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ANTITRUST LOSSES RISK UNDERMINING PER SE RULE

Heather Nyong'o

Partner, Cleary Gottlieb

Joseph Kay

Associate Attorney, Cleary Gottlieb

The Antitrust Division at the DOJ has historically received wide deference from courts in criminal prosecutions. The clearest example of this is the per se rule, which is among the strongest tools in all of criminal law. However, recent efforts by the DOJ to bring novel prosecutions run the risk of stretching the per se presumption beyond its limit. In this year alone, a district court concerned about application of the per se rule to a novel no-poach prosecution requ...

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