Duhaime's Law Dictionary

Per Se Doctrine Definition:

A rule of antitrust law: that interference with the setting of prices by free market forces is unlawful per se, prima facie.

Related Terms: Horizontal Agreement, Per Se

Also known as the per se rule.

A rule or doctrine applied in antitrust cases to the analysis of suspect market conduct, where the courts assume adverse economic effects of certain anticompetitive activity; anticompetitive per se or intrinsically unreasonable; prima facie violations of the antitrust statute.

In Yarn Processing Patent Validity Litigation, Justice Nicols of the United States Court of Appeals wrote:

"(F)or the purposes of determining the existence of a per se antitrust violation, market analysis and questions of evil or laudatory motive are irrelevant. The per se violations alleged on these facts are price and royalty fixing, illegal customer restrictions, and profit sharing."

In Antitrust Basics, Thomas Vakerics wrote:

"The per se rule involves a imited analysis of whether certain conduct occurred and, if s, whether the type of conduct in question falls within the category of conduct that has been condemned under the antitrust laws as per se illegal.

"If the conduct ... is subject to the per se rule, it is presumed to be illegal without elaborate inquiry as to the precise harm it may have caused or the business excuse for its use."

In his 1980 book, Philip Marcus wrote:

"Price fixing, boycotts or collective refusals to deal, foreclosure of competitors from any substantial market, allocation of customers or territories among competitors, and tie-in restrictions have been characterized as per se offenses....

"Not al exclusionary group action is or should be illegal and the enforcement of self-regulation where the anticompetitive effect is slight and the benefits appealing are not likely to be stricken as per se illegal."


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