Leegin as wrecking ball?
Since the Supreme Court struck down an almost century-old rule of per se antitrust liability in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877 (2007),* defense lawyers have tried to turn a single sentence from Leegin into a per-se category killer.
The effort presents high stakes, principally because per se cases have several advantages over their rule-of-reason cousins. The former are simpler, cost millions of dollars less to work up and try, and have greater odds of success with a judge or jury. The per se rule:
- does not require an economist to opine about the relevant product and geographic markets;
- obviates the need to prove that the defendants had market (or monopoly) power or that their conduct was anticompetitive;
- simplifies proof of damages; and
- precludes defendants from claiming, and presenting evidence, that their agreement enhanced competition.
You would expect a kindly hearing from the Fifth Circuit — a court that, despite President Obama’s six years of judicial appointments, still counts twice as many Republican (10) as Democratic (5) appointees in active service. But would the court drink the Kool-Aid?
The court answered on November 25. The panel gave a resounding no.