Per se treatment applies to horizontal price fixing, bid rigging, market allocation, and certain group boycotts. The category has narrowed as courts require experience with a restraint before condemning it categorically.
Novel restraints receive rule of reason analysis.
Alternative Names:
Per Se Illegality|Per Se Rule
Why it Matters?
The category has narrowed substantially, since courts require judicial experience demonstrating that a restraint always or almost always restricts competition before applying per se condemnation, which means novel arrangements receive rule of reason analysis even where they resemble condemned categories. Arguing that a restraint is novel or ancillary to a legitimate collaboration moves it out of per se treatment and restores the justification defense.
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Related terms
Frequently asked questions
Why has the category narrowed?
How is per se treatment avoided?
