“Our dissenting colleague is mistaken: our decision today announces no new legal rule but rather reflects the widespread consensus that consideration of anticompetitive purpose is an essential aspect of the rule of reason analysis under both the Cartwright Act and the Sherman Act,” she said.
Judge Koh said Judge Bumatay “latches on” to decisions interpreting antitrust law finding that anticompetitive purpose “is but one factor that a trier of fact may consider, not that it is required to do so.” But in doing so, Judge Bumatay “fundamentally mischaracterizes the district court’s error,” she said.
“The trier of fact is not required to rely on any one factor, but it must have the option of considering that factor, which is only possible if properly instructed that the factor exists,” the judge wrote. “Here, the jury was not instructed that it could consider anticompetitive purpose.”
In his dissent, Judge Bumatay opened by quoting the soap opera “Days of Our Lives.”
“As sands in the hourglass, so are the days of our lives,” he wrote, adding that in soaps “it can be difficult to keep up with the latest twists and turns in their characters’ lives.” Yet to catch up on characters’ present lives, it would be “nearly impossible” to watch every episode over the last 10 years, he said.
