The Pro-Competitive Justification

In many marketing initiatives that arguably entail some restraint of trade, it may be possible to invoke “pro-competitive justifications” writes Jeffery M. Cross in his column “The Antitrust Litigator,” in Today’s General Counsel. “The issue of whether there is a plausible pro-competitive justification becomes an important consideration of whether restraints will pass muster under the antitrust laws,” he says. “Understanding this concept is a key to determining whether the initiative will be deemed lawful.” In this article, he looks at the concept, what it means, and where and how it might be successfully invoked.