Whether an agreement among the members of a joint venture on how best to distribute the venture's jointly created core product may be condemned under the Sherman Act without requiring the plaintiff to establish that defendants harmed competition in a properly defined antitrust market?

QUESTIONS PRESENTED The Sherman Act’s rule of reason requires plaintiffs to allege and prove harm to competition in a properly defined antitrust market. In the First, Second, Third, Sixth, and Seventh Circuits, challenged agreements among joint venture participants governing the venture’s core activities are assessed under this full rule of reason. In contrast, in the decision below, the Ninth Circuit held that agreements governing the distribution of a venture’s jointly produced product—in this case, NFL Football telecasts—could be condemned without full rule-of-reason review, t.e., without requiring plaintiffs to establish harm to competition in a properly defined antitrust market. The Ninth Circuit compounded the problem by . permitting plaintiffs—who purchased nothing from the joint venture—to pursue a damages claim against the venture notwithstanding this Court’s limitation on indirect purchaser claims in Tllinois Brick. Consistent with rulings of the Third and Eighth | Circuits, but contrary to rulings of the Fourth and Eleventh Circuits, the Ninth Circuit held that an antitrust plaintiff may assert a damages claim against alleged co-conspirators as long as the plaintiff purchased from a middleman that also participated in the alleged conspiracy, even if the alleged conspiracy did not concern the price plaintiffs paid. The questions presented are: 1. Whether an agreement among the members of a joint venture on how best to distribute the venture’s ii jointly created core product may be condemned under the Sherman Act without requiring the plaintiff to establish that defendants harmed competition in a properly defined antitrust market? 2. Whether, notwithstanding this Court’s decision in Illinois Brick, antitrust damages claims may be ; brought by indirect purchasers who do not allege that : they paid a price fixed by the alleged conspirators? : | | | iii