Antitrust and Unfair Competition Law

Competition: FALL 2022, Vol 32, No. 2

THE OTHER "QUICK LOOK"

Written by Ashish Sudhakaran and Tyler Helms1

I. INTRODUCTION

The Supreme Court’s recent decision in NCAA v. Alston2 will likely have a significant impact on how courts assess restraints of trade challenged under Section 1 of the Sherman Act. Most will focus on Alston’s description of the proper framework for a "rule-of-reason" analysis in antitrust jurisprudence. But less obvious in the Court’s decision is its approval once and for all of an abbreviated "quick-look" analysis—previously used to presumptively condemn facially anticompetitive restraints—to summarily approve restraints that are facially procompetitive. The NCAA ultimately failed to convince the Court that its conduct should benefit from a "quick-look" stamp of approval, but the Court agreed with the NCAA in principle: a "positive"3 quick look can be used to summarily approve certain restraints of trade under Section 1 when the potential for anticompetitive harm is minimal.

While it remains to be seen just how prevalent the "positive" quick-look approach will be, Alston has three key implications for antitrust litigation. First, Alston suggests that the fact-intensive rule-of-reason analysis is no longer the most deferential standard of scrutiny that may be applied to restraints challenged under Section 1. Rather, Alston suggests that courts might now require plaintiffs to make a threshold showing that a challenged restraint has sufficient anticompetitive effects to even warrant a closer look under the rule of reason. Second, unless plaintiffs can make such a showing, courts may be more likely to entertain and grant early dispositive motions dismissing antitrust cases at the pleading stage. Third, even failing early motions to dismiss, a "positive" quick look militates in favor of courts using certain tools already at their disposal—such as early summary judgment motions and sequenced discovery—to narrow the scope of potentially expensive and protracted antitrust litigation. Accordingly, Alston’s pronouncement arguably represents a victory for antitrust defendants, and a caution to plaintiffs and judges against "mistaken condemnations of legitimate business arrangements"4 that are often costly and contrary to the purpose of antitrust law.

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