THE PER SE RULE AGAINST HARD-CORE ANTITRUST VIOLATIONS: ETCHED IN STONE OR ENDANGERED SPECIES?

Last year, the District Court for the District of Utah held that the rule of reason governed a criminal antitrust prosecution by the Department of Justice, filed against a company that allocated customers with a competitor. This trial level ruling is on appeal to the Tenth Circuit. The Court of Appeals’ decision could significantly affect both criminal and civil antitrust actions. This article addresses the pending case and appeal, and also discusses other recent DOJ enforcement actions, which the DOJ has filed as civil, rather than criminal, Sherman Act violations. The article further addresses whether these recent DOJ cases may be diluting the message that per se treatment has, traditionally, conveyed.