August 2, 2016

August 2, 2016 | Commentary on Rule of Law

Is Mere Allegiance to a Business Association's Rules Enough to Plead a Sherman Act Conspiracy?

On June 28, 2016, in Visa Inc. v. Osborn, the U.S. Supreme Court agreed to review a 2015 decision by the U.S. Court of Appeals for the D.C. Circuit that held that members of a business association could potentially be subject to antitrust liability under Section 1 of the Sherman Act (Section 1), merely based on their participation in the governance of the association and their agreements to adhere to its rules. The Court’s decision will resolve a circuit split between the D.C. Circuit and the Third, Fourth, and Ninth Circuits, all three of which have held that such an allegation by itself would be insufficient to plead a Section 1 conspiracy. The Supreme Court’s decision hopefully will eliminate a substantial source of uncertainty regarding the ability of thousands of associations to adopt efficient generally applicable membership rules, free from the threat of costly antitrust liability.

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About the Author

Alden Abbott Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and the John, Barbara, and Victoria Rumpel Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Related Issues: Rule of Law

This piece was published by Competition Policy International.