While there is general agreement that buyer collusion can be as anticompetitive (and illegal) as seller collusion, the sparse caselaw on buyer cartels leaves many specific doctrinal questions unanswered. However, while buyer cartel cases have been relatively rare, one particular subtype of buyer power has been making consistent antitrust headlines. Employers are “buyers” of their employees’ labor, and cases involving employer wage-fixing and no-poach agreements can shed light on buyer cartel doctrine more generally. In this article, we analyze recent developments in labor antitrust and trace their implications for other buyer power cases, focusing in particular on three doctrinal questions: whether a case falls under the rule of reason or the per se rubric, what kind of competitive harm the plaintiff must show, and how to define the relevant market.
By Sergei Zaslavsky & Laura Kaufmann1
Courts and commentators agree that just as seller cartels are illegal, buyer collusion to fix price or divide markets likewise violates the law.2 But while there is plentiful caselaw on seller cartels and the doctrine is fairly well settled, the caselaw on buyer cartels is relatively sparse. Courts offer general guidance that the same principles apply in cases involving seller power and buyer power,3 but the general guidance leaves many specific questions unanswered.
However, while buyer cartel cases are generally rare, one type of buyer has come under particu...