How Per Se Rule Will Die In Criminal Antitrust Cases

Law360 (March 20, 2019, 5:33 PM EDT) -- The per se rule for horizontal price-fixing and bid-rigging has been entrenched in U.S. Supreme Court jurisprudence since at least United States v. Socony-Vacuum Oil Co in 1940.[1] That may change in the near future.

Challenges in lower courts to the per se rule have become more frequent. While these challenges have been repelled by Supreme Court precedent, the current Supreme Court may be receptive to revisiting the per se rule.

Justices Sonia Sotomayor and Neil Gorsuch, while representing so-called different wings of the Supreme Court, have taken an interest in cases where the defendant claims he has been denied the...

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