
Justice
BRENNAN delivered the opinion of the Court.
This case
requires that we decide whether a per se violation of § 1 of the Sherman
Act, §15 U.S.C. 1, occurs when a cooperative buying agency comprising
various retailers expels a member without providing any procedural means
for challenging the expulsion. [FN1] The case also raises broader
questions as to when per se antitrust analysis is appropriately applied to
joint activity that is susceptible of being characterized as a concerted
refusal to deal.
FN1. That
section reads in relevant part:
"Every
contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several States, or with foreign
nations, is declared to be illegal."
I.
Because the
District Court ruled on cross-motions for summary judgment after only
limited discovery, this case comes to us on a sparse record. Certain
background facts are undisputed. Petitioner Northwest Wholesale Stationers
is a purchasing cooperative made up of approximately 100 office supply
retailers in the Pacific Northwest States. The cooperative acts as the
primary wholesaler for the retailers. Retailers that are not members of
the cooperative can purchase wholesale supplies from Northwest at the same
price as members. At the end of each year, however, Northwest distributes
its profits to members in the form of a percentage rebate on purchases.
Members therefore effectively purchase supplies at a price significantly
lower than do nonmembers. [FN2] Northwest also provides certain
warehousing facilities. The cooperative arrangement thus permits the
participating retailers to achieve economies of scale in purchasing and
warehousing that would otherwise be unavailable to them. In fiscal 1978
Northwest had $5.8 million in sales. App. 73.
FN2.
Although this patronage rebate policy is a form of price discrimination,
§ 4 of the Robinson-Patman Act specifically sanctions such activity by
cooperatives:
"Nothing
in this Act shall prevent a cooperative association from returning to its
members, producers, or consumers the whole, or any part of, the net
earnings or surplus resulting from its trading operations, in proportion
to their purchases or sales from, to, or through the association." 49
Stat. 1528, §15 U.S.C. 13b.
A relevant
state-law provision provides analogous protection. §Ore.Rev.Stat. 646.030
(1983).
Respondent
Pacific Stationery & Printing Co. sells office supplies at both the
retail and wholesale levels. Its total sales in fiscal 1978 were
approximately $7.6 million; the record does not indicate what percentage
of revenue is attributable to retail and what percentage is attributable
to wholesale. Pacific became a member of Northwest in 1958. In 1974
Northwest amended its bylaws to prohibit members from engaging in both
retail and wholesale operations. See id., at 50, 59. A grandfather
clause preserved Pacific's membership rights. See id., at 59. In
1977 ownership of a controlling share of the stock of Pacific changed
hands, id., at 70, and the new owners did not officially bring this
change to the attention of the directors of Northwest. This failure to
notify apparently violated another of Northwest's bylaws. See id.,
at 59 (Bylaws, Art. VIII, § 5).
In 1978 the
membership of Northwest voted to expel Pacific. Most factual matters
relevant to the expulsion are in dispute. No explanation for the expulsion
was advanced at the time, and Pacific was given neither notice, a hearing,
nor any other opportunity to challenge the decision. Pacific argues that
the expulsion resulted from Pacific's decision to maintain a wholesale
operation. See Brief in Opposition 11. Northwest contends that the
expulsion resulted from Pacific's failure to notify the cooperative
members of the change in stock ownership. See Pet. for Cert. 8. The
minutes of the meeting of Northwest's directors do not definitively
indicate the motive for the expulsion. App. 75-77. It is undisputed that
Pacific received approximately $10,000 in rebates from Northwest in 1978,
Pacific's last year of membership. Beyond a possible inference of loss
from this fact, however, the record is devoid of allegations indicating
the nature and extent of competitive injury the expulsion caused Pacific
to suffer.
Pacific
brought suit in 1980 in the United States District Court for the District
of Oregon alleging a violation of § 1 of the Sherman Act. The gravamen of
the action was that Northwest's expulsion of Pacific from the cooperative
without procedural protections was a group boycott that limited Pacific's
ability to compete and should be considered per se violative of § 1. See
Complaint ¶ 8, App. 4-5. On cross-motions for summary judgment the
District Court rejected application of the per se rule and held instead
that rule-of-reason analysis should govern the case. Finding no
anticompetitive effect on the basis of the record as presented, the court
granted summary judgment for Northwest. See App. to Pet. for Cert.
22-24.
The Court
of Appeals for the Ninth Circuit reversed, holding "that the
uncontroverted facts of this case support a finding of per se
liability." 715 F.2d 1393, 1395 (1983). The court reasoned that the
cooperative's expulsion of Pacific was an anticompetitive concerted
refusal to deal with Pacific on equal footing, which would be a per se
violation of § 1 in the absence of any specific legislative mandate for
self-regulation sanctioning the expulsion. The court noted that § 4 of
the Robinson-Patman Act, §15 U.S.C. 13b, specifically approves the price
discrimination occasioned by such expulsion and concluded that § 4
therefore provided a mandate for self- regulation. Such a legislative
mandate, according to the court, would ordinarily result in evaluation of
the challenged practice under the rule of reason. But, drawing on Silver
v. New York Stock Exchange, 373 U.S. 341, 348-349, 83 S.Ct. 1246,
1252-1253, 10 L.Ed.2d 389 (1963), the court decided that rule-of-reason
analysis was appropriate only on the condition that the cooperative had
provided procedural safeguards sufficient to prevent arbitrary expulsion
and to furnish a basis for judicial review. Because Northwest had not
provided any procedural safeguards, the court held that the expulsion of
Pacific was not shielded by Robinson-Patman immunity and therefore
constituted a per se group boycott in violation of § 1 of the Sherman
Act. 715 F.2d, at 1395-1398.
We granted
certiorari to examine this application of Silver v. New York Stock
Exchange, supra, in an area of antitrust law that has not been
free of confusion. [FN3] 469 U.S. 814, 105 S.Ct. 77, 83 L.Ed.2d 26 (1984).
We reverse.
FN3. See
L. Sullivan, Law of Antitrust 229-230 (1977); Bauer, Per Se Illegality of
Concerted Refusals to Deal: A Rule Ripe for Reexamination, 79 Colum.L.Rev.
685 (1979).
II.
The
decision of the cooperative members to expel Pacific was certainly a
restraint of trade in the sense that every commercial agreement restrains
trade. Chicago Board of Trade v. United States, 246 U.S. 231, 238,
38 S.Ct. 242, 243, 62 L.Ed. 683 (1918). Whether this action violates § 1
of the Sherman Act depends on whether it is adjudged an unreasonable
restraint. Ibid. Rule-of-reason analysis guides the inquiry, see Standard
Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619
(1911), unless the challenged action falls into the category of
"agreements or practices which because of their pernicious effect on
competition and lack of any redeeming virtue are conclusively presumed to
be unreasonable and therefore illegal without elaborate inquiry as to the
precise harm they have caused or the business excuse for their use." Northern
Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2
L.Ed.2d 545 (1958).
This per se
approach permits categorical judgments with respect to certain business
practices that have proved to be predominantly anticompetitive. Courts can
thereby avoid the "significant costs" in "business
certainty and litigation efficiency" that a full-fledged
rule-of-reason inquiry entails. Arizona v. Maricopa County Medical
Society, 457 U.S. 332, 343-344, 102 S.Ct. 2466, 2472-2473, 73 L.Ed.2d
48 (1982). See also United States v. Topco Associates, Inc., 405
U.S. 596, 609-610, 92 S.Ct. 1126, 1134-1135, 31 L.Ed.2d 515 (1972). The
decision to apply the per se rule turns on "whether the practice
facially appears to be one that would always or almost always tend to
restrict competition and decrease output ... or instead one designed to
'increase economic efficiency and render markets more, rather than less,
competitive.' " Broadcast Music, Inc. v. Columbia Broadcasting
System, Inc., 441 U.S. 1, 19-20, 99 S.Ct. 1551, 1562-1563, 60 L.Ed.2d
1 (1979) (citations omitted). See also National Collegiate
Athletic Assn. v. Board of Regents of University of Oklahoma, 468 U.S.
85, 103-104, 104 S.Ct. 2948, 2961-2962, 82 L.Ed.2d 70 (1984) ("Per se
rules are invoked when surrounding circumstances make the likelihood of
anticompetitive conduct so great as to render unjustified further
examination of the challenged conduct").
This Court
has long held that certain concerted refusals to deal or group boycotts
are so likely to restrict competition without any offsetting efficiency
gains that they should be condemned as per se violations of § 1 of the
Sherman Act. See Klor's, Inc. v. Broadway-Hale Stores, Inc., U.S.
207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); United States v. General
Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966);
Radiant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S.
656, 81 S.Ct. 365, 5 L.Ed.2d 358 (1961); Associated Press v. United
States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Fashion
Originators' Guild of America, Inc. v. FTC, 312 U.S. 457, 61 S.Ct.
703, 85 L.Ed. 949 (1941); Eastern States Retail Lumber Dealers' Assn.
v. United States, 234 U.S. 600, 34 S.Ct. 951, 58 L.Ed. 1490 (1914).
The question presented in this case is whether Northwest's decision to
expel Pacific should fall within this category of activity that is
conclusively presumed to be anticompetitive. [FN4] The Court of Appeals
held that the exclusion of Pacific from the cooperative should
conclusively be presumed unreasonable on the ground that Northwest
provided no procedural protections to Pacific. Even if the lack of
procedural protections does not justify a conclusive presumption of
predominantly anticompetitive effect, the mere act of expulsion of a
competitor from a wholesale cooperative might be argued to be sufficiently
likely to have such effects under the present circumstances and therefore
to justify application of the per se rule. These possibilities will be
analyzed separately.
FN4.
Northwest raises no challenge before this Court to the conclusion of the
Court of Appeals that the cooperative's decision to expel Pacific was a
"combination or conspiracy" affecting interstate commerce within
the meaning of § 1 of the Sherman Act.
A
The Court
of Appeals drew from Silver v. New York Stock Exchange, 373 U.S.
341, 83 S.Ct. 1246, 10 L.Ed.2d 389 (1963), a broad rule that the conduct
of a cooperative venture--including a concerted refusal to deal--
undertaken pursuant to a legislative mandate for self-regulation is immune
from per se scrutiny and subject to rule-of-reason analysis only if
adequate procedural safeguards accompany self-regulation. We disagree and
conclude that the approach of the Court in Silver has no proper
application to the present controversy.
The Court
in Silver framed the issue as follows:
"[W]hether
the New York Stock Exchange is to be held liable to a nonmember
broker-dealer under the antitrust laws or regarded as impliedly immune
therefrom when, pursuant to rules the Exchange has adopted under the
Securities Exchange Act of 1934, it orders a number of its members to
remove private direct telephone wire connections previously in operation
between their offices and those of the nonmember, without giving the
nonmember notice, assigning him any reason for the action, or affording
him an opportunity to be heard." Id., at 343, 83 S.Ct., at
1249. Because the New York Stock Exchange occupied such a dominant
position in the securities trading markets that the boycott would
devastate the nonmember, the Court concluded that the refusal to deal with
the nonmember would amount to a per se violation of § 1 unless the
Securities Exchange Act provided an immunity. Id., at 347-348, 83
S.Ct., at 1251-1252. The question for the Court thus was whether
effectuation of the policies of the Securities Exchange Act required
partial repeal of the Sherman Act insofar as it proscribed this aspect of
exchange self-regulation.
Finding
exchange self-regulation--including the power to expel members and limit
dealings with nonmembers--to be an essential policy of the Securities
Exchange Act, the Court held that the Sherman Act should be construed as
having been partially repealed to permit the type of exchange activity at
issue. But the interpretive maxim disfavoring repeals by implication led
the Court to narrow permissible self-policing to situations in which
adequate procedural safeguards had been provided.
"Congress
... cannot be thought to have sanctioned and protected self- regulative
activity when carried out in a fundamentally unfair manner. The point is
not that the antitrust laws impose the requirement of notice and a hearing
here, but rather that, in acting without according petitioners these
safeguards in response to their request, the Exchange has plainly exceeded
the scope of its authority under the Securities Exchange Act to engage in
self- regulation." Id., at 364, 83 S.Ct., at 1260 (footnote
omitted).
Thus it was
the specific need to accommodate the important national policy of
promoting effective exchange self-regulation, tempered by the principle
that the Sherman Act should be narrowed only to the extent necessary to
effectuate that policy, that dictated the result in Silver.
Section 4
of the Robinson-Patman Act is not comparable to the self-policing
provisions of the Securities Exchange Act. That section is no more than a
narrow immunity from the price discrimination prohibitions of the
Robinson- Patman Act itself. The Conference Report makes clear that the
exception was intended solely to "safeguard producer and consumer
cooperatives against any charge of violation of the act based on their
distribution of earnings or surplus among their members on a patronage
basis." H.R.Conf.Rep. No. 2951, 74th Cong., 2d Sess., 9 (1936)
(emphasis added). This section has never been construed as granting
cooperatives a blanket exception from the Robinson-Patman Act and cannot
plausibly be construed as an exemption to or repeal of any portion of the
Sherman Act. [FN5] "There is nothing in the last section of the bill
[containing § 4] that distinguishes cooperatives, either favorably or
unfavorably, from other agencies in the streams of production and trade,
so far as concerns their dealings with others." 80 Cong.Rec. 9419
(1936) (remarks of Rep. Utterback).
FN5. See,
e.g., American Motor Specialties Co. v. FTC, 278 F.2d 225, 229
(CA2), cert. denied, 364 U.S. 884, 81 S.Ct. 169, 5 L.Ed.2d 105 (1960).
In light of
this circumscribed congressional intent, there can be no argument that §
4 of the Robinson-Patman Act should be viewed as a broad mandate for
industry self-regulation. No need exists, therefore, to narrow the Sherman
Act in order to accommodate any competing congressional policy requiring
discretionary self-policing. Indeed, Congress would appear to have taken
some care to make clear that no constriction of the Sherman Act was
intended. In any event, the absence of procedural safeguards can in no
sense determine the antitrust analysis. If the challenged concerted
activity of Northwest's members would amount to a per se violation of § 1
of the Sherman Act, no amount of procedural protection would save it. If
the challenged action would not amount to a violation of § 1, no lack of
procedural protections would convert it into a per se violation because
the antitrust laws do not themselves impose on joint ventures a
requirement of process.
B
This case
therefore turns not on the lack of procedural protections but on whether
the decision to expel Pacific is properly viewed as a group boycott or
concerted refusal to deal mandating per se invalidation. "Group
boycotts" are often listed among the classes of economic activity
that merit per se invalidation under § 1. See Klor's, Inc. v.
Broadway-Hale Stores, Inc., 359 U.S., at 212, 79 S.Ct., at 709; Northern
Pacific R. Co. v. United States, 356 U.S., at 5, 78 S.Ct., at 518; Silver
v. New York Stock Exchange, 373 U.S., at 348, 83 S.Ct., at 1252;
White Motor Co. v. United States, 372 U.S. 253, 259-260, 83 S.Ct. 696,
699-700, 9 L.Ed.2d 738 (1963). Exactly what types of activity fall within
the forbidden category is, however, far from certain. "[T]here is
more confusion about the scope and operation of the per se rule against
group boycotts than in reference to any other aspect of the per se
doctrine." L. Sullivan, Law of Antitrust 229-230 (1977). Some care is
therefore necessary in defining the category of concerted refusals to deal
that mandate per se condemnation. See St. Paul Fire & Marine Ins.
Co. v. Barry, 438 U.S. 531, 543, 98 S.Ct. 2923, 2930, 57 L.Ed.2d 932
(1978) (concerted refusals to deal "are not a unitary
phenomenon"). Cf. Broadcast Music, Inc. v. Columbia Broadcasting
System, Inc., 441 U.S., at 9, 99 S.Ct., at 1557.
Cases to
which this Court has applied the per se approach have generally involved
joint efforts by a firm or firms to disadvantage competitors by
"either directly denying or persuading or coercing suppliers or
customers to deny relationships the competitors need in the competitive
struggle." Sullivan, supra, at 261-262. See, e.g., Silver,
supra (denial of necessary access to exchange members); Radiant
Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 81
S.Ct. 365, 5 L.Ed.2d 358 (1961) (denial of necessary certification of
product); Associated Press v. United States, 326 U.S. 1, 65 S.Ct.
1416, 89 L.Ed. 2013 (1945) (denial of important sources of news); Klor's,
Inc., supra (denial of wholesale supplies). In these cases, the
boycott often cut off access to a supply, facility, or market necessary to
enable the boycotted firm to compete, Silver, supra; Radiant
Burners, Inc., supra, and frequently the boycotting firms possessed a
dominant position in the relevant market. E.g., Silver, supra; Associated
Press, supra; Fashion Originators' Guild of America, Inc. v. FTC, 312
U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). See generally Brodley,
Joint Ventures and Antitrust Policy, 95 Harv.L.Rev. 1523, 1533, 1563-1565
(1982). In addition, the practices were generally not justified by
plausible arguments that they were intended to enhance overall efficiency
and make markets more competitive. Under such circumstances the likelihood
of anticompetitive effects is clear and the possibility of countervailing
procompetitive effects is remote.
Although a
concerted refusal to deal need not necessarily possess all of these traits
to merit per se treatment, not every cooperative activity involving a
restraint or exclusion will share with the per se forbidden boycotts the
likelihood of predominantly anticompetitive consequences. For example, we
recognized last Term in National Collegiate Athletic Assn. v. Board of
Regents of University of Oklahoma that per se treatment of the NCAA's
restrictions on the marketing of televised college football was
inappropriate -- despite the obvious restraint on output -- because the
"case involves an industry in which horizontal restraints on
competition are essential if the product is to be available at all."
468 U.S., at 101, 104 S.Ct., at 2960.
Wholesale
purchasing cooperatives such as Northwest are not a form of concerted
activity characteristically likely to result in predominantly
anticompetitive effects. Rather, such cooperative arrangements would seem
to be "designed to increase economic efficiency and render markets
more, rather than less, competitive." Broadcast Music, Inc. v.
Columbia Broadcasting System, Inc., supra, 441 U.S., at 20, 99 S.Ct.,
at 1562. The arrangement permits the participating retailers to achieve
economies of scale in both the purchase and warehousing of wholesale
supplies, and also ensures ready access to a stock of goods that might
otherwise be unavailable on short notice. The cost savings and
order-filling guarantees enable smaller retailers to reduce prices and
maintain their retail stock so as to compete more effectively with larger
retailers.
Pacific, of
course, does not object to the existence of the cooperative arrangement,
but rather raises an antitrust challenge to Northwest's decision to bar
Pacific from continued membership. [FN6] It is therefore the action of
expulsion that must be evaluated to determine whether per se treatment is
appropriate. The act of expulsion from a wholesale cooperative does not
necessarily imply anticompetitive animus and thereby raise a probability
of anticompetitive effect. See Broadcast Music, Inc. v. Columbia
Broadcasting System, Inc., supra, at 9, 99 S.Ct., at 1557. Wholesale
purchasing cooperatives must establish and enforce reasonable rules in
order to function effectively. Disclosure rules, such as the one on which
Northwest relies, may well provide the cooperative with a needed means for
monitoring the creditworthiness of its members. [FN7] Nor would the
expulsion characteristically be likely to result in predominantly
anticompetitive effects, at least in the type of situation this case
presents. Unless the cooperative possesses market power or exclusive
access to an element essential to effective competition, the conclusion
that expulsion is virtually always likely to have an anticompetitive
effect is not warranted. See L. Sullivan, Law of Antitrust 292-293
(1977); Brodley, 95 Harv.L.Rev., at 1563-1565. Cf. Jefferson Parish
Hospital Dist. v. Hyde, 466 U.S. 2, 12- 15, 104 S.Ct. 1551, 1558-1560,
80 L.Ed.2d 2 (1984) (absent indication of market power, tying arrangement
does not warrant per se invalidation). See generally National
Collegiate Athletic Assn. v. Board of Regents of University of Oklahoma,
468 U.S., at 104, n. 26, 104 S.Ct., at 2961, n. 26 ("Per se rules may
require considerable inquiry into market conditions before the evidence
justifies a presumption of anticompetitive conduct"). Absent such a
showing with respect to a cooperative buying arrangement, courts should
apply a rule-of-reason analysis. At no time has Pacific made a threshold
showing that these structural characteristics are present in this case. See
Complaint, App. 2; Motion for Partial Summary Judgment, App. 9. [FN8]
FN6.
Because Pacific has not been wholly excluded from access to Northwest's
wholesale operations, there is perhaps some question whether the
challenged activity is properly characterized as a concerted refusal to
deal. To be precise, Northwest's activity is a concerted refusal to deal
with Pacific on substantially equal terms. Such activity might justify per
se invalidation if it placed a competing firm at a severe competitive
disadvantage. See generally Brodley, Joint Ventures and Antitrust
Policy, 95 Harv.L.Rev. 1521, 1532 (1982) ("Even if the joint venture
does deal with outside firms, it may place them at a severe competitive
disadvantage by treating them less favorably than it treats the
[participants in the joint venture]").
FN7.
Pacific argues, however, that this justification for expulsion was a
pretext because the members of Northwest were fully aware of the change in
ownership despite lack of formal notice. According to Pacific, Northwest's
motive in the expulsion was to place Pacific at a competitive disadvantage
to retaliate for Pacific's decision to engage in an independent wholesale
operation. Such a motive might be more troubling. If Northwest's action
were not substantially related to the efficiency- enhancing or
procompetitive purposes that otherwise justify the cooperative's
practices, an inference of anticompetitive animus might be appropriate.
But such an argument is appropriately evaluated under the rule-of-reason
analysis.
FN8. Given
the state of this record it is difficult to understand how the Court of
Appeals could have concluded that Pacific "loses the ability to use
Northwest's superior warehousing and expedited order-filling facilities,
as well as any competitive advantages that may flow simply from being
known in the industry as a member of an established cooperative." 715
F.2d 1393, 1395 (1983). The District Court had specifically found no
anticompetitive effect.
The
District Court appears to have followed the correct path of analysis--
recognizing that not all concerted refusals to deal should be accorded per
se treatment and deciding this one should not. [FN9] The foregoing
discussion suggests, however, that a satisfactory threshold determination
whether anticompetitive effects would be likely might require a more
detailed factual picture of market structure than the District Court had
before it. Nonetheless, in our judgment the District Court's rejection of
per se analysis in this case was correct. A plaintiff seeking application
of the per se rule must present a threshold case that the challenged
activity falls into a category likely to have predominantly
anticompetitive effects. The mere allegation of a concerted refusal to
deal does not suffice because not all concerted refusals to deal are
predominantly anticompetitive. When the plaintiff challenges expulsion
from a joint buying cooperative, some showing must be made that the
cooperative possesses market power or unique access to a business element
necessary for effective competition. Focusing on the argument that the
lack of procedural safeguards required per se liability, Pacific did not
allege any such facts. Because the Court of Appeals applied an erroneous
per se analysis in this case, the court never evaluated the District
Court's rule-of-reason analysis rejecting Pacific's claim. A remand is
therefore appropriate for the limited purpose of permitting appellate
review of that determination.
FN9. The
District Court stated:
"I
think that in a case of this nature, in order to move an antitrust
violation, it is necessary to show some restraint of competition, and I
don't believe that is shown here. Even if it is a group boycott, I still
believe under [Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke &
Liquors, Ltd., 416 F.2d 71 (CA9 1969) and Ron Tonkin Gran Turismo,
Inc. v. Fiat Distributors, Inc., 637 F.2d 1376 (CA9 1981) ], that the
Rule of Reason operates. And I think if you apply the Rule of Reason to
the facts that are submitted by the parties here that are not disputed in
this case, you come to the conclusion that there is [sic] simply been no
showing by the Plaintiff in this case of a restraint of competition as
distinguished from possible damage to the Plaintiff by being expelled from
the association." App. to Pet. for Cert. 23-24.
III.
"The
per se rule is a valid and useful tool of antitrust policy and
enforcement." Broadcast Music, Inc. v. Columbia Broadcasting
System, Inc., 441 U.S., at 8, 99 S.Ct., at 1556. It does not denigrate
the per se approach to suggest care in application. In this case, the
Court of Appeals failed to exercise the requisite care and applied per se
analysis inappropriately. The judgment of the Court of Appeals is
therefore reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so
ordered.
Justice
MARSHALL and Justice POWELL took no part in the decision of this case.
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