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“Per Se Rule” and the “Rule of Reason:”
Price fixing, bid rigging and market allocation are among the group of antitrust offenses that are considered “per se” unreasonable restraints of trade.
The courts have reasoned that these practices, which invariably have the effect of raising prices to consumers, have no legitimate justification and lack any redeeming competitive purpose and should, therefore, be considered unlawful without any further analysis of their reasonableness, economic justification, or other factors.
For most other antitrust offenses, the courts have established an analytical approach labeled the “rule of reason.”
Under the “rule of reason,” the courts must undertake an extensive evidentiary study of (1) whether the practice in question in fact is likely to have a significant anticompetitive effect in a relevant market and (2) whether there are any procompetitive justifications relating to the restraint. Under the “rule of reason,” if any anticompetitive harm would be outweighed by the practice’s procompetitive effects, the practice is not unlawful.
Virtually all antitrust offenses likely to be prosecuted by a United States Attorney’s office will be governed by the “per se” rule.
Source: Department of Justice Antitrust Resource Manual
