A. [§ 11.2] Restraint of Trade

JurisdictionMaryland

A. [§ 11.2] Restraint of Trade

Section 11-204(a)(1) of the Maryland Antitrust Act is essentially the same as § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1997). Crete Carrier Corp. v. Sullivan & Sons, Inc., No. CV ELH-21-328, 2022 WL 657565, at *7 (D. Md. Mar. 4, 2022) (quoting Krause Marine Towing Corp. v. Ass'n of Md. Pilots, 205 Md. App. 194, 209, 44 A.3d 1043, 1053 (2012)). Accordingly, Maryland courts are influenced by federal court decisions that interpret § 1 of the Sherman Antitrust Act. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (considering pleading requirements in actions under § 1 of the Sherman Antitrust Act and noting in footnote 3 that a pleading must contain "a 'showing,' rather than a blanket assertion, of entitlement to relief," and must contain "enough facts to state a claim to relief that is plausible on its face," even if facts need not be set out in detail); Quality Disc. Tires, Inc. v. Firestone Tire & Rubber Co., 282 Md. 7, 382 A.2d 867 (1978), overruled in part on other grounds by Natural Design, Inc. v. Rouse Co., 302 Md. 47, 485 A.2d 663 (1984); see also havePower LLC v. Gen. Elec. Co., 183 F. Supp. 2d 779 (D. Md. 2002); Montgomery Cty. Ass'n of Realtors, Inc. v. Realty Photo Master Corp., 878 F. Supp. 804 (D. Md. 1995), aff'd, 91 F.3d 132 (4th Cir. 1996).

The Maryland Antitrust Act forbids "unreasonable" restraint of trade. Com. Law II § 11-204(a)(1). The Sherman Antitrust Act also has been judicially construed as only precluding contracts and combinations that "unreasonably" restrain competition. See Standard Oil Co. v. United States, 221 U.S. 1 (1911); Valuepest. com of Charlotte, Inc. v. Bayer Corp., 561 F.3d 282, 286 (4th Cir. 2009); Dickson v. Microsoft Corp., 309 F.3d 193, 218 (4th Cir. 2002); Cont'l Airlines, Inc. v. United Airlines, Inc., 277 F.3d 499, 508 (4th Cir. 2002); In re Am. Honda Motor Co., Dealerships Relations Litig., 941 F. Supp. 528, 561 (D. Md. 1996).

However, there are "certain agreements or practices which because of their pernicious effect on competition . . . are conclusively presumed to be unreasonable and therefore illegal. . . ." N. Pac. Ry. v. United States, 356 U.S. 1, 5 (1958); see also TFWS, Inc. v. Schaefer, 242 F.3d 198, 208 (4th Cir. 2001); In re Am. Honda, 941 F. Supp. at 562. Such agreements are deemed to be "per se" violations of the law. TFWS, 242 F.3d at 208; In re Am. Honda, 941 F. Supp. at 561-62. Restraints that have been held to be per se illegal include price-fixing, group boycotts, and market-allocation agreements among competitors. Berlyn, Inc. v. Gazette Newspapers, Inc., 223 F. Supp. 2d 718 (D. Md. 2002) (noting "[t]he only way for the plaintiffs to prevail on the issue of unreasonable restraint . . . would be if the complained of conduct triggered 'per se' analysis" and concluding "[t]here is no per se unreasonable conduct here"), aff'd, 73 F. App'x 576 (4th Cir. 2003) (unpublished).

Consequently, a plaintiff must show that the challenged business practice is either unreasonable or a per se violation of the...

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