AAI filed an amicus brief urging the Ninth Circuit to reverse its decision
holding that vertical restraints are only actionable when they exclude
competitors from the market or support a horizontal cartel. AAI's brief
argued that the Court ignored the law and economics providing that vertical
restraints may have have collusive anticompetitive effects without a
horizontal agreement and that tying agreements may be unlawful without
significantly foreclosing rivals.
This is the second Ninth Circuit Panel decision in this case; the first was
withdrawn after a petition for rehearing was filed, which AAI supported with
an amicus brief. The new opinion addresses some of the concerns raised by
AAI, but still considerably constricts the application of the antitrust laws
to vertical agreements.
The brief was written by AAI Director of Legal Advocacy Rick Brunell and AAI
Director of Special Projects Randy Stutz.