Sherman Antitrust Act

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“The meaning of the term ‘contract, combination … or conspiracy’ is informed by the ‘ “basic distinction” ’ in the Sherman Act ‘ “between concerted and independent action” ’ that distinguishes § 1 of the Sherman Act from § 2. Copperweld, 467 U.S., at 767, 104 S.Ct. 2731 (quoting Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 761, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)). Section 1 applies only to concerted action that restrains trade. Section 2, by contrast, covers both concerted and independent action, but only if that action ‘monopolize[s],’ 15 U.S.C. § 2, or ‘threatens actual monopolization,’ Copperweld, 467 U.S., at 767, 104 S.Ct. 2731, a category that is narrower than restraint of trade. Monopoly power may be equally harmful whether it is the product of joint action or individual action.

“Congress used this distinction between concerted and independent action to deter anticompetitive conduct and compensate its victims, without chilling vigorous competition through ordinary business operations. The distinction also avoids judicial scrutiny of routine, internal business decisions.

“Thus, in § 1 Congress ‘treated concerted behavior more strictly than unilateral behavior.’ Id., at 768, 104 S.Ct. 2731. This is so because unlike independent action, ‘[c]oncerted activity inherently is fraught with anticompetitive risk’ insofar as it ‘deprives the marketplace of independent centers of decisionmaking that competition assumes and demands.’ Id., at 768-769, 104 S.Ct. 2731. And because concerted action is discrete and distinct, a limit on such activity leaves untouched a vast amount of business conduct. As a result, there is less risk of deterring a firm’s necessary conduct, courts need only examine discrete agreements; and such conduct may be remedied simply through prohibition. See Areeda & Hovenkamp ¶ 1464c, at 206. Concerted activity is thus ‘judged more sternly than unilateral activity under § 2,’ Copperweld, 467 U.S., at 768, 104 S.Ct. 2731. For these reasons, § 1 prohibits any concerted action ‘in restraint of trade or commerce,’ even if the action does not ‘threate[n] monopolization,’ Ibid. And therefore, an arrangement must embody concerted action in order to be a ‘contract, combination … or conspiracy’ under § 1.”

J. Stevens, American Needle, Inc. v. National Football League, 130 S.Ct. 2201, 2208-2209 (2010).