What Is the Question? The Gist of a Sherman Act Claim

• Pages: 25-28
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: Gregory J. Werden

SUMMER 2025 · 25

The author spent 42 years in the Antitrust Division of the U.S. Depart-

ment of Justice.

What Is the Question?

The Gist of a

Sherman Act Claim

BY GREGORY J. WERDEN

BECAUSE SHERMAN ACT DOCTRINE IS

more concepts than rules, every case—even

a straightforward price-fixing case—poses an

analytical question. It is a question about com-

petition framed to identify the determinative

facts and controlling principles. This article advocates greater

emphasis on the threshold issue of any Sherman Act litiga-

tion: What is the question?

The Supreme Court has precisely framed the analytical

questions posed by Sherman Act cases in which the plaintiff

seeks to apply a per se rule, and this article identifies the

Court’s framing of those questions. The Court has been less

precise about the analytical questions posed by other Sher-

man Act cases, and this article proposes framings based on

the Court’s teaching.

The framings proposed here are colored by the author’s

antitrust philosophy,1 and adherents to other philosophies

might frame the questions differently. At a minimum, the

framings proposed here illustrate how to frame the analyt-

ical questions posed by Sherman Act cases, and this article

can prompt productive debate on the proper framings.

There is room for disagreement about the analytical

questions posed by Sherman Act cases because the law is not

entirely clear. The reason is that litigants can disagree about

the analytical questions posed, and yet not argue their cases

in ways that compel courts to decide the proper framings

of those questions. Apart from jurisdiction, courts rarely

address an issue unless asked to do so.

Opposing parties in Sherman Act litigation can argue

from different premises. And those premises can govern

basic issues, such as what constitutes a violation and the

nature and scope of the plaintiff’s initial burden. And yet

both parties can be so confident in the rectitude of their

positions that their essential premises are vaguely articulated

and minimally justified.

This article is a plea to Sherman Act litigants, especially

defendants, for clear statements of, and ample justifications

for, the premises of their arguments. Litigants should engage

on the analytical questions posed and explain the implica-

tions. When litigants present consequential disputes on

these questions, courts likely will resolve them and thereby

promote clarity in the law.

Analytical Questions in Core Per Se Cases

An analytical approach to the Sherman Act emerged in 1918

when the Supreme Court upheld the “Call rule” in Chicago

Board of Trade.2 The rule governed offers to purchase grain

“to arrive,” i.e., in transit to Chicago, tendered after the

exchange closed and set to expire before it reopened. The

Call rule dictated that the offers specify the price that had

been set during a special Call session of the exchange.

The government contended that the rule was unlawful

because competitors agreed on the price offered. Justice

Brandeis’s unanimous opinion held that

the legality of an agreement or regulation cannot be deter-

mined by so simple a test . . . . The true test of legality is

whether the restraint imposed is such as merely regulates

and perhaps thereby promotes competition or whether it

is such as may suppress or even destroy competition. To

determine that question the court must ordinarily consider

the facts peculiar to the business to which the restraint is

applied; its condition before and after the restraint was

imposed; the nature of the restraint and its effect, actual

or probable. The history of the restraint, the evil believed

to exist, the reason for adopting the particular remedy, the

purpose or end sought to be attained, are all relevant facts.3

Justice Brandeis explained that the Call rule was “reason-

able regulation” permitted by the Sherman Act.4 The rule

assured that sellers could trade at a price set in a competitive

public market, whenever they sold their grain. And trading

at the Call price was optional: Grain sold “to arrive” instead

could be traded on the futures market before the harvest, or

on the spot market after arrival in Chicago.

Mid-20th Century Supreme Court Sherman Act deci-

sions steered away from analysis, but the Court reset its

course when it abandoned a rule of per se illegality for non-

price vertical restraints. In Sylvania, the Court declared that

the Sherman Act condemns conduct as unlawful per se only

if it is “manifestly anticompetitive” based on “demonstrable

economic effect rather than . . . formalistic line drawing.”5

The Court stayed the course when it considered the

music copyright collectives ASCAP and BMI and their

practice of granting blanket licenses for their entire reper-

tories. In Broadcast Music, the Court observed that a “blan-

ket license involves ‘price fixing’ in the literal sense,” but

it declared that “[l]iteralness is overly simplistic and often

overbroad.”6

The Court held, “As generally used in the antitrust field,

‘price fixing’ is a shorthand way of describing certain cate-

gories of business behavior to which the per se rule has been

held applicable.”7 In categorizing a practice as “price fixing,”

the question is whether the nature of the practice is