Concerted Action Among Competitors (Restraints of Trade)
Sherman Act § 1 (1890): "Every contract, combination in the form of a trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared illegal."
- Contract, combination, or conspiracy (CCC): governs agreements (explicit or tacit) between parties (doesn't apply to single-firm behavior)
- Restraint of trade (ROT): defined by the common law, enables courts to change interpretation
- Jurisdictional hooks: "among the several States" = interstate commerce, "with foreign nations" = international cartels
General approach: look at evidence of harm, look at justifications
- Per se illegal: there was almost definitely harm (often proved through direct evidence) without any legally cognizable justification
- Abbreviated rule of reason/quick look: there was almost definitely harm, but there is a legally cognizable justification - however, the restraint is "overly broad"
- Full rule of reason: unclear if there is harm and, if there was harm, there is a very good justification - a full investigation is required to evaluate