Law

your part only for Defendant ( you must do the work only for Defendant ) read the case and see instruction for more in formation you must do every step in instruction file about the Defendant in this paper !! doing SO, 2 court mktst "take into account a variety of factors, inchAing specific information about the relevant business, its condition before and after the restraint was imposed, and the nestraintts history, nature, and effect' in assessing the anticompetitive effect of an agreement_ The true test of legality tinder the Rule of Reason 'is whether die restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition." * * 'Fihere is often no bright line separating per se from Rule of Reason analysis," for the dispositive question is whether an agreement impermissibly restrains competition. in this regard, the analysis is inevitably fact-intensive . ." 1. Per se illegality Agreements that are subject to a determination of persi, unreasonableness arc those which "facially appear to be °nets} that would always or almost always tend to restrict competition and decrease. output," and which are not "designed to 'increase economic efficiency and render mar-kets more, rather than less competitive.'" Thus, where an agreement has a "pernicious effect on competition and lacks •. any redeeming virtue," per se treatment is appropriate. Examples of restraints held to be per se illegal under Section I include inter alia, price-fixing, group boycotts, tying an-angements, and market-allocation agreeinents among competitors. The common thread uniting these per eviola-tions of Section 1 is that they are all "naked restraints on trade with no purpose except stifling of competition." 'lid!, is precisely the complaint's characterization of the defendalits' agreement to restrict the sin of carry-or hags al Dunes. Specifically, the complaint alleges that defendants' agree-meta is a restraint designed to eliminate competition for air line passengers on the basis of carry on haggarsi The • 470,11-111 snt 1uj-rh l 11,,-teement is a resuairit of tr3de that n neither r(--' _ i_ifie,d by, any iegititnate afety or secilrity Indee,, the complaint also reflects tbat_ thr J;e1LA allows inflividual carriers to adopt carry -on tkaggage policies speolfically tailored to a carrier's e qui pment, Operatinn.al policieS, 2/1(1 competitive strategy:. '11)ese allegations, whiell are asstrtried to be trite at this stage, arC: pisinly sufficient to allege . per se violation of Section 1, Sr Mt is certainly true, as defendants contend, that per se analysis is the exception rather than the rule, and that per se analysis traditionally has been applied only to limited cate-gories of agreements, none of which precisely describes the agreement at issue here. Yet, . the question is not whether the specific restraint here at issue has been judicially labeled a per se violation in the past (it has not), but rather, whether it should now be so labeled. * * Per se treatment is appro-priate . to any agreement restricting competition that has no purpose other than the stifling of competition. [Blecause an agreement to eliminate competition on the size of carry-on baggage has not yet been subjected to judicial scrutiny, "considerable inquiry into market conditions is reeptiredj before the evidence justifies the presumption of anticompetitive conduct"---i.e., per se treatment under Sec-tion 1. " At this stage in the proceedings, for the claim of per se illegality to survive threshold attack, it is sufficient that plaintiffs have alleged a restraint on trade in the form of a horizontal agreement 'among competitors not to compete—here, out the basis of carryon luggage capacity--th4t is arguably analogous to horizontal agreements that have been held to be per se illegal. Of I Are appropriate order has been issued, k*, it