Source: law/15usc1.law
# 15 U.S.C. § 1 — Trusts, etc., in restraint of trade illegal; penalty (Sherman Act § 1)
# Reverse-engineered from verbatim statutory text + citing cases in statute_cited_by.json & neov2/cases/15usc1/
law 15usc1
cite 15 U.S.C. § 1
title Trusts, etc., in restraint of trade illegal; penalty (Sherman Antitrust Act § 1)
url https://www.neochart.com/catalog/federal/title_15/section_1/title15_sec1_d96bfd19b1fb/1_trusts_etc_in_restraint_of_trade_illegal_penalty_every_con_0001/index.html
address catalog/federal/title_15/section_1/title15_sec1_d96bfd19b1fb/1_trusts_etc_in_restraint_of_trade_illegal_penalty_every_con_0001/index.html
source ir/usc/title15.jsonl#title15_sec1 sha1=d48cab76c6b52c0f06587877798610f5c968b4c7 chars=993
claim civil : agreement & restraint & (restraint.per-se | restraint.quick-look | restraint.rule-of-reason) & commerce & injury & standing & !x-single-entity & !state-action-immunity & !statute-of-limitations & !x-law-of-the-case
gloss Private civil antitrust action via Clayton Act §§ 4 and 16 (15 U.S.C. §§ 15, 26): requires concerted action between separate economic decisionmakers, an unreasonable restraint of trade evaluated under the applicable mode of analysis (per se, quick look, or rule of reason), interstate/foreign commerce nexus, antitrust injury, and antitrust standing.
claim criminal : agreement & (restraint.per-se | restraint.rule-of-reason) & commerce & intent & !x-single-entity & !statute-of-limitations
gloss Criminal felony prosecution under the second sentence of 15 U.S.C. § 1: per-se and non-per-se routes remain available. United States v. U.S. Gypsum Co., 438 U.S. 422 (1978), requires proof of the appropriate criminal intent for a non-per-se restraint; knowing joinder can suffice for a per-se restraint.
constraint plurality-distinct-from-reasonableness(agreement, restraint) : Whether an arrangement joins separate economic decisionmakers capable of concerted action (Copperweld / American Needle) is a threshold inquiry separate from whether cooperation is necessary or procompetitive under the Rule of Reason.
rule /us/560/0183-01 @15568..15724 | The key is whether the alleged “contract, combination ... , or conspiracy” is concerted action — that is, whether it joins together separate decisionmakers.
rule /us/560/0183-01 @23082..23195 | The justification for cooperation is not relevant to whether that cooperation is concerted or independent action.
constraint per-se-presumes-intent(restraint.per-se, intent) : In criminal per se prosecutions, intent to restrain trade is satisfied by knowing participation in the conspiracy without separate proof of intent to produce anticompetitive effects.
rule /f2d/845/1367-01 @22567..22702 | the government need only prove (1) the existence of the alleged agreement and (2) that defendants knowingly entered into the conspiracy
rule /f2d/845/1367-01 @23032..23117 | In cases involving an alleged per se violation, intent to restrain trade is presumed.
element agreement : and
name Concerted action ("contract, combination ... or conspiracy") between separate economic decisionmakers
text @57..133 | Every contract, combination in the form of trust or otherwise, or conspiracy
text @270..330 | make any contract or engage in any combination or conspiracy
rule /us/560/0183-01 @15568..15724 | The key is whether the alleged “contract, combination ... , or conspiracy” is concerted action — that is, whether it joins together separate decisionmakers.
rule /us/560/0183-01 @17655..17960 | Because the inquiry is one of competitive reality, it is not determinative that two parties to an alleged § 1 violation are legally distinct entities. Nor, however, is it determinative that two legally distinct entities have organized themselves under a single umbrella or into a structured joint venture.
rule /us/550/0544-01 @13170..13306 | we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made.
rule /us/550/0544-01 @14304..14548 | Hence, when allegations of parallel conduct are set out in order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.
rule /f3d/496/0403-01 @8505..8715 | To establish concerted action, the plaintiff must present “evidence that reasonably tends to prove that the [defendants] had a conscious commitment to a common scheme designed to achieve an unlawful objective.”
rule /f2d/589/0451-01 @11362..11517 | It is fundamental that a single person or economic entity cannot combine or conspire in isolation: there must be concerted action by a plurality of actors.
rule /f-supp-3d/360/0730-01 @18441..18587 | standard of Rule 9(b), and accordingly, plaintiffs can allege an antitrust conspiracy by pleading circumstantial evidence of an illegal agreement.
not-required Formal or express written/oral contract; tacit agreement or conscious commitment to a common scheme suffices (Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984))
not-required Heightened Rule 9(b) particularity at the pleading stage, provided the complaint pleads enough factual matter (such as parallel conduct plus "plus factors") to plausibly suggest an agreement (Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007))
variant concerted-action/separately-owned-teams-licensing-ip-collectively | Independently owned sports teams acting through a common licensing entity (American Needle)
variant direct-evidence/immunized-coconspirator-testimony-of-meeting | Direct participant testimony establishing horizontal agreement (Cooperative Theatres)
gloss 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).
element agreement.x-monsanto-exclusion-of-independent-action : or
name Conditional Monsanto / Matsushita inference: evidence tending to exclude the possibility of independent action when circumstantial proof is used
text @57..133 | Every contract, combination in the form of trust or otherwise, or conspiracy
rule /f3d/117/1137-01 @26210..26374 | Evidence that the buyer acquiesces in a tying arrangement will unequivocally “exclude the possibility that the manufacturer and [buyers] were acting independently.”
rule /f2d/361/0874-01 @11025..11300 | As long as Colgate has any life in it, however, a simple announcement of policy followed by customer acquiescence based solely on the individual self-interest of the customer in continued dealings with the manufacturer is not an agreement within the reach of the Sherman Act.
gloss This is a conditional evidentiary inference used when the alleged agreement is proved circumstantially; it is not a universal additional element where direct agreement evidence is offered. Under Monsanto (465 U.S. at 764) and Matsushita (475 U.S. at 588), circumstantial evidence must tend to exclude independent action.
element restraint : and
name Unreasonable restraint of trade (Standard Oil Co. v. United States)
text @135..168 | in restraint of trade or commerce
rule /f3d/117/1137-01 @5624..5851 | A tying arrangement constitutes an unreasonable restraint of trade if “the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”
rule /f-supp-3d/377/0506-01 @28564..28973 | 2d 168 (1993) ("Even an act of pure malice by one business competitor against another does not, without more, state a claim under the federal antitrust laws"); 3 AREEDA & HOVENKAMP , ANTITRUST LAW supra, P651d, at 80 ("In the presence of substantial market power, some kinds of tortious behavior could anticompetitively create or sustain a monopoly, [but] it is wrong categorically to condemn such practices .
gloss 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`).
element restraint.per-se : or
name Per se illegality for naked restraints manifestly anticompetitive and lacking redeeming virtue
text @135..168 | in restraint of trade or commerce
rule /us/547/0001-01 @4525..4701 | Price-fixing agreements between two or more competitors, otherwise known as horizontal price-fixing agreements, fall into the category of arrangements that are per se unlawful.
rule /us/547/0001-01 @6453..6688 | As a single entity, a joint venture, like any other firm, must have the discretion to determine the prices of the products that it sells, including the discretion to sell a product under two different brands at a single, unified price.
rule /us/551/0877-01 @10049..10185 | As a consequence, the per se rule is appropriate only after courts have had considerable experience with the type of restraint at issue,
rule /us/551/0877-01 @25368..25540 | Vertical agreements establishing minimum resale prices can have either procompetitive or anticompetitive effects, depending upon the circumstances in which they are formed.
rule /us/560/0183-01 @28918..29134 | When “restraints on competition are essential if the product is to be available at all,” per se rules of illegality are inapplicable, and instead the restraint must be judged according to the flexible Rule of Reason.
rule /f3d/922/0713-01 @1312..1501 | To be per se illegal, a defendant's conduct has to be so obviously anticompetitive that it has no plausibly procompetitive features-a high hurdle for plaintiffs claiming restraint of trade.
rule /f2d/845/1367-01 @19471..19622 | This is plainly a form of customer allocation and, hence, is the type of “naked restraint” which triggers application of the per se rule of illegality.
rule /f3d/907/1264-01 @4890..5255 | As to the former, the Defendants acknowledged that customer allocation agreements are generally analyzed under the per se rule, but nonetheless they argued that "in the atypical context of the heir location business the [agreement] is far from an ordinary customer allocation, and instead bears more in common with joint ventures analyzed under the rule of reason[.
rule /f3d/916/0160-01 @11677..11921 | Then, the court inquired whether the challenged provision brought about facially, or per se , unlawful restraints on trade, in which case they are preempted, or restraints that are subject to rule of reason scrutiny, in which case they are not.
not-required Proof of relevant market definition, market power, or actual anticompetitive effects once a restraint is properly classified as per se unlawful (Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5 (1958); Cooperative Theatres)
variant horizontal-customer-allocation/no-solicitation-of-existing-accounts | Naked horizontal agreement between competitors not to solicit each other's existing customers (Cooperative Theatres)
variant no-per-se/single-price-set-by-lawful-integrated-joint-venture | Unified pricing by an economically integrated joint venture is not per se unlawful (Texaco v. Dagher)
gloss Reserved for horizontal price fixing (Socony-Vacuum), bid rigging, horizontal market/customer allocation (Palmer v. BRG; Cooperative Theatres), certain horizontal group boycotts denying access to an essential facility/market (Northwest Wholesale Stationers; Tunica Web), and tying where the seller has appreciable economic power in the tying product market (Jefferson Parish). Vertical minimum and maximum resale price maintenance are no longer per se unlawful (Leegin, 551 U.S. 877 (2007); State Oil v. Khan, 522 U.S. 3 (1997)).
element restraint.quick-look : or
name Quick-look / truncated Rule of Reason analysis for restraints with obvious anticompetitive effects
text @135..168 | in restraint of trade or commerce
rule /us/547/0001-01 @10393..10581 | we have applied the quick look doctrine to business activities that are so plainly anticompetitive that courts need undertake only a cursory examination before imposing antitrust liability
gloss Applied when "an observer with even a rudimentary understanding of economics could conclude that the arrangements in question would have an anticompetitive effect on customers and markets" (California Dental Ass'n v. FTC, 526 U.S. 756, 770 (1999); NCAA v. Board of Regents, 468 U.S. 85 (1984)).
element restraint.rule-of-reason : or
name Presumptive Rule of Reason burden-shifting analysis (antitrust market + anticompetitive effect vs procompetitive justification)
text @135..168 | in restraint of trade or commerce
rule /f2d/845/1367-01 @9969..10143 | There is a general presumption in favor of applying the rule of reason standard except in those cases where the alleged agreement or activity is “manifestly anticompetitive.”
rule /us/551/0877-01 @32031..32164 | Resale price maintenance should be subject to more careful scrutiny, by contrast, if many competing manufacturers adopt the practice.
rule /us/551/0877-01 @32676..32880 | If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer.
rule /f-supp/864/1175-01 @17680..17911 | If the antitrust violation involves “ ‘a naked restriction on price or output’ ” or, similarly, if a plaintiff can provide “‘proof of actual detrimental effects,’ ” failure to prove market power will not defeat a plaintiff’s claim.
gloss Default standard under § 1 (Ohio v. American Express Co., 585 U.S. 529 (2018); Leegin): three-step burden-shifting framework: (1) plaintiff proves substantial anticompetitive effect in a defined relevant product and geographic market (directly via reduced output/supercompetitive prices, or indirectly via market power + anticompetitive structure); (2) defendant proffers nonpretextual procompetitive justifications; (3) plaintiff shows the efficiencies could be reasonably achieved through less anticompetitive means.
element restraint.market-power : and
name Relevant product/geographic market definition and market power under the Rule of Reason
text @135..168 | in restraint of trade or commerce
rule /us/551/0877-01 @33439..33636 | As a final matter, that a dominant manufacturer or retailer can abuse resale price maintenance for anticompetitive purposes may not be a serious concern unless the relevant entity has market power.
rule /f-supp/864/1175-01 @34369..34441 | Plaintiff must, therefore, define the market and establish market power.
rule /f-supp-2d/385/0740-01 @29159..29421 | there appears to be no authority (and indeed none is found in the cases North Jackson cites) to support the notion that substantial market power is a sufficient, rather than a necessary, basis for finding that a given restraint is per se unlawful under Section 1
gloss Under the Rule of Reason (absent direct proof of actual detrimental effects on price or output under FTC v. Indiana Federation of Dentists, 476 U.S. 447 (1986)), plaintiff must define a relevant product and geographic market and prove defendants possess market power within it.
element x-ancillary-restraints : or
name Ancillary restraints doctrine (restraint subordinate and collateral to a legitimate productive integration)
text @135..168 | in restraint of trade or commerce
rule /us/547/0001-01 @7102..7275 | That doctrine governs the validity of restrictions imposed by a legitimate business collaboration, such as a business association or joint venture, on nonventure activities.
rule /f-supp-2d/385/0740-01 @16295..16610 | Naked restraints are unlikely to have any redeeming value and so are usually accorded per se treatment. But ancillary restraints that “may contribute to the success of a cooperative venture that promises greater productivity and output” (id. at 189) demand the more thorough analysis provided by the rule of reason.
gloss 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.
element x-horizontal-cartel-via-dual-distribution : or
name Horizontal cartel / hub-and-spoke conspiracy operating through vertical or dual-distribution arrangements
text @57..133 | Every contract, combination in the form of trust or otherwise, or conspiracy
rule /us/551/0877-01 @32676..32880 | If there is evidence retailers were the impetus for a vertical price restraint, there is a greater likelihood that the restraint facilitates a retailer cartel or supports a dominant, inefficient retailer.
gloss 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.
element commerce : and
name Restraint of trade or commerce among the several States or with foreign nations
text @169..218 | among the several States, or with foreign nations
rule /f3d/117/1137-01 @5624..5851 | A tying arrangement constitutes an unreasonable restraint of trade if “the seller has ‘appreciable economic power’ in the tying product market and if the arrangement affects a substantial volume of commerce in the tied market.”
gloss 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).
element intent : and
name Criminal mens rea: knowing participation in the conspiracy or intent to restrain trade
text @361..395 | shall be deemed guilty of a felony
rule /f2d/845/1367-01 @22567..22702 | the government need only prove (1) the existence of the alleged agreement and (2) that defendants knowingly entered into the conspiracy
rule /f2d/845/1367-01 @23032..23117 | In cases involving an alleged per se violation, intent to restrain trade is presumed.
not-required Proof in a criminal per se case that defendants specifically intended to produce anticompetitive effects or knew the probable anticompetitive effects (Cooperative Theatres, 845 F.2d at 1373)
gloss 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.
element injury : and
name Private antitrust injury and fact of damage (Clayton Act §§ 4, 16; Brunswick Corp. v. Pueblo Bowl-O-Mat)
text @220..245 | is declared to be illegal
xref 15 U.S.C. § 15(a) (Clayton Act § 4) | any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor ... and shall recover threefold the damages by him sustained
rule /f-supp/864/1175-01 @4861..4990 | To be a proper party, a plaintiff must have suffered an antitrust injury and must be an efficient enforcer of the antitrust laws.
rule /f2d/361/0874-01 @32593..32738 | a plaintiff in an antitrust suit is not barred merely because factors other than defendant’s unlawful conduct may have contributed to its injury.
not-required Proof that the antitrust violation was the *sole* cause of the plaintiff's injury, so long as it was a material and substantial cause (Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9 (1969); Ford v. Webster's Auto Sales)
gloss 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.
element injury.amount : and
name Quantum / reasonable estimate of antitrust damages once fact of damage is established
text @220..245 | is declared to be illegal
xref 15 U.S.C. § 15(a) | shall recover threefold the damages by him sustained
rule /f2d/361/0874-01 @33417..33585 | Once the fact of damage has been established, reasonable evidence from which the trier of fact might rationally infer the amount of that damage is all that is required.
gloss Courts distinguish between the strict burden of proving the *fact* of antitrust injury/damage and the more relaxed standard for estimating the *amount* of damages (Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555 (1931); Bigelow v. RKO Radio Pictures, 327 U.S. 251 (1946)).
element standing : and
name Antitrust standing / efficient enforcer test (Associated General Contractors; Illinois Brick)
text @220..245 | is declared to be illegal
xref 15 U.S.C. § 15(a) | any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws
rule /f-supp-3d/366/0516-01 @21172..21365 | This language has been interpreted in this Circuit to mean that a plaintiff alleging antitrust claims must establish antitrust standing in addition to constitutional standing under Article III.
rule /f-supp/864/1175-01 @4861..4990 | To be a proper party, a plaintiff must have suffered an antitrust injury and must be an efficient enforcer of the antitrust laws.
rule /f-supp/864/1175-01 @23502..23645 | A second factor is the nature of the plaintiffs damages claims. Id. If the claims are highly speculative,' the plaintiff may not have standing.
gloss 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).
defense x-single-entity : defense
name Copperweld / American Needle single-entity incapacity to conspire
text @57..133 | Every contract, combination in the form of trust or otherwise, or conspiracy
rule /us/560/0183-01 @23082..23195 | The justification for cooperation is not relevant to whether that cooperation is concerted or independent action.
rule /f2d/589/0451-01 @14913..14980 | it is fundamental that an agent cannot conspire with his principal.
variant single-entity/sports-league-joint-venture | Sports league teams licensing intellectual property through a jointly owned entity are separate decisionmakers, not a single entity (American Needle)
gloss 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).
defense state-action-immunity : defense
name Parker v. Brown state-action immunity (Midcal two-prong test: clearly articulated state policy + active state supervision)
text @57..133 | Every contract, combination in the form of trust or otherwise, or conspiracy
rule /f3d/916/0160-01 @11677..11921 | Then, the court inquired whether the challenged provision brought about facially, or per se , unlawful restraints on trade, in which case they are preempted, or restraints that are subject to rule of reason scrutiny, in which case they are not.
gloss 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).
defense statute-of-limitations : defense
name Statute of limitations (4-year civil under 15 U.S.C. § 15b; 5-year criminal under 18 U.S.C. § 3282)
text @247..360 | Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal
xref 15 U.S.C. § 15b | Any action to enforce any cause of action under section 15, 15a, or 15c of this title shall be forever barred unless commenced within four years after the cause of action accrued
rule /f-supp-3d/366/0516-01 @21172..21365 | This language has been interpreted in this Circuit to mean that a plaintiff alleging antitrust claims must establish antitrust standing in addition to constitutional standing under Article III.
gloss 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.).
defense x-law-of-the-case : defense
name Law-of-the-case doctrine in consolidated/MDL antitrust proceedings
text @220..245 | is declared to be illegal
rule /f-supp-3d/351/0698-01 @10860..10956 | In an MDL proceeding, each lawsuit consolidated within the MDL must independently state a claim.
gloss Procedural defense invoked where prior rulings in a multidistrict litigation address overlapping conspiracy allegations.