Last week, in American Needle, Inc. v. NFL, the Supreme Court unanimously held that the 32 NFL teams’ pooling of their intellectual property rights into a single company for the purposes of jointly licensing those rights constitutes concerted action under § 1 of the Sherman Act. In so holding, the Court announced a new functional test for identifying concerted action that focuses on whether the challenged conduct “joins together separate decisionmakers” pursuing different economic interests and thereby deprives the market of competition between those independent decisionmakers.
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