019)

    civil; Sunday Ticket subscribers sued the NFL, its teams and DirecTV under §§ 1 and 2, challenging the pooling of telecast rights and the exclusive satellite distribution agreement; district court dismissed the complaint under Rule 12(b)(6); CA9 reversed (result: remanded)

  18. Texaco Inc. v. Dagher 547 U.S. 1 (2006)

    civil class action (service station owners v. joint-venture parents); summary judgment for defendants reversed by CA9; certiorari; only question is whether per se (or quick look) condemnation applies to the venture's own pricing (result: claimant-lost)

  19. Bell Atlantic Corp. v. Twombly 550 U.S. 544 (2007)

    civil putative class action (telephone/internet subscribers v. incumbent local carriers); Rule 12(b)(6) dismissal reversed by CA2; certiorari on the standard for pleading a § 1 conspiracy through parallel conduct (result: claimant-lost)

  20. Leegin Creative Leather Products, Inc. v. PSKS, Inc. 551 U.S. 877 (2007)

    civil treble-damages suit by terminated discounting retailer against manufacturer; jury verdict for plaintiff under per se rule (expert on procompetitive effects excluded), affirmed by CA5; certiorari on whether to overrule Dr. Miles (result: remanded)

  21. American Needle, Inc. v. National Football League 560 U.S. 183 (2010)

    civil; summary judgment for defendants on single-entity defense, affirmed by CA7; certiorari; only the antecedent question whether the league, teams and their licensing corporation are capable of concerted action is decided (result: remanded)