6 Antitrust (15 U.S.C. §§ 1, ET SEQ.

• Library: Federal Civil Jury Instructions for the Fifth Circuit
• Edition: 2020
• Section: Antitrust (15 U.S.C. §§ 1, Et Seq.)

6

ANTITRUST (15 U.S.C. §§ 1, ET SEQ.)

Comment

The antitrust law instructions included in previous editions of

Fifth Circuit Pattern Jury Instructions are out of date, and courts

and parties should not rely upon them.

The following sources may be helpful in drafting jury charges

in antitrust cases:

Kevin F. O’Malley, et al., Federal Jury Practice Instructions,

ch. 150, Antitrust-Private Action (5th ed. 2001), and Kevin F.

O’Malley, et al., Federal Jury Practice Instructions Civil Companion

Handbook, vol. 1, ch.1 (2011).

American Bar Association Antitrust Section, Model Jury

Instructions in civil Antitrust Cases (A.B.A., Chicago, Ill., 2005).

This source contains instructions for claims under Sherman Act

§ 1 and § 2. Note, however, that this volume has not been

supplemented, and there have been developments in the law since

2005. See, e.g.,Pacific Bell Tel. Co. v. Linkline Commc’ns, 555 U.S.

438 (2009) (price-squeeze claims may not be brought under Section

2 of the Sherman Antitrust Act when the defendant has no

antitrust duty to deal with the plaintiff at wholesale level); Leegin

Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877 (2007) (rule of

per se illegality no longer applies to vertical agreements to fix min-

imum resale prices) (overruling Dr. Miles Medical Co. v. John D.

Park & Sons Co., 220 U.S. 373 (1911)); Illinois Tool Works Inc. v.

Indep. Ink, Inc., 547 U.S. 28 (2006) (possession of a patent does not

create a presumption of market power for purposes of analyzing

tying claims); Texaco v. Dagher, 547 U.S. 1 (2006) (rule of per se il-

legality does not apply to setting of prices by competitors in a joint

venture); see also Verizon Commc’ns Inc. v. Trinko, LLP, 540 U.S.

398 (2004) (refusing to expand limited exceptions to rule that there

is no duty to aid rivals under Section 2 of the Sherman Act; clarify-

ing that proof of a dangerous probability of success is an element

of a monopoly leveraging claim).

In addition, the American Bar Association Section on Antitrust

Law has compiled antitrust jury instructions that have been used

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