Illegal Per Se - Antitrust

Antitrust

In the United States, illegal per se often refers to categories of anti-competitive behavior in antitrust law conclusively presumed to be an "unreasonable restraint on trade" and thus anti competitive. The United States Supreme Court has, in the past, determined activities such as price fixing, geographic market division, and group boycott to be illegal per se regardless of the reasonableness of such actions. Traditionally, illegal per se anti-trust acts describe horizontal market arrangements among competitors.

The illegal per se category can trace its origins in the 1898 Supreme Court case Addyston Pipe & Steel Co. v. U.S., 175 U.S. 211 (1898).

A number of cases have subsequently raised doubts about the validity of the illegal per se rule. Under modern Antitrust theories, the traditionally illegal per se categories create more of a presumption of unreasonableness. The court carefully narrowed the per se treatment and began issuing guidelines. Courts and agencies seeking to apply the per se rule must:

1. show "the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output";
2. show that the practice is not "one designed to 'increase economic efficiency and render markets more, rather than less, competitive'";
3. carefully examine market conditions; and
4. absent good evidence of competitiveness behavior, avoid broadening per se treatment to new or innovative business relationships.