Editor
Troutman Pepper Locke LLP |
Contributors
Troutman Pepper Locke LLP | Samantha R. Weber Troutman Pepper Locke LLP |
Katherine R. Hancin Troutman Pepper Locke LLP | Kimberly Veklerov Troutman Pepper Locke LLP |
§ 2.1. Introduction
Antitrust litigation in 2024 included a number of cases addressing a wide variety of topics, including among other things, the validity of the Merger Guidelines issued jointly by the United States Department of Justice, Antitrust Division, and the Federal Trade Commission, the standard applicable to hybrid arrangements, the anticompetitive effects requirement, reverse payment settlements, and exclusionary conduct. Each of these and other significant antitrust decisions are discussed in this chapter of Recent Developments in Business and Corporate Litigation.
§ 2.2. Sherman Act Developments, Section 1
§ 2.2.1. Overview
The Sherman Act, under Section 1, prohibits “every contract, combination, in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1 (2004). The main purpose of the section is to prevent conduct that unreasonably restrains competition. Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 723 (1988). Accordingly, the principal issues often are whether an agreement exists or has been pled adequately, whether a restraint should be examined under the rule of reason or the per se rule, and, if subject to the rule of reason, whether the restraints there are reasonable.
To establish a violation of Section 1, a plaintiff must prove that (1) there is an agreement, (2) the agreement is an unreasonable restraint of trade, and (3) there is an effect on interstate commerce.
To prove an agreement, a plaintiff must also show concerted action. The Supreme Court defined concerted action as a conscious commitment to a common scheme or objective. Monsanto Co. v. Spray-Rite Serv. Co., 465 U.S. 752, 764 (1984). The agreement need not be express, but can be tacit, signified with a wink and nod or handshake, or inferred from circumstantial evidence. Accordingly, plaintiffs may establish concerted action using either direct evidence or indirect evidence.
The Department of Justice, the Federal Trade Commission, state attorneys general, and private plaintiffs may enforce Section 1. Courts routinely examine the issues presented by Section 1 and 2024 was no exception.
§ 2.2.2. United States v. American Airlines Group Inc., 121 F.4th 209 (1st Cir. 2024).
Although an injunction was entered after a bench trial and one of the two airlines involved exited the challenged joint venture, the U.S. Court of Appeals for the First Circuit retained and decided the appeal pursued by the remaining airline. The joint venture at issue dubbed the “Northeast Alliance” (“NEA”) was formed by American Airlines Group, Inc. (“American”) …
