Horizontal Price Fixing—a Per Se Sherman Antitrust Violation, Except When It Doesn't Restrain Trade

Price fixing between horizontal competitors is a per se violation of Section One of the Sherman Antitrust Act

Section One of the Sherman Antitrust Act declares that "[e]very contract . . . or conspiracy, in restraint of trade or commerce among the several States . . . is . . . illegal." The text of Section One requires an illegal act to include:

(1) an agreement between more than one party;

(2) the agreement must restrain trade or commerce; and

(3) the trade or commerce being restrained must be between the States (or with a Foreign Nation), and, thus, within the purvey of the Commerce Clause powers of Congress.

The first and third requirements are clear from the text of the statute; however, what qualifies as a restraint of trade needs some elucidation from the courts.