Per Se Analysis
Cases on the boundary of per se illegality: overlap of potentially illegal agreements with otherwise legitimate business activities'
- Topco (grocery brand)
- BRG (non-compete in licensing contract)
- NSPE / IN Dentists / CDA (professional associations)
- NCAA (competitive league)
- Dagher (joint venture)
Considerations on the boundary of per se illegality:
- Is the restriction too broad relative to any lawful purpose? Topco, NSPE
- Would prohibition prevent equivalent market organization by low-cost, substitute means?
- Topco: probably not, co-op can still operate without geographic restrictions and stores can achieve geographic spacing without cooperation
- BMI: certainly in the short term, blanket license may be unavailable if per se illegal
- Is there direct or indirect evidence of anticompetitive harm or market power?
- NSPE and BRG: evidence of price increases
- Topco: evidence suggests that competitive harm was unlikely