Is the Quick-Look Antitrust Analysis in Polygram Holding Inherently Suspect‪?‬

I. INTRODUCTION Congress enacted the Sherman Act (1) in 1890 to prohibit restraints of trade and to promote competition. (2) A critical element in the enforcement of the Sherman Act is consistency. With over 100 years of case law history, plaintiffs and defendants in antitrust litigation can normally find and skew case law or dicta to support their positions. Consistency is essential because antitrust litigation is typically very time consuming, detail oriented, and expensive. (3) If the parties to the lawsuit do not know what to expect from the court and what test or rule will apply to them, there will be perverse consequences: private plaintiffs, the Department of Justice, and the Federal Trade Commission ("Commission") may not be willing to bring antitrust lawsuits. (4) Similarly, defendant firms may be less likely to form joint ventures because of the risk that they may be held liable under the Sherman Act and face lengthy and costly lawsuits. The need for a consistent application of a designated rule for a given antitrust situation is clear. (5)