The “why” is important: Ninth Circuit rules that a tying defendant’s anticompetitive “purpose” is a relevant consideration for fact finders

In Sidibe v. Sutter Health,[1] a 2-1 majority of a Ninth Circuit panel held that the district court erroneously failed to instruct the jury it could consider the anticompetitive purpose underlying Sutter Health’s (“Sutter”) tying arrangement, and improperly excluded evidence of pre-2006 conduct that bore on its anticompetitive purpose. In a comprehensive rule-of-reason analysis, the Ninth Circuit majority reminded district courts that more than a century of U.S. Supreme Court jurisprudence “emphasize[s] the need to consider ‘the purpose or end sought to be attained’ by challenged [anticompetitive conduct].”[2]

Sometimes, considering the purpose of anticompetitive conduct can involve a significant historical inquiry dating back decades. The district court compounded its jury instruction errors by excluding significant evidence from the late 1990s and early 2000s when Sutter crystalized its anticompetitive strategy, which the panel majority recognized were “highly relevant.”[3] Although that evidence predated the damages period, it bore directly on whether Sutter’s conduct within the damages period was anticompetitive and had anticompetitive effects.[4] These two lessons—that anticompetitive purpose is a relevant consideration and that proof of an anticompetitive purpose may go back many years—offer important guidance not only to courts deciding thorny and complex antitrust issues, but to litigators seeking to prove or defeat an antitrust claim.

Background

Sutter is a healthcare system that includes 24 hospitals, five medical foundations, and 40 ambulatory surgery centers throughout Northern California.[5] In 2012, a class of individuals and businesses insured by health plans that contract with Sutter brought suit against it under the Sherman Act, Clayton Act, and California’s Cartwright Act.[6] The class alleged that pursuant to a tying arrangement Sutter “abused its market power in the region to charge supracompetitive rates to these health plans, which were then passed on to the class in the form of higher premiums.”[7]

Sutter contracts with class member’s health plans “to be included in those plans’ ‘networks.’”[8] The relative bargaining power of Sutter and those health plans dramatically shifted in the early 2000s:

"Prior to the late 1990s and early 2000s, each Sutter provider negotiated its own contracts with health plans. Consequently, which party had the upper hand in these negotiations—Sutter or the health plans—depended on local market conditions. If there were many providers in a market, then providers competed amongst themselves to offer lower prices to the health plans in order to be included in those plans’ networks or, if already included, to be treated as a “preferred” provider. If there were few providers in a market, or even only one provider, however, then that provider had market power and could charge higher prices to health plans.

Because Sutter is a large healthcare system in Northern California, there are several markets, or geographic regions, in which there are few or no non-Sutter providers for inpatient hospital services. Plaintiffs allege[d] that, accordingly, Sutter’s providers had market power in these regions and could charge higher prices. In other regions, however, Sutter’s providers competed with other providers, lacked market power, and were forced to charge lower prices.[9]"

But Sutter realized in the late 1990s that it could leverage its market power in “uncompetitive regions to charge higher prices in other regions as well.”[10] “To do so, around the turn of the millennium Sutter began contracting with health plans on a ‘systemwide’ basis, meaning that one contract governs the relationship and imposes common terms between a health plan and all Sutter providers.”[11] Thus, Sutter allegedly “conditioned the product the health plans wanted (in-network participation of Sutter’s providers in uncompetitive or ‘tying’ markets) on the health plans’ willingness to purchase a product they did not want or on terms they did not want (either in-network participation of or supracompetitive out-of-network rates for Sutter’s providers in more competitive or ‘tied’ markets).”[12]

Sutter Health prevails at the District Court

A decade of litigation led to a jury trial solely on the class’s Cartwright Act claim, because it was the only claim for damages.[13]

On the eve of trial, the district court excluded certain evidence under Federal Rule of Evidence 403 (hereinafter “Federal Rule 403”) dating back to before 2006—five years before the damages period, which began in 2011.[14] Although the district court acknowledged that the 2006 cutoff date was “arbitrary,” it reasoned that “evidence predating 2006 was of ‘minimal relevance’ because Sutter’s systemwide contracts were renegotiated regularly and the specific contracts that Plaintiffs alleged had caused them harm during the damages period were negotiated and took effect shortly before 2011.”[15]

Additionally, the district court made a key ruling with respect to the jury instruction on how to prove unreasonable course of conduct and tying claims under the Cartwright Act.[16] Both the class and Sutter had submitted proposed jury instructions based on the Judicial Council of California Civil Jury Instructions (“CACI”) 3405 and 3411, “which require a plaintiff to prove (among other things) that ‘the purpose or effect [of defendant’s] conduct was to restrain competition’ and instruct the jury to weigh the ‘anticompetitive or beneficial purpose or effect’ of a challenged restraint, respectively.”[17] However, Sutter’s proposed instructions omitted the word “purpose” because, in Sutter’s view, precedent that “anticompetitive purpose alone does not offend the antitrust laws” required removing the word “purpose” from the jury instructions.[18] The district court agreed and removed the word “purpose” from both instructions.[19] Ultimately, the jury was instructed that “Plaintiffs had to prove that ‘the effect of Sutter’s conduct was to restrain competition,’ and that the jury should consider whether ‘Sutter’s challenged restraint has an anticompetitive or beneficial effect on competition.’”[20]

After a four-week trial, the jury returned a defense verdict in favor of Sutter on both the tying and unreasonable course of conduct claims under the Cartwright Act.[21]

The Ninth Circuit reverses the District Court

On June 4, 2024, a panel of the Ninth Circuit reversed in a 2-1 decision. The majority held the district court made two errors: It failed to instruct the jury that Sutter’s “purpose” was a relevant consideration under the Cartwright Act; and it wrongly excluded “highly relevant” evidence of Sutter’s purpose and conduct because it occurred before 2006, an “arbitrary” cutoff the district court had established based upon its findings regarding the damages limitations period.[22]

Whether the jury should be instructed regarding anticompetitive “purpose”

The Ninth Circuit majority held that the district court’s elimination of the word “purpose” from the jury instructions constituted legal error.[23] The Cartwright Act uses the word “purpose” several times, including in its prohibition of “every trust,” which it defines as combinations of skill, capital, or luck having certain “purposes.”[24] The Cartwright Act “likewise explains that an agreement or combination is not unlawful if its ‘purpose and effect’ is ‘to promote, encourage or increase competition.’”[25]

But the California Cartwright Act is not alone in identifying the relevance of “purpose,” the federal model jury instructions also “list ‘the history of the restraint’ and ‘the reasons for adopting the particular practice that is alleged to be a restraint’ as relevant factors in determining whether a course of conduct is reasonable or unreasonable.”[26] In the same vein, the ABA’s Model Civil Jury Instructions provide that proof of harmful effect on competition may be shown by “the purpose and nature of the restraint.”[27]

The Sidibe majority also emphasized that “decisions by the U.S. Supreme Court likewise emphasize the need to consider ‘the purpose or end sought to be attained’ by a challenged restraint.”[28] Justice Brandeis famously articulated the rule-of-reason analysis more than a century ago in Chicago Board of Trade v. United States, explaining that “[t]he true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition.”[29] But, importantly, to determine the effect of a restraint, the surrounding facts including the “history” of the restraint and its “purpose” are “relevant”:

"The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences."[30]

To be sure, as the Sidibe majority explained, “anticompetitive purpose is but one factor that a trier of fact may consider,” but the fact finder is “not . . . required to do so.”[31] Thus, as the Ninth Circuit summarized, Sutter’s position was “that no court has ever held that anticompetitive purpose alone can prove a claim of an unreasonable course of conduct.”[32] And the form jury instructions the parties based their proposed instructions upon in Sidibe both required showings of “anticompetitive effect.”[33] But Sutter’s position mistook the “problem” with the jury instructions: “[T]he jury was not instructed that it could even consider anticompetitive purpose.”[34]

Significantly, the Ninth Circuit majority recognized that the “very nature” of rule-of-reason analysis makes it clear that it “is a flexible one that ‘requires courts to conduct a fact-specific assessment of market power and market structure.’”[35] And in this regard anticompetitive purpose is “one of several relevant factors that a trier may consider” “[a]s a means of determining anticompetitive effect.”[36] And although the jury “is not required to rely on any one factor . . . it must have the option of considering” relevant factors such as anticompetitive purpose.[37] The jury can only have such an option, of course, if it is “properly instructed that the factor exists.”[38] Failing to instruct the jury it could consider anticompetitive purpose necessarily had the effect of “fail[ing] to instruct the jury that it could consider evidence of Sutter’s anticompetitive purpose.”[39] Thus, the Ninth Circuit majority held that the failure to include anticompetitive purpose in the jury instructions misstated the law.[40]

This same point confirmed that the district court’s error was not harmless. To attempt to carry its burden of proving harmless error, Sutter pointed to another jury finding: The jury’s answer in the negative to the question whether Sutter “force[d] the class health plans to agree to contracts that had terms that prevented the plans from steering plaintiffs to lower-cost non-Sutter hospitals within the plan network.”[41] But “[c]onsideration of a party’s motives often shapes interpretations of that party’s actions, particularly under the rule of reason’s ‘fact-specific’ analysis.”[42] Accordingly, the panel majority concluded that Sutter’s “motives”—including as shown by the improperly excluded pre-2006 evidence that “was offered to show that Sutter’s conduct was motivated by anticompetitive purpose”—bore directly on whether Sutter “forced” the health plans to adopt the systemwide contracts.[43] Because Sutter could not prove that the legal error was harmless, reversal was warranted.[44]

Pre-2006 admissions, conduct, and other evidence

The Ninth Circuit majority also held that the district court abused its discretion by excluding the pre-2006 evidence bearing on Sutter’s anticompetitive purpose under Federal Rule 403.[45] “The district court’s justification for excluding evidence under Rule 403 was informed by its 2006 cutoff date for relevant evidence,” even though the district court had recognized that the 2006 cutoff date was “arbitrary.”[46] To be sure, the majority made it clear that district courts may set a reasonable cutoff date—but a reasonable cutoff date only exists to ensure that trial “does not become sidetracked by ‘collateral issues,’” and “[i]n this way they are much like other forms of balancing under Rule 403.”[47]

 The panel majority reviewed the pre-2006 evidence and concluded that it was “highly relevant” and “not merely background context.”[48] Indeed, the “history and purpose of Sutter’s conduct was an essential aspect of [the class’s] legal theory, not merely as context from before 2006 but as evidence of what Sutter did (and the effects thereof) during the class period.”[49] After all, “evidence from the past that a party engaged in certain conduct with the intent or belief that its conduct would have anticompetitive effects in the future is probative of whether that party’s conduct had anticompetitive effects.”[50]

And more directly, the panel majority stressed that under both the Cartwright Act and the Sherman Act, precedent makes clear that “‘the history of the restraint and the reasons for its adoption’ are crucial factors under the rule of reason,” and so “[e]valuating a party’s motives is particularly important when applying the rule of reason’s ‘fact-specific assessment.’”[51] In point of fact, a familiar and oft-asserted defense to such a claim is to “rebut a prima facie case of anticompetitive effects with evidence of a ‘procompetitive rationale for the restraint.’”[52] But that defense shows precisely why evidence of anticompetitive motive—even evidence that predates a damages period—is so important. Yet, according to the panel majority, the district court’s exclusion of such evidence hamstrung the class’s ability to rebut Sutter’s putatively innocent explanations for its behavior.[53]

Evidence of intent is also highly probative for a tying claim. According to the panel majority: “Evidence that the defendant intended to link the sales of its tying and tied products or intended to exercise market power in the tying market . . . is probative of whether the defendant in fact engaged in either conduct—even if the specific evidence predates the class period.”[54] The majority emphasized: “without knowing what a defendant intended to do, it may be impossible to determine what a defendant actually did.”[55] As the majority’s earlier discussion of the district court’s erroneous jury instruction illustrates, that was precisely the problem in Sidibe.

For instance, in 1997 and 1998 memos, Sutter admitted that systemwide contracting provided “better leverage” over health plans, generating profits of hundreds of millions of dollars per year; and its 2006 admission looking back at pre-2006 conduct admitted that “we force [health plans] to pay us more” including “pay[ing] us more than the market,” and that Sutter forced the health plans to do so “because we could.”[56] Taken together, “this evidence would have bolstered [the class’s] allegations that Sutter used systemwide contracting to link in-network participation in, or supracompetitive non-par rates at, its tying and tied hospitals (the first element of a tying claim).”[57]

The panel majority pointed out that it was not only “difficult to understand Sutter’s alleged tying and other anticompetitive conduct without understanding the history of its systemwide contracting practices,” but also “contemporaneous evidence that Sutter was able to implement systemwide contracting over the health plans’ objections is essential evidence to prove that Sutter had market power, the second element of a tying claim under the Cartwright Act.”[58] The district court’s exclusion of such evidence hampered the class’s ability to rebut Sutter’s “repeated[] conten[tion]” during closing argument that “Sutter ‘does not have sufficient market power to tie.’”[59]

The majority summarized the synergistic effect the excluded evidence could have had on proving the class’s tying claim:

"In short, Plaintiffs’ tying claim contended that Sutter linked in-network participation in (or supracompetitive non-par rates at) its tying and tied hospitals by forcing health plans to accept anticompetitive contract terms by negotiating on a systemwide basis rather than individually. Evidence that Sutter had previously employed individual contracts during the 1990s, switched to systemwide contracting in the early 2000s with the intent of imposing above-market prices, and then “forced” health plans to pay higher rates “because we could” is essential evidence both that Sutter did engage in tying and that Sutter amassed the market power to engage in tying—the first and second elements of a tying claim, respectively. Meanwhile, Sutter’s admission that it forced health plans to pay higher rates is direct evidence of anticompetitive effect, and evidence of Sutter’s switch from individual to systemwide contracting and Sutter’s belief that systemwide contracting would be more profitable is additionally probative of “the history of the restraint and the reasons for [the] adoption” of Sutter’s challenged contract terms, which are themselves means of proving anticompetitive effects."[60]

The district court’s “blanket cutoff” of relevance at 2006 could not justify excluding this highly relevant evidence.[61] Nor could other reasons evidence is sometimes excluded under Rule 403. For example, the excluded evidence was not “needlessly cumulative” because it offered “important advantages” such as being “Sutter’s own admissions,” which are “more persuasive . . . than other evidence”; being “contemporaneous,” which “is commonly understood to be more reliable than later recollections”; and bearing on “witness[] credibility,” which was necessary to rebut testimony from Sutter fact witnesses (which was then relied upon by Sutter’s expert and then became fodder for Sutter’s closing arguments).[62] Nor was there any serious risk of “unfair prejudice.”[63]

The dissenting opinion would have affirmed the district court

Judge Bumatay dissented.[64] Regarding jury instructions, Judge Bumatay disagreed that anticompetitive purpose is “essential to a rule-of-reason claim” and thus concluded that “based on the shakiest of foundations, the majority crafts a new rule that alters the direction of antitrust law.”[65] As to the pre-2006 evidence, Judge Bumatay opined that “[u]nder Rule 403 of the Federal Rules of Evidence, district courts have the authority to manage complex trials by setting reasonable cutoff dates for historical evidence.”[66] The dissent further reasoned:

"[W]hile historical evidence may be probative in many cases, perhaps especially in antitrust cases, that doesn’t mean a party may introduce every piece of evidence from the inception of time. Instead, we leave it to the district court's discretion to place reasonable limits on admissible evidence."[67] 

Whether a cutoff is reasonable turns in part on the relevance of the historical evidence, and the dissent noted the panel majority and the district court took contrasting views of the pre-2006 evidence’s relevance.[68] The dissent chided the majority for “impos[ing]” its view of the evidence’s relevance over the court’s view.[69] The dissent further reasoned that with respect to both claims of error, even if the district court erred the error was “harmless.”[70]

The significance of the Sidibe decision

There are two main takeaways from the Sidibe decision. First, the majority’s holding regarding evidence of anticompetitive purpose is a pivotal reminder that antitrust litigation is not a matter of sterile economics analysis devoid of human motivation. Antitrust cases are notoriously complex; and unreasonable courses of conduct and other forms of anticompetitive conduct may be susceptible to varying interpretations. As the Sidibe majority cogently put it: “Consideration of a party’s motives often shapes interpretations of that party’s actions, particularly under the rule of reason’s ‘fact-specific’ analysis.”[71] In a practice area seemingly dominated by econometric analyses, anticompetitive purpose remains an essential element of proof, and a defendant’s admission of engaging in anticompetitive conduct “because [it] could” can be every bit as compelling as the most thorough economic modeling.[72] While the Ninth Circuit panel was reviewing the California Cartwright Act in Sidibe, its observation that “federal law agrees with California law that anticompetitive purpose is a relevant factor” is an important reminder for federal litigants as well.[73]

Second, antitrust cases involve long stories that often stretch back decades. Courts understandably want to prevent unwieldy trials that take months to try, let alone decide. But while courts undoubtedly have the power to make a reasonable determination that evidence long pre-dating the suit may have less relevance, “evidence from the past that a party engaged in certain conduct with the intent or belief that its conduct would have anticompetitive effects in the future is probative of whether that party’s conduct ha[s] anticompetitive effects” in the present.[74] Courts and litigators must meaningfully grapple with the determination of whether evidence from the past directly bears on a plaintiff’s claims or else is merely of faint or speculative relevance or risks being needlessly cumulative. Doing so will more faithfully serve the goal of ascertaining the truth and elucidating whether the challenged restraint helps or harms competition.

*Renner Walker is Of Counsel in New York

Renner must express his sincere gratitude to Irving Scher, without whose guidance and contributions this article would not have been possible.

Footnotes

[1] Sidibe v. Sutter Health, 103 F.4th 675 (9th Cir. 2024). Hausfeld is counsel of record in separate action against Sutter.
[2] Id. at 685 (quoting Bd. of Trade of Chi. v. United States, 246 U.S. 231, 238 (1918)).
[3] See id. at 692, 694–98.
[4] See id.
[5] Id. at 679.
[6] Id. at 689.
[7] Id. at 679.
[8] Id. at 689.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 689–90.
[13] Id. at 681. However, “[t]he parties also stipulated that, after the jury trial, the district court would decide (1) whether to award injunctive relief under the Cartwright Act, Sherman Act, and California’s Unfair Competition Law; and (2) whether Plaintiffs were entitled to restitution under the Unfair Competition Law.” Id. As the Ninth Circuit noted, “[t]hese determinations would likely concern the same evidence presented to the jury.” Id.
[14] Id. at 680–81. Other excluded evidence “necessarily looked back” at pre-2006 statements and conduct. See id.
[15] Id. at 692.
[16] Id. at 681–82.
[17] Id. at 681 (quoting CACI 3405 and 3411) (emphasis added).
[18] Id. at 681; see also L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 726 F.2d 1381, 1395 (9th Cir. 1984).
[19] Sidibe, 103 F.4th at 681. The Ninth Circuit panel majority observed that the district court was “so thorough in erasing any mention of ‘purpose’ from the jury instructions . . .that [it] replaced ‘[t]he reasonableness of the stated purpose for the restraint’ with ‘[t]he reasonableness of the restraint’ in CACI 3411, even though both Plaintiffs and Sutter had proposed keeping that language in that instruction.” Id.
[20] Id. at 681–82. This instruction resembles (and perhaps conflates) the first two steps of the “three-step, burden-shifting framework” the U.S. Supreme Court discussed in Ohio v. Am. Express Company. See 585 U.S. 529, 541–42 (2018). However, the trial (and thus the appeal) “solely concern[ed]” California’s Cartwright Act. See Sidibe, 103 F.4th at 685. “[T]he California Supreme Court ‘no longer’ treats [the Cartwright Act] as ‘coextensive with the Sherman Act.’” Id. (quoting Samsung Elec. Co., Ltd. v. Panasonic Corp., 747 F.3d 1199, 1205 n.4 (9th Cir. 2014)); see also Aryeh v. Canon Business Sols., Inc., 292 P.3d 871, 877 (Cal. 2013).
[21] Sidibe, 103 F.4th at 682.
[22] The majority’s opinion drew a strong dissent from Judge Bumatay. See id. at 706–24 (Bumatay, J., dissenting). The dissent is discussed infra at nn. 65–71 and accompanying text.
[23] See id. at 684–87 (majority opinion).
[24] Id. at 685 (quoting Cal. Bus. & Prof. Code § 16725).
[25] Id. (quoting Cal. Bus. & Prof. Code § 16725 (emphasis in Sidibe)).
[26] Id. at 685–86 (quoting 3A Kevin F. O’Malley, Jay E. Grenig, & Hon. William C. Lee, Fed. Jury Prac. & Instr. § 150:21 (6th ed. Feb. 2024 update)).
[27] See ABA Section of Antitrust Law, Model Jury Instructions in Civil Antitrust Cases, Ch. 1C, Instruction 3B (2016).
[28] Id. (quoting Bd. of Trade of Chi. v. United States, 246 U.S. 231, 238 (1918)); see also United States v. Topco Assocs., Inc.
405 U.S. 596, 607 (1972) (also listing as relevant factors “the history of the restraint and the reasons for its adoption”).
[29] Bd. of Trade of Chi., 246 U.S. at 238; see also Sidibe, 103 F.4th at 686 (explaining that the “ultimate goal” of a rule-of-reason analysis “is to determine the ‘restraint’s actual effect on competition’” (quoting Ohio v. Am. Express Co., 585 U.S. 529, 541 (2018))).
[30] Bd. of Trade of Chi., 246 U.S. at 238; accord Sidibe, 103 F.4th at 686.
[31] Sidibe, 103 F.4th at 686 (emphasis in original).
[32] See id. at 687 (“Because Sutter concedes that anticompetitive purpose is a relevant consideration under the Cartwright Act, Sutter’s only defense of the district court’s omissions is that no court has ever held that anticompetitive purpose alone can prove a claim of an unreasonable course of conduct.”).
[33] Id. at 687 (emphasis added). CACI 3405 requires the plaintiff to prove that “the anticompetitive effect of the restraint[s] outweighed any beneficial effect on competition,” and CACI 3411 requires juries to take into account “[t]he probable effect of the restraint” and “[t]he portion of the market affected by the restraint.” Id.
[34] Id. (emphasis in original).
[35] Id. at 686 (quoting Am. Express Co., 585 U.S. at 541) (emphasis added).
[36] Id. (emphasis in original).
[37] Id.
[38] Bd. of Trade of City of Chi., 246 U.S. at 238.
[39] See Sidibe, 103 F.4th at 686.
[40] Id. at 686–87.
[41] Id. at 687.
[42] Id. at 688.
[43] Id.
[44] Id. at 687–88.
[45] See id. at 692–703. Federal Rule 403 provides that “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
[46] Sidibe, 103 F.4th at 692.
[47] Id. at 699.
[48] Id. at 692–93.
[49] Id. at 692.
[50] Id. at 693; see also Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 710 n.15 (1962) (considering defendant’s past acts to “ascertain [the defendant’s] monopolistic intent or purpose”); U.S. Football League v. Nat’l Football League, 842 F.2d 1335, 1371 (2d Cir. 1988) (past anticompetitive conduct and the history of competition may “establish the intent, motive and method” of a restraint of trade).
[51] Sidibe, 103 F.4th at 692–93 (quoting Cipro, 187 Cal.Rptr.3d 632, 348 P.3d at 861 (first quotation) and Am. Express Co., 585 U.S. at 541 (second quotation); see also Bd. of Trade of Chi., 246 U.S. at 238.
[52] Sidibe, 103 F.4th at 693 (quoting Am. Express Co., 585 U.S. at 541–42).
[53] Id.
[54] Id. at 692–93.
[55] Id.
[56] Id. at 694.
[57] Id. at 695.
[58] Id. at 696.
[59] Id.
[60] Id. (quoting Cipro, 187 Cal.Rptr.3d 632, 348 P.3d at 861)
[61] Id. at 699.
[62] Id. at 699–701. Aside from the 2006 blanket cutoff, the risk of the evidence being cumulative was the district court’s “primary reason” for excluding the evidence. See id. at 699.
[63] Id. at 702–03.
[64] See id. at 706–24 (Bumatay, J., dissenting).
[65] Id. at 721–22 (emphasis in original).
[66] Id. at 707.
[67] Id.
[68] Id. at 713–14.
[69] Id. at 714 (“This discretionary call is one we normally leave to district courts. And it’s baffling to understand why we choose this case to impose our views on the degree of relevance. While the majority may have decided differently, the district court’s ruling doesn’t even come close to being ‘beyond the pale of reasonable justification under the circumstances.’” (quoting Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009) (simplified))).
[70] Id. at 720, 722–23.
[71] Id. at 688 (majority opinion).
[72] Id. at 694.
[73] Id. at 685. Although the Sidibe majority was careful to point out that the appeal there “solely concern[ed] the Cartwright Act” and that it “express[ed] no opinion on other jurisdictions’ descriptions of the rule of reason,” the majority’s decision was firmly grounded in “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.” Id. at 685, 686.
[74] Sidibe, 103 F.4th at 693.