On June 28, 2016, in Visa Inc. v. Osborn, the U.S. Supreme Court agreed to review a 2015 decision by the U.S. Court of Appeals for the D.C. Circuit that held that members of a business association could potentially be subject to antitrust liability under Section 1 of the Sherman Act (Section 1), merely based on their participation in the governance of the association and their agreements to adhere to its rules. The Court’s decision will resolve a circuit split between the D.C. Circuit and the Third, Fourth, and Ninth Circuits, all three of which have held that such an allegation by itself would be insufficient to plead a Section 1 conspiracy. The Supreme Court’s decision hopefully will eliminate a substantial source of uncertainty regarding the ability of thousands of associations to adopt efficient generally applicable membership rules, free from the threat of costly antitrust liability.

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