Summary. Antitrust exposure in distribution is created by ordinary commercial conversations, and the difference between a lawful policy and a felony can be a single sentence in an email. This article covers the divide between horizontal conduct — including the per se offenses carrying criminal penalties — and vertical restraints judged under the rule of reason after Leegin. It then covers resale price maintenance and MAP policies, the Colgate doctrine and its narrow protection, territorial and customer restrictions, exclusive dealing, tying, MFN clauses, Robinson-Patman, information exchange, no-poach enforcement, and compliance program design.

A sporting goods manufacturer has two retailers in the same metropolitan area. One consistently discounts below the other, and the higher-priced retailer complains.

The vice president of sales sends an email: "Thanks for flagging this. I've spoken with them and they've agreed to hold at MSRP going forward. Let me know if you see anything else."

That sentence contains three distinct problems. It documents an agreement on resale price, which is lawful only under a rule of reason analysis nobody has performed. It documents that the agreement was reached in response to a competitor's complaint, which is the fact pattern courts treat with the most suspicion and which can support an inference of a horizontal conspiracy among the retailers with the manufacturer as its hub. And it invites the complaining retailer to keep policing its competitor, which builds the record for exactly that theory.

The commercial objective — protecting a retailer that invests in service from a free rider that does not — is legitimate and achievable. The execution converted it into treble damages exposure and an invitation to a plaintiff's firm.

Antitrust in distribution is not mainly about economics. It is about how the decision is made, who is consulted, and what is written down.

The short answer

Section 1 of the Sherman Act, 15 U.S.C. § 1, prohibits agreements in restraint of trade. Unilateral conduct is not reached by § 1 at all; there must be a contract, combination, or conspiracy.

Two categories:

  • Horizontal — among competitors. Price fixing, bid rigging, market and customer allocation, and no-poach agreements are per se unlawful, criminally prosecuted, and carry treble damages.
  • Vertical — between firms at different levels of distribution. Since Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877 (2007), all vertical restraints including minimum resale price maintenance are judged under the rule of reason.

Section 2, 15 U.S.C. § 2, reaches monopolization and attempted monopolization — a different analysis requiring monopoly power plus exclusionary conduct.

The practical rules:

  1. Never discuss price, output, customers, territories, or employee compensation with a competitor.
  2. Vertical price policies are lawful but must be unilateral in fact or capable of surviving rule of reason analysis.
  3. Assume every email will be read aloud by a plaintiff's lawyer.

Horizontal conduct: the criminal core

Per se offenses are conclusively unlawful without inquiry into reasonableness, market power, or effect:

  • Price fixing — any agreement among competitors affecting price, including agreements on list prices, discounts, credit terms, surcharges, or a formula.
  • Bid rigging — complementary bidding, bid rotation, bid suppression, or subcontracting arrangements to allocate awards.
  • Market allocation — dividing territories, customers, or product lines.
  • Group boycotts in defined circumstances.
  • No-poach and wage-fixing agreements among employers competing for labor, which the Antitrust Division has prosecuted criminally. Trial results have been mixed, but the civil exposure is substantial and the enforcement posture has not softened.

Penalties. Criminal fines for corporations up to $100 million or, under 18 U.S.C. § 3571(d), twice the gross gain or loss — which is usually the larger number. Individuals face up to 10 years' imprisonment and fines up to $1 million. Civil plaintiffs recover treble damages and attorney's fees, 15 U.S.C. § 15, and defendants are jointly and severally liable with no right of contribution, so one defendant can be left holding the entire trebled judgment.

The Leniency Program. The first company to self-report a criminal conspiracy and satisfy the conditions receives amnesty from criminal prosecution for the corporation and its cooperating executives, and under ACPERA its civil exposure is limited to single damages for its own sales, without joint and several liability, conditional on providing satisfactory cooperation to plaintiffs. Leniency is available to exactly one applicant. That structure is designed to make cartels unstable, and it works — which is why an internal discovery of a possible horizontal agreement is an emergency requiring counsel within hours, not weeks.

Proof of agreement. No formal contract is required. An agreement may be inferred from circumstantial evidence, but parallel conduct alone is insufficient — Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), requires factual allegations plausibly suggesting agreement, and Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), requires evidence tending to exclude the possibility of independent action. What supplies that evidence is almost always communication: a meeting, a call, a text, an email, or an intermediary passing information.

Vertical restraints and the rule of reason

Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), moved non-price vertical restraints to the rule of reason. State Oil Co. v. Khan, 522 U.S. 3 (1997), did the same for maximum resale price maintenance. Leegin completed the shift in 2007 for minimum resale price maintenance.

The rule of reason asks whether the restraint's anticompetitive effects outweigh its procompetitive benefits, using a burden-shifting framework confirmed in Ohio v. American Express Co., 585 U.S. 529 (2018): the plaintiff must show a substantial anticompetitive effect; the defendant must then show a procompetitive rationale; and the plaintiff must show the objective could be achieved by less restrictive means, or that the harms outweigh the benefits on balance.

Market power matters. A supplier without market power in a properly defined market rarely loses a rule of reason case. Interbrand competition is the primary check, and Sylvania rested on the recognition that restraints reducing intrabrand competition can increase interbrand competition.

Procompetitive justifications that courts credit: preventing free riding on a retailer's investment in service, demonstration, or training; inducing retailers to invest in promotion; facilitating entry by a new brand; maintaining quality and brand positioning; and ensuring adequate service and warranty support.

The state law problem. Leegin changed federal law only. Several states — Maryland most prominently, by statute — treat minimum RPM as per se unlawful under state antitrust law, and California's Cartwright Act has been read to retain a per se approach. State attorneys general have pursued RPM cases post-Leegin. A national program lawful under federal law may be unlawful in specific states, and the analysis must be done state by state for any program with meaningful risk.

Resale price maintenance, MAP policies, and Colgate

Minimum resale price maintenance is an agreement that a reseller will not sell below a specified price. After Leegin it is judged under the rule of reason federally, but it remains the highest-risk vertical restraint because of state law, because of the treble damages exposure, and because the fact patterns that generate RPM claims frequently also suggest a horizontal conspiracy.

Minimum advertised price (MAP) policies restrict the price at which a product may be advertised, not the price at which it may be sold. Because the restriction is on advertising rather than resale price, MAP policies have generally been analyzed more favorably — but a MAP policy that functions as price maintenance, or that is agreed to rather than imposed, does not benefit from the label.

Designing a defensible MAP policy:

  • Restrict advertised price only; state expressly that the reseller may sell at any price it chooses.
  • Address the treatment of in-cart pricing and "click for price" mechanisms explicitly, because that is where MAP policies most often blur into resale price control.
  • Apply it uniformly to all resellers, with no exceptions and no negotiated variations.
  • Communicate it as a policy, not an agreement, and do not seek or accept assent.
  • Define consequences in advance — typically suspension or termination of supply — and apply them consistently.
  • Do not discuss the policy with resellers beyond announcing it, and do not negotiate its terms.
  • Never solicit or act on competitor complaints about another reseller's pricing.

The Colgate doctrine. United States v. Colgate & Co., 250 U.S. 300 (1919), holds that a manufacturer, absent a purpose to create a monopoly, may announce in advance the terms on which it will deal and refuse to deal with those who do not comply. Because § 1 requires an agreement, a genuinely unilateral announcement and refusal is not an agreement at all.

Colgate is narrow, and it is easy to lose. Later cases make clear that a manufacturer forfeits the protection when it goes beyond announcement and refusal:

What forfeits Colgate protection, in practice:

  • Asking a reseller to confirm it will comply, or accepting such a confirmation.
  • Negotiating exceptions or reinstatement conditions.
  • Using distributors or other retailers to monitor and report violations as part of an enforcement scheme.
  • Reinstating a terminated reseller after it promises to comply — this is the single most common way companies convert a policy into an agreement.
  • Coordinated warnings and second chances that amount to a course of dealing.

The operating discipline that preserves the doctrine is uncomfortable for sales teams: announce, monitor independently, terminate without discussion, and do not reinstate on a promise. Companies that cannot live with that should assume they have an agreement and structure the program to survive rule of reason review instead.

Territorial and customer restrictions

Vertical territorial and customer restrictions are judged under the rule of reason, and most are lawful for a supplier without market power.

Common structures:

  • Exclusive territories — one distributor per area, with the supplier agreeing not to appoint others.
  • Areas of primary responsibility — the distributor must focus on a defined area but may sell elsewhere.
  • Location clauses — the reseller may sell only from approved locations.
  • Profit pass-over — a distributor selling into another's territory compensates that distributor for its promotional investment.
  • Customer restrictions — reserving national accounts, government, or specified customers to the supplier.
  • Dual distribution — the supplier sells directly while also selling through distributors, which introduces a horizontal element requiring more care because the supplier and its distributors compete.

The internet. Restricting online sales entirely is riskier than restricting the manner of online sales. Requirements addressing quality of presentation, authorized platform lists, authentication, customer service standards, and prohibitions on unauthorized marketplace listings are generally analyzed as quality controls rather than price restraints. Selective distribution systems built on objective qualitative criteria, applied uniformly, are the standard approach.

Horizontal allocation dressed as vertical. If distributors agree among themselves to respect territories, that is a horizontal market allocation and per se unlawful, regardless of the supplier's involvement. A supplier that convenes distributors to discuss territorial boundaries has created a hub-and-spoke structure with an obvious problem. Territorial assignments must be made by the supplier, unilaterally, and communicated bilaterally.

Exclusive dealing, tying, and MFNs

Exclusive dealing — requiring a buyer to purchase all or substantially all of its requirements from one supplier. Analyzed under the rule of reason and under Clayton Act § 3, 15 U.S.C. § 14, for goods. The central questions are the share of the market foreclosed, the duration of the arrangement, and the availability of alternative channels. Short terms, termination rights, and modest market shares make these agreements comfortable; long terms held by a dominant supplier do not. Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 (1961), remains the framework.

Tying — conditioning the sale of one product on the purchase of another. Formerly per se unlawful, tying now requires proof of market power in the tying product, and Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006), eliminated the presumption that a patent confers market power. Bundled discounts and loyalty rebates are analyzed under evolving standards that consider whether an equally efficient competitor could match the effective price.

Most favored nation clauses — a supplier's promise that the buyer will receive terms at least as good as any other buyer. Common and often lawful, but they can dampen discounting and, where the buyer has market power or where many suppliers grant them, can facilitate coordination. Antitrust agencies have challenged MFNs held by dominant platforms. Practical mitigations: limit the clause's scope and duration, exclude promotional and one-off pricing, avoid audit rights that require disclosure of competitors' terms, and reconsider MFNs entirely where either party has a large share.

Refusals to deal under § 2. A firm with monopoly power generally has no duty to deal with rivals. Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), sharply limited the exception recognized in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), to the narrow case where a monopolist terminates a voluntary and profitable course of dealing, suggesting a willingness to sacrifice short-term profits for an anticompetitive end.

The Robinson-Patman Act

The Robinson-Patman Act, 15 U.S.C. § 13, prohibits price discrimination between competing purchasers of commodities of like grade and quality where the effect may be substantially to lessen competition. It was largely dormant for decades and has recently returned to enforcement attention, which makes it worth understanding again.

Elements of a secondary-line claim: two or more completed sales, reasonably contemporaneous, of commodities (not services or intangibles), of like grade and quality, at different prices, to competing purchasers, in interstate commerce, with a competitive injury. Section 2(d) and 2(e) separately require that promotional allowances and services be made available to competing customers on proportionally equal terms — and unlike § 2(a), those provisions have no competitive injury requirement, which makes them the easier claims to prove.

Defenses:

  • Cost justification — the differential reflects actual differences in the cost of manufacture, sale, or delivery. Rigorous, expensive, and rarely used.
  • Meeting competition — the lower price was made in good faith to meet an equally low price of a competitor. This is the practical defense, and it requires a contemporaneous, documented, reasonable basis for believing the competing offer existed. Verify and document at the time; a reconstructed justification is worth little.
  • Changing conditions — obsolescence, deterioration, distress sales.
  • Functional discounts — differentials reflecting genuinely different functions performed by the buyer, such as warehousing and redistribution, are generally permissible where reasonably related to the buyer's costs.

Practical compliance: maintain a rational, documented price list with defined discount tiers based on volume, function, or service level; apply the tiers consistently; document meeting-competition decisions when they are made; and offer promotional allowances to all competing customers on proportionally equal terms with a written program.

Information exchange and trade associations

Trade associations serve legitimate purposes and are also where cartels are formed. The Sherman Act does not prohibit membership; it prohibits what sometimes happens in the parking lot afterward.

Information exchange among competitors is not per se unlawful, but it can support an inference of agreement or independently restrain trade. The safer structure has historically been: data aggregated by a neutral third party, from a sufficient number of participants that no individual firm's data is identifiable, historical rather than current or forward-looking, and anonymized — with the resulting statistics available broadly. Note that the antitrust agencies have withdrawn earlier healthcare-specific safe harbor guidance and have signaled a more skeptical view of information exchange generally, including exchanges mediated by algorithms and pricing software, where several enforcement actions and private suits now allege that a common algorithm ingesting competitors' nonpublic data is a modern form of hub-and-spoke agreement.

Rules for association participation:

  • A written antitrust policy and an agenda circulated in advance.
  • Counsel present at meetings where competitively sensitive subjects could arise.
  • Minutes taken and retained.
  • Never discuss current or future prices, discounts, credit terms, costs, capacity, output, bids, customers, territories, or wages.
  • Leave the room audibly and visibly, and follow up in writing, if such a discussion begins. Presence without objection is evidence of participation.
  • Benchmarking surveys conducted only through a third party with proper aggregation.
  • Standard-setting activity conducted under written procedures addressing IP disclosure and licensing commitments.

No-poach and wage information. Agreements among employers not to solicit or hire each other's employees, and agreements on wages or benefits, are treated as horizontal market allocation and price fixing in the labor market. Exchanging compensation data with competitors carries the same risk as exchanging price data. In an M&A context, a no-solicitation clause in an NDA is generally acceptable if reasonably limited in scope and duration and ancillary to a legitimate transaction; a standalone agreement between competitors is not.

A compliance program that works

The elements the agencies look for when evaluating whether a compliance program is genuine, and which also happen to prevent violations:

Design.

  • A written policy in plain language, distributed to everyone in sales, marketing, procurement, and executive roles.
  • Risk assessment identifying where the company touches competitors: trade associations, industry conferences, joint ventures, dual distribution, benchmarking, and hiring from rivals.
  • A clear escalation path to counsel, with a stated expectation that close questions come before the conversation, not after.

Training that is role-specific and concrete. Sales teams need scripts for what to do when a competitor raises price at a conference. Procurement needs to know that a supplier's assurance about "what everyone charges" may be an invitation. Executives need to understand personal criminal exposure.

The document rules, which do most of the work:

  • Do not write "market share," "dominate," "crush," or "drive them out."
  • Do not speculate in writing about competitors' pricing intentions or refer to "understandings" with them.
  • Do not memorialize competitor complaints about a reseller's price, and never respond to one in writing beyond acknowledging receipt.
  • Do not describe a policy as something a reseller "agreed to."
  • Assume every document, including chat messages and text messages on personal devices, is discoverable.

Monitoring and auditing. Periodic review of pricing communications, distributor terminations, and association participation, conducted under privilege.

Response. A written protocol for a dawn raid or a grand jury subpoena: who is called first, who escorts agents, what is produced, employees' right to counsel, and an immediate document hold. And a rule that any credible indication of a horizontal agreement goes to counsel immediately, because leniency is available to exactly one applicant and the value of being first is measured in years of imprisonment.

A worked example

Halloway Instruments sells laboratory equipment through 40 independent dealers and directly to national accounts.

The problem. Two dealers are discounting aggressively online. Others complain that they invest in demonstration equipment and trained staff, then lose sales to a website that does neither.

What Halloway did wrong initially. The regional manager called the discounters, told them "the other dealers are unhappy," and asked them to raise prices. One agreed by email. The manager forwarded the email to the complaining dealers to reassure them.

That sequence created: a vertical price agreement; a written record of a competitor complaint as the motive; and a communication linking the complaining dealers to the outcome, which is the evidentiary core of a hub-and-spoke horizontal claim.

What counsel implemented instead.

  1. Terminated the existing approach. No further discussion of resale prices with any dealer. A written instruction to sales staff, with training.
  2. Adopted a unilateral MAP policy, restricting advertised price only, stating expressly that dealers may sell at any price, applied uniformly, with defined consequences and no exceptions, communicated by a single announcement letter.
  3. Built independent monitoring through a third-party service, so enforcement does not depend on dealer reports. Complaints received from dealers are logged and not acted upon; enforcement is triggered only by the monitoring service.
  4. Adopted a selective distribution program with objective qualitative criteria: demonstration inventory, trained technical staff, a service capability, and a customer support standard. Dealers meeting the criteria receive authorized status; the criteria are applied uniformly and are documented.
  5. Assigned areas of primary responsibility rather than exclusive territories, communicated bilaterally, with no dealer meetings on the subject.
  6. Reserved national accounts to direct sale, with a documented rationale and a compensation mechanism for dealers who identify opportunities.
  7. Adopted a written discount schedule with volume and functional tiers, applied consistently, to address Robinson-Patman exposure, plus a promotional allowance program available to all competing dealers on proportionally equal terms.
  8. Trained the sales force on document discipline and on what to do at industry conferences.

Outcome. The free-riding problem is addressed through service criteria and advertising restrictions rather than price agreement. The complaining dealers get a policy rather than a promise. And the file contains a documented, uniform program instead of an email trail.

Frequently asked questions

Can we set the price our dealers charge? Federally, minimum RPM is judged under the rule of reason after Leegin, so it is not automatically unlawful — but several states treat it as per se unlawful, and the exposure is treble damages. A MAP policy plus service criteria is the lower-risk route to the same commercial objective.

Can we stop selling to a discounter? Under Colgate, yes — if the decision is genuinely unilateral: announce terms, refuse to deal, and do not negotiate, seek assurances, or reinstate on a promise.

A dealer complained about a competitor's pricing. What do we do? Acknowledge receipt and nothing more. Do not investigate at the complainant's request, do not report back, and do not act on the complaint. Enforce only through independent monitoring under a pre-existing uniform policy.

Can we give exclusive territories? Generally yes, under the rule of reason, for a supplier without market power. Assign them unilaterally and bilaterally; never convene distributors to agree among themselves.

Can we restrict online sales? Restricting the manner of online sales — presentation quality, authorized platforms, authentication, service standards — is generally safer than prohibiting them. Apply criteria uniformly and objectively.

Is it illegal to charge different customers different prices? Not inherently. Robinson-Patman requires competing purchasers, commodities of like grade and quality, and competitive injury, and there are cost justification, meeting competition, and functional discount defenses. Document the basis at the time.

We are hiring from a competitor. Any issue? Hiring is fine. Agreeing with the competitor not to solicit each other's employees is a per se horizontal restraint that has been prosecuted criminally.

A competitor mentioned pricing at a conference. What now? Leave the conversation audibly, document what happened, and tell counsel the same day. Silence looks like participation.

Conclusion

Nearly every antitrust problem in distribution starts as a legitimate commercial concern: free riding, brand erosion, channel conflict, or a dealer that will not invest. Each of those has a lawful solution, and the lawful solutions are usually more durable than the unlawful ones, because a uniform policy applied consistently survives personnel changes and the shortcut does not.

What converts the legitimate concern into exposure is process: consulting the complaining dealer, seeking agreement rather than announcing a policy, reinstating on a promise, and writing it all down.

The compliance rule that prevents the most damage is not a legal standard at all. It is that pricing decisions are made unilaterally, communicated bilaterally, documented as policy, and never negotiated with the people who complained.

Who enforces, and what private litigation looks like

Four sets of actors can bring an antitrust case, and the exposure compounds because they frequently arrive in sequence.

The Antitrust Division of the Department of Justice has exclusive criminal authority. It investigates by grand jury subpoena and, in appropriate cases, by search warrant. Its civil authority covers mergers and civil non-criminal conduct.

The Federal Trade Commission enforces § 5 of the FTC Act, 15 U.S.C. § 45, which reaches conduct violating the Sherman and Clayton Acts and, on the Commission's view, some conduct beyond them as an unfair method of competition. It proceeds administratively and in federal court, and it shares merger review with the Division.

State attorneys general enforce federal antitrust law as parens patriae on behalf of natural persons under 15 U.S.C. § 15c, and enforce their own state statutes — which in several states reach conduct federal law does not, including per se treatment of resale price maintenance. Multistate investigations coordinated through the National Association of Attorneys General are common.

Private plaintiffs recover treble damages, costs, and attorney's fees under § 4 of the Clayton Act. Two doctrines shape who may sue. Under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), only direct purchasers may recover damages under federal law — but roughly half the states have enacted Illinois Brick repealer statutes permitting indirect purchaser recovery under state law, which is why nearly every significant antitrust case is litigated as parallel direct and indirect purchaser classes. Apple Inc. v. Pepper, 587 U.S. 273 (2019), held that consumers purchasing apps from Apple's store were direct purchasers of Apple, illustrating that the "direct" question turns on the transactional relationship rather than on economic incidence.

Antitrust injury, required under Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477 (1977), means injury of the type the antitrust laws were intended to prevent, flowing from that which makes the conduct unlawful. A competitor harmed because a rival became more efficient has no claim; a competitor foreclosed from the market by an exclusionary agreement may.

The follow-on pattern. A government investigation becomes public. Private class actions follow within days, on both the direct and indirect tracks. State attorneys general open parallel investigations. Cases are consolidated by the Judicial Panel on Multidistrict Litigation. Because criminal defendants who plead guilty establish the violation, the follow-on civil litigation frequently proceeds directly to damages, where joint and several liability without contribution means the last defendant standing can owe the entire trebled amount.

Limitations. Four years from accrual under 15 U.S.C. § 15b, subject to the continuing violation doctrine, fraudulent concealment tolling, and government action tolling under § 16(i), which suspends the private limitations period during a government proceeding and for one year after — a provision that can revive claims a defendant assumed were time-barred.

Joint ventures, ancillary restraints, and the middle ground

Not every agreement among competitors is a cartel. Firms collaborate on research, standards, purchasing, and production, and the law accommodates it — through the ancillary restraints doctrine.

A restraint is ancillary, and therefore judged under the rule of reason rather than condemned per se, if it is subordinate and collateral to a separate, legitimate, integrative transaction and reasonably necessary to achieve its procompetitive purpose. A naked restraint — one that exists for no purpose but to restrict competition — gets no such treatment.

Where this matters:

  • Research and production joint ventures. Texaco Inc. v. Dagher, 547 U.S. 1 (2006), held that a joint venture's pricing of its own products is not price fixing at all, because the venture is a single economic entity as to that decision. The National Cooperative Research and Production Act, 15 U.S.C. §§ 4301-4306, provides rule of reason treatment and, for notified ventures, limits damages to single rather than treble.
  • Sports and league arrangements. American Needle, Inc. v. NFL, 560 U.S. 183 (2010), held that the teams' collective licensing decision was concerted action subject to § 1 despite the league structure, and NCAA v. Alston, 594 U.S. 69 (2021), applied full rule of reason scrutiny to compensation restraints.
  • M&A covenants. A non-compete given by a seller to a buyer is ancillary and lawful if reasonable in scope, geography, and duration. The same covenant between competitors with no transaction is a market allocation.
  • Employee non-solicitation in a transaction. Reasonable and time-limited restrictions in an NDA or purchase agreement are ancillary. A standing agreement between competitors is not.
  • Group purchasing organizations. Joint purchasing is generally lawful and often procompetitive, subject to concerns where the buying group's share of the input market is large enough to depress prices below competitive levels or where it becomes a vehicle for exchanging cost information.
  • Standard setting. Legitimate and procompetitive, with the risks concentrated in patent disclosure and licensing commitments and in the exclusion of rivals from a standard for anticompetitive reasons.

The drafting discipline. For any collaboration among competitors, document three things contemporaneously: the legitimate integrative purpose, why each restraint is reasonably necessary to achieve it, and why a less restrictive alternative would not work. Limit each restraint in scope and duration to what the purpose requires. And firewall competitively sensitive information so that participants receive only what the collaboration actually needs — a clean team, a third-party administrator, or aggregation, depending on the sensitivity.

That memorandum, written before the venture launches, is the difference between an ancillary restraint and a naked one.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. State antitrust laws differ from federal law, notably on resale price maintenance, and enforcement priorities change. Consult qualified antitrust counsel before adopting a pricing policy, terminating a reseller, or participating in a competitor information exchange.