The Rule of Reason: From Balancing to Burden Shifting, as appeared in ABA Antitrust Law

Daniel Fundakowski, an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office, wrote an article titled, "The Rule of Reason: From Balancing to Burden Shifting." (Download the PDF.)

Following is an excerpt:

Though antitrust lawyers tend to associate the Sherman Act's Rule of Reason analysis with balancing procompetitive benefits against anticompetitive effects, the reality is that over 95% of Rule of Reason cases are decided without any such balancing test. In surveying the nearly 300 Rule of Reason cases decided by federal courts in the past 15 years, a clear pattern emerges—Rule of Reason cases are often decided by following a burden shifting framework, with less than 5% conducting any type of balancing. This article explores the phenomenon and includes an illuminating question-and-answer section by Thomas (Tim) Greaney, a former DOJ Antitrust Division Assistant Chief and antitrust professor at Saint Louis University School of Law.