The antitrust plaintiff's favorite rule of liability—the per se rule—has through the years served as the cornerstone of substantive analysis under Section 1 of the Sherman Act. Recently, however, the Rule has been rumored to be undergoing hard times in the courts. Such a development, if true, would be of no mean significance to the Antitrust Division of the United States Department of Justice. The scope and application of the per se rule to a given set of facts frequently is the focus of many of the cases with which the Division deals on a day to day basis. The propriety of characterizing a course of conduct as subject to per se liability often determines whether or not a case is appropriate for criminal prosecution. Moreover, even in the civil area, the scope of the per se rule becomes a key factor in structuring the government's approach to litigation.
After the change in membership of the Supreme Court during the days of Chief Justice Warren, and particularly after the Supreme Court's opinions in Continental T. V., Inc. v. GTE Sylvania, Inc., and, more recently, Broadcast Music, Inc. v. Columbia Broadcasting Systems, Inc., many antitrust conferences began predicting the imminent erosion and demise of the per se rule as a tool of antitrust analysis. Many lawyers around the country began, depending upon their perspective, either gleefully or despondently anticipating the ultimate narrowing and perhaps judicial repeal of the per se rule in all but the most extreme cases of anticompetitive purpose and effect. To paraphrase Mark Twain, these reports of death of the per se rule have been grossly exaggerated. Indeed, this fundamental tool of Sherman Act analysis continues to endure and even flourish.
Favretto, Richard J.
"The Per Se Rule: Alive and Well and Living in Catalano,"
University of Dayton Law Review: Vol. 6:
1, Article 3.
Available at: https://ecommons.udayton.edu/udlr/vol6/iss1/3
Richard J. Favretto is a Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice. B.A., Iona College, 1963; LL.B., Catholic University Law School, 1966.
Paper was originally delivered before the 1980 Lyle P. Jones Antitrust Conference, Vacation Village Hotel, San Diego, California.