When assessing the legality of competitive restraints
imposed by joint ventures, this Court's antitrust
jurisprudence recognizes that overly lax enforcement
standards promote anticompetitive conduct and overly
restrictive enforcement standards can chill potentially
procompetitive conduct. This Court also recognizes that,
even in the context of joint ventures, certain competitive
restraints are so inherently destructive of healthy
competition that they are illegal per se.
In this case, the Sixth Circuit held that a joint
venture formed by several hospitals could avoid per se
condemnation for their efforts — including bribery and
threats of economic retaliation — to keep a lower-priced
rival from access to over 90% of the market.
Acknowledging that the circuits are split on the
governing standard, the Sixth Circuit held that joint
venture members (Respondents) are entitled to
summary judgment, dismissing all claims of Sherman
Act §1 per se violations, merely by asserting a "plausible
procompetitive rationale" for a restraint that "may
contribute to the success of [their] cooperative venture."
In so ruling, the Sixth Circuit expressly disagreed with
circuits holding that the per se standard applies unless
defendants can show that "a restraint is reasonably
necessary to achieve a joint venture's efficiencyenhancing purposes." Major League Baseball Props., Inc.
v. Salvino, Inc. , 542 F.3d 290, 339 (2d Cir. 2008)
(Sotomayor, J., concurring).

1. For a restraint to be deemed "ancillary" to a joint
venture, and thus exempt from per se condemnation,
must the restraint be reasonably necessary to
achieve an efficiency-enhancing purpose of the
venture?

2. For a joint venture to satisfy this test at summary
judgment must it substantiate through verifiable
means the claimed efficiencies and efficiencies'
relationship to the restraint, or is it sufficient for the
defendants merely to proffer a "plausible
procompetitive rationale"?

When assessing the legality of competitive restraints imposed by joint ventures