Per Se Rules and Price Fixing

1
Per Se Rules and Price Fixing

• Bright line test saves courts time doesnt
  reinvent the wheel ignores industry structure
  and expert testimony no redeeming
  pro-competitive qualities
• Appalachian Coals
• Common sales agent and prorated revenues
• Socony Vacuums dancing partners
• Price stabilization and floors
• Footnote 59 perniciousness and threat to
  central nervous system of the economy

2
Horizontally-set Maximum Price

• Per se in Kiefer-Stewart but hard to understand
  the harm
• Rule of Reason would be superior

3
Trade Associations

• Safety standards, architectural interoperability,
  global mkt competitiveness
• but standarization when commodity inputs can mask
  price stabilization
• Capacity and output info can facilitate
  cartelization cts use Rule of Reason
• historic v. current capacity/sales info
• Reqt to adhere to price data? Data widely
  available? Industry/assn concentrated?

4
Pricing Confirmation

• Bilateral exchange of latest transactions
  Container Defs had 90 of shipped product
• Majority wrong on per se (Citizens Bank)
• In U.S.Gypsum (4-3-2) no reqt to adhere, but
  CR890 Ct said no per se for criminal
  prosecution where intent is for jury
• knowledge that proscribed effects would most
  likely follow and they did
• exchange could be predicate for price fixing