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.

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