California Ex Rel. Harris v. Safeway, Inc. ( 2011 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    STATE OF CALIFORNIA, ex rel.                
    Kamala D. Harris,*
    Plaintiff-Appellant,
    v.
    SAFEWAY, INC., a Safeway                             No. 08-55671
    Company doing business as Vons;
    ALBERTSONS, INC.; RALPHS GROCERY                      D.C. No.
    2:04-cv-00687-
    COMPANY, a division of the Kroger
    Company; FOOD 4 LESS FOOD                               AG-SS
    COMPANY, a division of the Kroger
    Company; VONS COMPANIES INC.,
    an indirect, wholly owned
    subsidiary of Safeway, Inc.,
    Defendants-Appellees.
    
    *Kamala D. Harris is substituted for her predecessor, Edmund G.
    Brown, as Attorney General of the State of California, pursuant to Federal
    Rule of Appellate Procedure 43(c)(2).
    9279
    9280              CALIFORNIA v. SAFEWAY, INC.
    STATE OF CALIFORNIA, ex rel.            
    Kamala D. Harris,
    Plaintiff-Appellee,
    v.
    SAFEWAY INC. a Safeway Company               No. 08-55708
    doing business as Vons;                        D.C. No.
    ALBERTSONS, INC.; RALPHS GROCERY           2:04-cv-00687-
    COMPANY, a division of the Kroger               AG-SS
    Company; FOOD 4 LESS FOOD
    OPINION
    COMPANY, a division of the Kroger
    Company; VONS COMPANIES INC.
    an indirect, wholly owned
    subsidiary of Safeway, Inc.
    Defendants-Appellants.
    
    Appeal from the United States District Court
    for the Central District of California
    Andrew J. Guilford, District Judge, Presiding
    Argued and Submitted
    March 22, 2011—San Francisco, California
    Filed July 12, 2011
    Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
    Stephen Reinhardt, Susan P. Graber, M. Margaret McKeown,
    Raymond C. Fisher, Ronald M. Gould, Richard C. Tallman,
    Johnnie B. Rawlinson, Richard R. Clifton, and
    N. Randy Smith, Circuit Judges.
    Opinion by Judge Gould;
    Concurrence by Judge Fisher;
    Partial Dissent by Chief Judge Kozinski;
    Partial Concurrence and Partial Dissent by Judge Reinhardt
    9284             CALIFORNIA v. SAFEWAY, INC.
    COUNSEL
    Kamala D. Harris, Attorney General for the State of Califor-
    nia; Kathleen E. Foote, Senior Assistant Attorney General;
    Barbara M. Motz, Supervising Deputy Attorney General;
    Patricia L. Nagler, Deputy Attorney General; Cheryl L. John-
    son, Deputy Attorney General; and Jonathan M. Eisenberg
    (argued), Deputy Attorney General, Los Angeles, California,
    for the plaintiff-appellant/cross-appellee.
    Alan B. Clark, Peter K. Huston, Latham & Watkins LLP, Los
    Angeles, California, and Jeremy P. Sherman, Seyfarth Shaw
    LLP, Chicago, Illinois, for respondents-appellees/cross-
    appellants Safeway, Inc. and The Vons Companies, Inc.
    CALIFORNIA v. SAFEWAY, INC.            9285
    Jeffrey A. LeVee, Craig E. Stewart (argued), and Kate P.
    Wallace, Jones Day, Los Angeles, California, for respondent-
    appellee/cross-appellant Albertson’s, Inc.
    Robert B. Pringle, Winston & Strawn, San Francisco, Califor-
    nia, for respondents-appellees/cross-appellants Ralphs Gro-
    cery Company and Food 4 Less Company.
    Robin S. Conrad, Shane B. Kawka, Washington, District of
    Columbia, for amicus curiae Chamber of Commerce of the
    United States.
    Charles I. Cohen, Jonathan C. Fritts and David R. Broderdorf,
    Washington, District of Columbia, for amici curiae Chamber
    of Commerce of the United States and Council on Labor Law
    Equality.
    Jeffrey A. Berman, Los Angeles, California, for amicus curiae
    Employers Group.
    Robert M. McKenna, Attorney General of Washington and
    Mark O. Brevard, Assistant Attorney General, Seattle, Wash-
    ington; and Nancy H. Rogers, Attorney General of Ohio and
    Jennifer L. Pratt, Chief, Antitrust Section, Columbus,
    Ohio, for amici curiae Arizona, Connecticut, Delaware,
    Maryland, Massachusetts, Mississippi, Missouri, Montana,
    Nevada, Ohio, Oklahoma, Oregon, Tennessee, Washington,
    and West Virginia.
    Nicholas W. Clark, Washington, District of Columbia, for
    amicus curiae United Food and Commercial Workers Interna-
    tional Union.
    Michael D. Four, Los Angeles, California, for amici curiae
    UFCW Local Unions 135, 324, 770, 1036, 1167, 1428, and
    1442.
    Andrew D. Roth, Washington, District of Columbia, for amici
    curiae United Food and Commercial Workers International
    9286                 CALIFORNIA v. SAFEWAY, INC.
    Union, UFCW Local Unions 135, 324, 770, 1036, 1167,
    1428, and 1442, Change to Win, and AFL-CIO.
    Richard M. Brunell, Washington, District of Columbia, for
    amicus curiae American Antitrust Institute.
    OPINION
    GOULD, Circuit Judge:
    We must decide whether an agreement among competitors
    to share revenues during the term of a labor dispute is exempt
    from the antitrust laws under the non-statutory labor exemp-
    tion, and if not, whether the agreement should be condemned
    as a per se violation of the antitrust laws or on a truncated
    “quick look,” or whether more detailed scrutiny is required.
    We conclude that the agreement is not immune from the anti-
    trust laws, but that summary condemnation, whether as a per
    se violation or on a “quick look,” is improper. We affirm the
    district court.
    I.       Factual and Procedural History
    In the fall of 2003, the collective-bargaining agreement
    between several local chapters of the United Food and Com-
    mercial Workers (“UFCW”) and three large supermarket
    chains operating in Southern California (Albertson’s, Ralphs,
    and Vons, a subsidiary of Safeway, Inc.) was set to expire.
    Another grocery chain, Food 4 Less,1 had a separate contract
    with UFCW that was set to expire several months later, in
    February 2004. Before the contracts expired and with the con-
    sent of the union, Albertson’s, Ralphs, and Vons formed a
    multi-employer bargaining unit in the summer of 2003 for
    negotiation of a successor labor contract.
    1
    Food 4 Less is an unincorporated operating division of Ralphs; it is a
    fictitious name under which Ralphs does business in Southern California.
    CALIFORNIA v. SAFEWAY, INC.                     9287
    Albertson’s, Ralphs, Vons, and Food 4 Less (“Defendants”
    or “grocers”) entered into a Mutual Strike Assistance Agree-
    ment2 (“MSAA”) in September 2003, in anticipation of the
    potential use of “whipsaw” tactics, where unions exert pres-
    sure on one employer within a multi-employer bargaining unit
    through, for example, selective strikes or picketing. Among
    other things, the MSAA provided that if one party to the
    agreement was struck by the union, the other grocers (with the
    exception of Food 4 Less) would lock out all their union
    employees within 48 hours.
    Pertinent to the antitrust claims that we assess, the MSAA
    also included a revenue-sharing provision (“RSP”), providing
    that in the event of a strike/lockout, any grocer that earned
    revenues above its historical share relative to the other chains
    during the strike period would pay 15% of those excess reve-
    nues as reimbursement to the other grocers to restore their
    pre-strike shares.3 The MSAA specified that the strike/lockout
    period would begin at the start of the week in which the
    strike/lockout commenced and continue for two weeks fol-
    lowing the end of the strike/lockout.4 According to a responsi-
    ble grocer executive, the 15% figure was designed to estimate
    2
    There were in fact two agreements with identical terms, one pertaining
    to UFCW Local No. 770 and the other to UFCW Locals No. 135, 324,
    1036, 1167, 1428, and 1442. We will refer to them as one agreement for
    simplicity.
    3
    To implement this arrangement, the grocers agreed to submit their
    weekly sales data for an eight-week period before the strike and for the
    strike period to a certified public accountant. The CPA would use the data
    to determine the grocers’ historical percentage shares of the market (rela-
    tive to one another) prior to the strike, and to calculate the aggregate
    increase or decrease in each grocer’s average weekly sales during the
    strike. The CPA would then multiply the total amount of disparity for each
    grocer by 15% and those grocers earning revenues above their historical
    share would pay that amount in compensation to the lower performing
    grocer to return all grocers to their relative pre-strike positions. Food 4
    Less and Ralphs were treated as one unit for purposes of this calculation.
    4
    The parties refer to this as the “two-week tail.”
    9288                CALIFORNIA v. SAFEWAY, INC.
    the incremental profit the grocers earned on each additional
    dollar of revenue.
    On October 11, 2003, after union contract negotiations
    broke down, the unions began a strike against Vons stores in
    the region. Albertson’s and Ralphs locked out their union
    employees the next day pursuant to the terms of the MSAA.
    The unions at first picketed Albertson’s, Ralphs, and Vons
    stores, but soon elected to pull their pickets from Ralphs
    stores and focus their picketing efforts on Albertson’s and
    Vons only. About four-and-a-half months after the strike
    began, at the end of February 2004, the grocers and the unions
    reached an agreement and the strike/lockout ended. In accord
    with the revenue-sharing provision of the MSAA, Ralphs paid
    about $83.5 million to Vons, and it paid about $62.5 million
    to Albertson’s.
    While the strike was in progress, the State of California
    brought an action against the grocers alleging that the RSP
    violated Section 1 of the Sherman Act, which prohibits any
    contract, combination, or conspiracy in restraint of trade or com-
    merce.5 
    15 U.S.C. § 1
    . After limited discovery, the grocers
    moved for summary judgment on the ground that the RSP was
    immune from antitrust scrutiny under the non-statutory labor
    exemption. The district court denied the motion, holding that
    the exemption was inapplicable. California then moved for
    summary judgment, contending that the RSP was a per se vio-
    lation of § 1, or in the alternative that it was unlawful under
    an abbreviated rule of reason or “quick look” antitrust analy-
    sis. The district court denied that motion as well. The grocers
    renewed their motion for summary judgment on the non-
    statutory labor exemption, and the district court again denied
    their motion.
    While preserving their right to appeal the district court’s
    rulings, the parties stipulated to the entry of final judgment for
    5
    California sought a permanent injunction and attorneys’ fees.
    CALIFORNIA v. SAFEWAY, INC.              9289
    the grocers after California agreed not to pursue the theory
    that the RSP violated § 1 of the Sherman Act under a full rule
    of reason analysis, and the grocers agreed not to pursue the
    various affirmative defenses they had pleaded, with the
    exception of the non-statutory labor exemption. The district
    court entered judgment in accordance with the parties’ stipu-
    lations.
    California timely appealed the final judgment, arguing that
    the RSP should be condemned as a per se violation or on a
    “quick look,” and the grocers timely cross-appealed, arguing
    that the non-statutory labor exemption should apply. We
    issued an opinion affirming in part, reversing in part, and
    remanding. California ex rel. Brown v. Safeway, Inc., 
    615 F.3d 1171
     (9th Cir. 2010). A majority of non-recused active
    judges voted to rehear this case en banc pursuant to Circuit
    Rule 35-3. California ex rel. Brown v. Safeway, Inc., 
    633 F.3d 1210
     (9th Cir. 2011).
    II.    Jurisdiction and Standard of Review
    We have jurisdiction under 
    28 U.S.C. § 1291
    . We review
    de novo a district court’s denial of summary judgment on the
    basis of the non-statutory labor exemption. Clarett v. Nat’l
    Football League, 
    369 F.3d 124
    , 130 (2d Cir. 2004). The
    selection of the proper mode of antitrust analysis is a question
    of law, which we review de novo. United States v. Brown,
    
    936 F.2d 1042
    , 1045 (9th Cir. 1991); see also Craftsmen Lim-
    ousine, Inc. v. Ford Motor Co., 
    363 F.3d 761
    , 772 (8th Cir.
    2004); XI Phillip Areeda & Herbert Hovenkamp, Antitrust
    Law ¶ 1909b, at 279 (2d ed. 2005) (hereinafter Areeda &
    Hovenkamp).
    III.   Non-Statutory Labor Exemption
    On cross-appeal, the grocers contend that the district court
    erred in holding that the RSP is not immune from the Sher-
    man Act under the non-statutory labor exemption, and they
    9290              CALIFORNIA v. SAFEWAY, INC.
    urge that summary judgment should have been entered in
    their favor on the basis of the exemption.
    A.   Background
    Court have recognized both “statutory” and “non-statutory”
    labor exemptions to the antitrust laws. Phoenix Elec. Co. v.
    Nat’l Electric Contractors Ass’n, 
    81 F.3d 858
    , 860 (9th Cir.
    1996). The statutory exemption, which is not invoked here,
    establishes that labor unions are not combinations or conspira-
    cies in restraint of trade and exempts certain union activities
    from scrutiny under the antitrust laws. Connell Constr. Co. v.
    Plumbers & Steamfitters Local Union No. 100, 
    421 U.S. 616
    ,
    621-22 (1975). However, the statutory exemption does “not
    exempt concerted action or agreements between unions and
    nonlabor parties.” 
    Id. at 622
    .
    [1] The non-statutory labor exemption, invoked by the gro-
    cers as a defense in this case, has been inferred from federal
    labor statutes. These “set forth a national labor policy favor-
    ing free and private collective bargaining,” “require good-
    faith bargaining over wages, hours, and working conditions,”
    and “delegate related rulemaking and interpretive authority to
    the National Labor Relations Board.” Brown v. Pro Football,
    Inc., 
    518 U.S. 231
    , 236 (1996). The implicit exemption “inter-
    prets the labor statutes . . . as limiting an antitrust court’s
    authority to determine, in the area of industrial conflict, what
    is or is not a ‘reasonable’ practice” and “substitutes legislative
    and administrative labor-related determinations for judicial
    antitrust-related determinations” in that area. 
    Id. at 236-37
    .
    “[S]ome restraints on competition imposed through the bar-
    gaining process must be shielded from antitrust sanctions” to
    give effect to federal labor policy and to allow meaningful
    collective bargaining to occur. 
    Id. at 237
    .
    “The Supreme Court has never delineated the precise
    boundaries of the [non-statutory labor] exemption, and what
    guidance it has given as to its application has come mostly in
    CALIFORNIA v. SAFEWAY, INC.                9291
    cases in which agreements between an employer and a labor
    union were alleged to have injured or eliminated a competitor
    in the employer’s business or product market.” Clarett, 
    369 F.3d at 131
    . The Court first elaborated on the reach of the
    non-statutory labor exemption in Allen Bradley Co. v. Local
    Union No. 3, International Brotherhood of Electrical Work-
    ers, involving a series of agreements between an electrical
    workers union and several manufacturers and contractors in
    which the manufacturers and contractors agreed to do busi-
    ness exclusively with other companies that employed union
    workers. 
    325 U.S. 797
     (1945). Those agreements were part of
    “a far larger program . . . to monopolize all the business in
    New York City, to bar all other business men from that area,
    and to charge the public prices above a competitive level” and
    created a “situation . . . not included within the [relevant]
    exemptions.” 
    Id. at 809
    . The Court explained that Congress
    did not intend to bestow on unions “complete and unreview-
    able authority to aid business groups to frustrate [antitrust leg-
    islation’s] primary objective.” 
    Id. at 810
    .
    [2] In United Mine Workers of America v. Pennington, the
    Supreme Court similarly declined to apply the exemption to
    insulate a wage agreement between a union of mine workers
    and large coal companies. 
    381 U.S. 657
     (1965). The union
    and the large companies, to eliminate smaller coal companies
    and permit the larger companies to control the market, agreed
    to a series of terms, including increased wages for union
    workers. 
    Id. at 660
    . A smaller coal mine operator, unable to
    pay the increased wages demanded by the union under the
    terms of their agreement with the larger companies, filed suit
    claiming that the agreement violated the Sherman Act. 
    Id. at 659
    . In exploring the boundaries of the exemption, the Court
    observed that, had the union and employers entered into an
    agreement in which they collectively set prices for coal, they
    could not defend that agreement from antitrust attack, because
    “the restraint on the product market is direct and immediate,
    is of the type characteristically deemed unreasonable under
    the Sherman Act and the union gets from the promise nothing
    9292              CALIFORNIA v. SAFEWAY, INC.
    more concrete than a hope for better wages to come.” 
    Id. at 663
    . The Court rejected the argument that, simply because the
    agreement related to wages—a subject at the heart of
    bargaining—rather than prices, the exemption should apply.
    
    Id. at 664-69
    . Though “a union may conclude a wage agree-
    ment with the multi-employer bargaining unit without violat-
    ing the antitrust laws,” the Court explained, “there are limits
    to what a union or an employer may offer or extract in the
    name of wages.” 
    Id. at 664-65
    . “[A] union forfeits its exemp-
    tion from the antitrust laws when it is clearly shown that it has
    agreed with one set of employers to impose a certain wage
    scale on other bargaining units.” 
    Id. at 665
     (emphasis added).
    The Court held that the wage agreement was not exempt from
    the antitrust laws. 
    Id. at 669
    .
    The exemption was applied in a fractured decision in Local
    Union No. 189, Amalgamated Meat Cutters & Butcher Work-
    men of North America v. Jewel Tea Co., 
    381 U.S. 676
     (1965),
    which the Supreme Court issued together with its opinion in
    Pennington. The union representing butchers in Chicago
    reached a collective-bargaining agreement with a multi-
    employer bargaining unit of food retailers that included a
    marketing hours restriction, which prohibited the sale of meat
    before 9:00 a.m. and after 6:00 p.m., and on Sundays. 
    Id. at 679-80
    . One member of the bargaining unit, Jewel Tea, ini-
    tially rejected the provision limiting hours, but eventually
    decided to sign a contract including such a provision under
    threat of a strike. 
    Id. at 680-81
    . Jewel Tea brought suit against
    the union, claiming that the marketing hours restriction in the
    contract violated the Sherman Act as it was the product of a
    conspiracy to prevent the retail sale of fresh meat during the
    evening hours. 
    Id. at 681-82
    . The plurality opinion explained
    that “the marketing-hours restriction, like wages, and unlike
    prices, is so intimately related to wages, hours and working
    conditions that the unions’ successful attempt to obtain that
    provision . . . falls within the protection of the national labor
    policy and is therefore exempt from the Sherman Act.” 
    Id. at 689-90
    . Three other justices, concurring in the judgment (but
    CALIFORNIA v. SAFEWAY, INC.               9293
    dissenting in Pennington) viewed the exemption more
    broadly, and would have held that all “collective bargaining
    activity concerning mandatory subjects of bargaining under
    the Labor Act is not subject to the antitrust laws.” 
    Id. at 710
    (Goldberg, J., concurring).
    The Court declined to apply the non-statutory exemption to
    a labor-employer agreement in Connell Construction Co., 
    421 U.S. at 621
    . A union representing workers in the plumbing
    and mechanical trades in Dallas entered into a multi-employer
    bargaining agreement with a large group of mechanical con-
    tractors. 
    Id. at 619
    . The union asked Connell Construction—
    a general building contractor that was outside the bargaining
    agreement and whose workers were not represented by the
    union—to agree to subcontract mechanical work only to firms
    that had a contract with the union. 
    Id.
     Connell initially refused
    to sign the agreement but acquiesced when the unions pick-
    eted one of its construction sites. 
    Id. at 620
    . The Court recog-
    nized the importance of the non-statutory exemption for labor
    policy, but cautioned that “while the statutory exemption
    allows unions to accomplish some restraints by acting unilat-
    erally, the nonstatutory exemption offers no similar protection
    when a union and a nonlabor party agree to restrain competi-
    tion in a business market.” 
    Id. at 622-23
     (citation omitted).
    The exemption did not shield the agreement from the antitrust
    laws because such a “direct restraint on the business market
    has substantial anticompetitive effects, both actual and poten-
    tial, that would not follow naturally from the elimination of
    competition over wages and working conditions.” 
    Id. at 625
    .
    Most recently, in Brown v. Pro Football, Inc., the Supreme
    Court for the first time extended the non-statutory labor
    exemption to an agreement that was solely among employers.
    
    518 U.S. at 238
    ; see also IB Areeda & Hovenkamp ¶ 257b2,
    at 141 (3d ed. 2006) (explaining that “historically the courts
    were reluctant to extend the exemption . . . to an agreement
    among employers that did not involve any employee group as
    9294              CALIFORNIA v. SAFEWAY, INC.
    a participant” but that the Supreme Court did extend the
    exemption to that situation in Brown); id. at 151-52.
    Brown involved an agreement among National Football
    League teams to restrain the salaries of certain classes of play-
    ers. Brown, 
    518 U.S. at 234-35
    . The collective-bargaining
    agreement between the players’ union and the league expired,
    and bargaining began for a new contract. 
    Id. at 234
    . During
    the negotiations, the NFL adopted a plan that would permit
    each team to create a developmental squad of rookies who
    would play in practice games with the team and sometimes in
    regular games as substitutes for injured players, and provided
    that the developmental squad players would be paid $1000
    per week. 
    Id.
     The players’ union disagreed with these terms
    and insisted that developmental squad players get benefits and
    protections similar to those offered to regular players and that
    they be free to negotiate their own salaries rather than be paid
    the fixed rate. 
    Id.
     Two months later, bargaining reached an
    impasse, and the NFL unilaterally implemented the develop-
    mental squad program under its proposed terms. 
    Id. at 235
    .
    The developmental squad players brought an antitrust action
    against the league and the individual teams, claiming that the
    agreement to pay them $1000 per week violated the Sherman
    Act. 
    Id.
    The Court began by examining the “history and logic” of
    the exemption, observing that it “interprets the labor statutes
    in accordance with” the intent of Congress to prevent “judi-
    cial use of antitrust law to resolve labor disputes” and limits
    antitrust courts’ authority to determine what qualifies as a rea-
    sonable practice in industrial conflict. 
    Id. at 236-37
    . With cita-
    tion to the leading cases Connell, Jewel Tea, and Pennington,
    the Court explained that the exemption is essential to give
    effect to federal labor policy and allow meaningful collective
    bargaining because “it would be difficult, if not impossible, to
    require groups of employers and employees to bargain
    together, but at the same time to forbid them to make among
    themselves or with each other any of the competition-
    CALIFORNIA v. SAFEWAY, INC.              9295
    restricting agreements potentially necessary to make the pro-
    cess work.” 
    Id. at 237
    .
    The Court then identified the question presented as one of
    scope: whether the exemption applies to an agreement among
    several employers bargaining together to implement after
    impasse the terms of their last best good-faith wage offer. 
    Id. at 238
    . The Court recognized at the outset that labor law “reg-
    ulates directly, and considerably, the kind of behavior here at
    issue—the postimpasse imposition of a proposed employment
    term concerning a mandatory subject of bargaining.” 
    Id.
    Labor regulations “reflect the fact that impasse and an accom-
    panying implementation of proposals constitute an integral
    part of the bargaining process,” and case law demonstrates
    that implementation of terms after impasse is a familiar prac-
    tice in multi-employer bargaining. 
    Id. at 239-40
    . Under these
    circumstances, “to subject the practice to antitrust law is to
    require antitrust courts to answer a host of important practical
    questions about how collective bargaining over wages, hours,
    and working conditions is to proceed—the very result that the
    implicit labor exemption seeks to avoid.” 
    Id. at 240-41
    .
    The Court addressed and rejected several proposed limita-
    tions or boundaries to the exemption that were suggested by
    the parties and amici. 
    Id. at 243-50
    . The Court first rejected
    the argument that the exemption should be limited to existing
    labor-management agreements. 
    Id. at 243-44
    . The Court
    emphasized that, for the immunity to be effective, it must
    apply not just to the completed bargain but also to the process
    by which the bargain is made, including the process before an
    initial collective-bargaining agreement is approved and the
    period after the agreement has expired. Id.; see also IB
    Areeda & Hovenkamp ¶ 257b2. The Court rejected the sug-
    gestion that the exemption should terminate when collective-
    bargaining negotiations reach impasse or a reasonable time
    thereafter and another suggestion that the exemption permit
    employers to make post-impasse agreements about bargaining
    tactics but not the terms of any policy directed at employees.
    9296              CALIFORNIA v. SAFEWAY, INC.
    Brown, 
    518 U.S. at 244-48
    . The Court also declined to hold
    that the arena of professional sports is “special” and should be
    viewed differently than other industries with respect to the
    antitrust exemption. 
    Id. at 248-49
    .
    The Court described its decision to apply the exemption to
    the football teams’ conduct in this way:
    That conduct took place during and immediately
    after a collective- bargaining negotiation. It grew out
    of, and was directly related to, the lawful operation
    of the bargaining process. It involved a matter that
    the parties were required to negotiate collectively.
    And it concerned only the parties to the collective-
    bargaining relationship.
    
    Id. at 250
    . The Court then clarified that its “holding is not
    intended to insulate from antitrust review every joint imposi-
    tion of terms by employers, for an agreement among employ-
    ers could be sufficiently distant in time and in circumstances
    from the collective-bargaining process that a rule permitting
    antitrust intervention would not significantly interfere with
    that process.” 
    Id.
    B.   Positions of the Parties
    The grocers contend that Brown immunizes employer
    agreements related in time and circumstance to the collective-
    bargaining process, and that the economic weapons parties
    use to advance their positions in a labor dispute—like an
    agreement to share revenue to weaken the effects of a whip-
    saw strike—are “as much a part of the collective bargaining
    process as are negotiations over terms.” The grocers stress
    that labor policy approves the use of economic weapons, and
    that economic weapons are “part and parcel” of the collective-
    bargaining process that should be exercised free from govern-
    mental regulation. NLRB v. Ins. Agents’ Int’l Union, 
    361 U.S. 477
    , 489 (1960).
    CALIFORNIA v. SAFEWAY, INC.               9297
    By contrast, California urges a narrower reading of Brown,
    one that would permit an exemption for agreements among
    employers only where “needed to make the collective bar-
    gaining process work,” relying on the Court’s words in
    Brown. California contends that Brown imposes a multi-factor
    analysis that takes into account whether the alleged anticom-
    petitive conduct is anchored in the collective-bargaining pro-
    cess, concerns only the parties to the collective-bargaining
    process, and relates to wages, hours, and conditions of
    employment or other mandatory subjects of collective bar-
    gaining. In California’s view, the RSP was not necessary to
    allow meaningful collective bargaining to take place and col-
    lective bargaining should not be defined so broadly as to
    include financial weapons like the RSP. The RSP helped the
    employers to gain advantage in negotiations, but was not inte-
    gral to the bargaining process. Further, California argues, the
    RSP does not relate to the core subjects of collective bargain-
    ing (wages, hours, and working conditions) and primarily
    affects a “product market” not a “labor market.” California
    also notes, as did the district court, that the RSP included an
    entity that was not a party to the collective-bargaining agree-
    ment (Food 4 Less), and that the RSP remained in effect for
    two weeks after bargaining ended.
    C.   Exemption Inapplicable
    We reject the grocers’ broad reading of the exemption and
    hold that, under the totality of circumstances here, and in light
    of the history and logic of the exemption as well as the
    Supreme Court’s guidance in Brown, application of the
    exemption to shield the RSP from antitrust scrutiny is not
    warranted.
    [3] The Court in Brown stated, as a premise of its reason-
    ing, that the practice under examination—the unilateral impo-
    sition of terms by employers after impasse—was
    “unobjectionable as a matter of labor law and policy” and that
    it was regulated “directly, and considerably,” by labor laws.
    9298                 CALIFORNIA v. SAFEWAY, INC.
    Brown, 
    518 U.S. at 238
    . In other words, post-impasse imposi-
    tion of terms is not only an accepted practice in labor negotia-
    tion, but one that has been extensively regulated and
    “carefully circumscribed.” 
    Id.
     By contrast, the use of revenue
    sharing as an economic weapon during a labor dispute does
    not enjoy any such endorsement, much less a history of care-
    ful regulation, from the realm of labor law and policy. Neither
    party points to a body of regulatory or judicial decisions that
    establishes revenue sharing among employers in a bargaining
    unit as an accepted economic weapon during a labor dispute.6
    From the outset of our analysis, therefore, the RSP is on dif-
    ferent footing than the agreement between the NFL club own-
    ers in Brown.
    [4] Addressing the practice of revenue sharing in the con-
    text of multi-employer bargaining, we conclude that the
    salient concerns underlying Brown and central to the history
    and logic of the exemption are not present here. The agree-
    ment to share revenues during and shortly after a labor dispute
    does not play a significant role in collective bargaining, nor
    is it necessary to permit meaningful collective bargaining to
    take place. The RSP does not relate to any core subject matter
    of bargaining, namely wages, hours, and working conditions,
    6
    The grocers rely on a decision from the Denver region of the NLRB,
    suggesting that a similar revenue sharing provision was a permissible
    practice, see Supp. Excerpts of Record (Vol. 3) 429-32, and on two courts
    of appeals decisions, Air Line Pilots Ass’n International v. Civil Aeronau-
    tics Board, 
    502 F.2d 453
    , 456-57 (D.C. Cir. 1974) (holding that revenue
    sharing among airline employers did not violate the Railway Labor Act)
    and Kennedy v. Long Island Rail Road Co., 
    319 F.2d 366
    , 368 (2d Cir.
    1963) (holding that a joint strike insurance plan among leading railroads
    did not violate the Railway Labor Act, the Interstate Commerce Act, or the
    Sherman Act), for the proposition that revenue sharing is an accepted eco-
    nomic weapon. But a decision of a regional NLRB tribunal and the two
    appellate cases implicating, respectively, a different statutory regime and
    a different type of arrangement, are not sufficiently prevalent authority to
    demonstrate the acceptability of the practice. To the contrary, these few
    cases show that revenue sharing in this context is sufficiently rare that it
    has not been widely examined by agencies and courts as a labor practice.
    CALIFORNIA v. SAFEWAY, INC.               9299
    but rather relates principally to the relative revenues of the
    grocers in the market and the temporary, artificial mainte-
    nance of those revenues.
    Although it is not an easy question, in our view the grocers
    cannot succeed in exempting their agreement merely by
    asserting its value to them and purpose as an economic
    weapon in the labor dispute over core bargaining subjects. If
    this were so, a group of employers could claim that fixing
    prices made them stronger and was useful as an economic
    weapon in a strike. Quite obviously, that could not be suffi-
    cient to gain exemption. It would be like saying “anything
    goes in a strike context,” and we cannot read Brown so
    broadly. The RSP was designed to strengthen the grocers’
    position in negotiations with the union, but that fact alone
    does not entitle the agreement to antitrust immunity. Employ-
    ers might undertake any number of activities to strengthen
    their bargaining posture and force unions to accept their
    terms, but the law does not necessarily exempt all such activi-
    ties.
    Our decision not to expand the law of non-statutory labor
    exemption to shield the grocers from antitrust liability in these
    circumstances does not place them in an untenable position or
    “introduce instability and uncertainty into the collective-
    bargaining process.” Brown, 
    518 U.S. at 242
    . The inability of
    grocers to enter into an RSP for fear of possible antitrust lia-
    bility does not hinder the functioning of the collective-
    bargaining process. Grocers may continue to negotiate terms
    with the union without an RSP in place and may bring other
    potent and well-established forms of economic pressure to
    bear to enhance their bargaining position, including lockouts
    and the use of replacement workers.
    [5] Further, the RSP concerned the “business” or “product”
    market, rather than the labor market. “The case for the appli-
    cability of the non-statutory exemption is strongest where the
    alleged restraint operates primarily in the labor market and
    9300                  CALIFORNIA v. SAFEWAY, INC.
    has only tangential effects on the business market.” Am. Steel
    Erectors, Inc. v. Local Union No. 7, Int’l Ass’n of Bridge,
    Structural, Ornamental & Reinforcing Iron Workers, 
    536 F.3d 68
    , 79 (1st Cir. 2008) (citing Clarett, 
    369 F.3d at
    134
    n.14). Stated another way, and relying on the insights of a per-
    ceptive antitrust law commentator, in general, “an agreement
    among employers restraining a product or nonlabor service
    market enjoys no labor immunity.”7 IB Areeda & Hovenkamp
    ¶ 257a, at 131; see also Barnett Pontiac-Datsun, Inc. v. FTC
    (In re Detroit Auto Dealers Ass’n), 
    955 F.2d 457
    , 468 (6th
    Cir. 1992). The RSP, although intended to strengthen the gro-
    cers’ position in bargaining for terms related to wages, hours,
    and working conditions, does not primarily affect the labor
    market. The fact that the grocers were sharing profits did not
    have direct consequences for the labor market. This aspect of
    the RSP lends further support to the view that application of
    the antitrust laws would not interfere with the bargaining pro-
    cess. While we stop short of endorsing the concept that as a
    strict rule the non-statutory labor exemption can only arise in
    a case involving restraint of terms directly relating to labor,
    7
    The grocers argue that the distinction between agreements affecting
    business or product markets and those affecting labor markets is no longer
    relevant to the non-statutory labor exemption analysis following Brown.
    The Court did not expressly address the significance of the distinction in
    deciding Brown. The D.C. Circuit below had held that the exemption
    waives antitrust liability for restraints on competition that “operate primar-
    ily in a labor market characterized by collective bargaining,” but the
    Supreme Court chose to interpret the exemption more narrowly. Brown,
    
    518 U.S. at 235
     (quoting Brown v. Pro Football, Inc., 
    50 F.3d 1041
    , 1056
    (D.C. Cir. 1995)). At no point did it explicitly reject the product mar-
    ket/labor market distinction or question its earlier cases that relied in part
    on the distinction. Id. at 236, 237 (citing Pennington, 
    381 U.S. at 657
    ).
    Brown suggests that the distinction may not be central to the analysis in
    all cases, but we conclude that it remains a relevant consideration in deter-
    mining whether a restraint “plays a significant role in a collective-
    bargaining process that itself constitutes an important part of the Nation’s
    industrial relations system.” Brown, 
    518 U.S. at 240
    . Other circuits are in
    accord. E.g., Am. Steel Erectors, 
    536 F.3d at 79
    ; Clarett, 
    369 F.3d at
    134
    n.14.
    CALIFORNIA v. SAFEWAY, INC.              9301
    that the restraint here is primarily a product market restraint
    does not encourage application of the non-statutory labor
    exemption.
    Finally, the inclusion of a non-member of the collective-
    bargaining unit, Food 4 Less, in the agreement to share reve-
    nue during the terms of the strike counsels against application
    of the exemption. The fact that the unilateral post-impasse
    imposition of terms in Brown “concerned only the parties to
    the collective-bargaining relationship” appears to have been a
    significant factor supporting the application of the exemption
    in that case. Brown, 
    518 U.S. at 250
    . This is logical in light
    of the purposes of the exemption: the inclusion of non-
    bargaining employers in an agreement suggests that the con-
    duct is not anchored in the collective-bargaining process and
    should instead be subject to scrutiny by antitrust laws
    designed to prevent unreasonable restraints. Here, the grocers
    offer us the explanation that, as an unincorporated division of
    Ralphs that was doing business under another name, Food 4
    Less needed to be bound by the RSP to make its terms effec-
    tive. While it may be true that the inclusion of Food 4 Less
    helped to effectuate the purposes of the agreement, Food 4
    Less had a separate contract with the unions that was set to
    expire at a later date; negotiations for a new agreement were
    months away. Food 4 Less was not part of the collective bar-
    gaining unit, and its inclusion in the RSP, even if helpful to
    the grocers, suggests that the revenue sharing was not integral
    to the collective-bargaining process.
    [6] The restraint here differs from that in Brown along vir-
    tually every dimension that the Court there found significant
    in addressing the applicability of the exemption: The revenue-
    sharing provision has not been approved or regulated by labor
    law, it was not directly related to the collective-bargaining
    process, it did not concern a matter that the parties were
    required to negotiate collectively, and it involved a party that
    was not a member of the collective-bargaining relationship.
    The RSP is sufficiently “distant . . . in circumstances from the
    9302                 CALIFORNIA v. SAFEWAY, INC.
    collective-bargaining process that a rule permitting antitrust
    intervention would not significantly interfere with that pro-
    cess.” Brown, 
    518 U.S. at 250
    . We decline to read the
    Supreme Court’s rejection of various limiting principles for
    the exemption in Brown as an invitation to apply the exemp-
    tion broadly to any agreement loosely associated in time with
    bargaining, as the grocers advocate. To protect the employer
    agreement from antitrust scrutiny in this case would represent
    a major extension of the non-statutory labor exemption as
    described in Brown and, in our view, would run contrary to
    the history and logic of the exemption. An agreement among
    employers (some of which are members of a multi-employer
    bargaining unit and one of which is not) to re-allocate their
    revenues on a temporary basis to maintain market share while
    their workers are striking or locked out is not within the core
    concerns of labor law. Although the arguments advanced by
    the grocers may be relevant to their position that there was no
    unreasonable restraint of trade, they are not sufficient to
    require application of a non-statutory labor exemption.8 The
    district court correctly concluded that the grocers’ revenue-
    sharing agreement is not immune from antitrust scrutiny, and
    we affirm that conclusion.
    We proceed to consider the merits of California’s claim
    under the Sherman Act.9
    8
    We are reluctant to expand the non-statutory exemption beyond the
    scope of Brown without further guidance from the Supreme Court. See
    Brown, 
    518 U.S. at 250
     (noting that its holding was “not intended to insu-
    late from antitrust review every joint imposition of terms by employers,”
    but that it “need not decide in this case whether, or where, within these
    extreme outer boundaries to draw that line”).
    9
    Chief Judge Kozinski’s partial dissent contends that, in light of the
    stipulations of the parties, our ruling on the non-statutory labor exemption
    is “very likely” an advisory opinion and beyond the scope of our jurisdic-
    tion. That position does not present a correct view of our Article III juris-
    diction, and would seem to foreclose ruling on many issues squarely
    presented. The issue of whether the RSP is exempt from antitrust scrutiny
    —which was expressly ruled on by the district court and preserved for
    CALIFORNIA v. SAFEWAY, INC.                     9303
    IV.    Antitrust Liability
    A.    Methods of Antitrust Analysis
    [7] Section 1 of the Sherman Act prohibits “[e]very con-
    tract, combination in the form of trust or otherwise, or con-
    spiracy, in restraint of trade or commerce among the several
    States.” 
    15 U.S.C. § 1
    . “Congress designed the Sherman Act
    as a consumer welfare prescription.” Reiter v. Sonotone
    Corp., 
    442 U.S. 330
    , 343 (1979) (internal quotation marks
    omitted). “Consumer welfare is maximized when economic
    resources are allocated to their best use” and when “consum-
    ers are assured competitive price and quality.” Rebel Oil Co.
    v. Atl. Richfield Co., 
    51 F.3d 1421
    , 1433 (9th Cir. 1995). “A
    restraint that has the effect of reducing the importance of con-
    sumer preference in setting price and output is not consistent
    with this fundamental goal of antitrust law.” Nat’l Collegiate
    Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 
    468 U.S. 85
    , 107 (1984). Congress sought to ensure that competitors
    not cut deals aimed at stifling competition and at permitting
    higher prices to be charged to consumers than would be
    expected in a competitive environment, or permitting lower
    prices to be paid to those from whom competitors bought
    materials than a fair market rate. The touchstone is consumer
    good. Agreements of competitors, whether express or
    implicit, whether by formal agreement or otherwise, in
    restraint of trade are outlawed.
    [8] The Supreme Court has repeatedly recognized that by
    the language of the Sherman Act, “ ‘Congress intended to out-
    appeal by the parties—is a threshold question that logically precedes our
    examination of the antitrust issues. If in addressing the exemption we
    determined that the RSP should be insulated from antitrust review, there
    would be no need to consider whether the RSP could be condemned with
    a per se rule or under “quick look” analysis. We properly may determine
    whether the antitrust regime applies at all before we rule on the merits of
    the antitrust claim.
    9304                 CALIFORNIA v. SAFEWAY, INC.
    law only unreasonable restraints.’ ” Texaco Inc. v. Dagher,
    
    547 U.S. 1
    , 5 (2006) (quoting State Oil Co. v. Khan, 
    522 U.S. 3
    , 10 (1997)). “[M]ost antitrust claims are analyzed under a
    ‘rule of reason,’ according to which the finder of fact must
    decide whether the questioned practice imposes an unreason-
    able restraint on competition, taking into account a variety of
    factors . . . .” State Oil, 
    522 U.S. at 10
    . The rule of reason is
    the presumptive or default standard, and it requires the anti-
    trust plaintiff to “demonstrate that a particular contract or
    combination is in fact unreasonable and anticompetitive.”
    Dagher, 
    547 U.S. at 5
    .10
    “Some types of restraints, however, have such predictable
    and pernicious anticompetitive effect, and such limited poten-
    tial for procompetitive benefit, that they are deemed unlawful
    per se.” State Oil, 
    522 U.S. at 10
    . Such restraints “ ‘are con-
    clusively 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.’ ” Nw. Wholesale
    Stationers, 472 U.S. at 289 (quoting N. Pac. Ry. Co. v. United
    States, 
    356 U.S. 1
    , 5 (1958). Per se treatment is proper only
    “[o]nce experience with a particular kind of restraint enables
    10
    As we have previously explained, “[t]he rule of reason weighs legiti-
    mate justifications for a restraint against any anticompetitive effects. We
    review all the facts, including the precise harms alleged to the competitive
    markets, and the legitimate justifications provided for the challenged prac-
    tice, and we determine whether the anticompetitive aspects of the chal-
    lenged practice outweigh its procompetitive effects.” Paladin Assocs., Inc.
    v. Mont. Power Co., 
    328 F.3d 1145
    , 1156 (9th Cir. 2003) (citing Nw.
    Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 
    472 U.S. 284
    , 290-93 (1985) (footnote omitted)). The rule of reason is responsible
    for a sensible application of the antitrust laws that has guided courts for
    almost a century. See Chi. Bd. of Trade v. United States, 
    246 U.S. 231
    ,
    238 (1918) (providing the classic formulation of the rule of reason by Jus-
    tice Brandeis: “The 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.”); see also
    Nat’l Soc’y of Prof’l Eng’rs, 
    435 U.S. 679
    , 687-91 (1978); Cont’l T.V.,
    Inc. v. GTE Sylvania Inc., 
    433 U.S. 36
    , 49-50 (1977).
    CALIFORNIA v. SAFEWAY, INC.                      9305
    the [c]ourt to predict with confidence that the rule of reason
    will condemn it.”11 Arizona v. Maricopa Cnty. Med. Soc’y,
    
    457 U.S. 332
    , 344 (1982). “[A] ‘departure from the rule-of-
    reason standard must be based upon demonstrable economic
    effect rather than . . . upon formalistic line drawing.’ ” Leegin
    Creative Leather Prods., Inc. v. PSKS, Inc., 
    551 U.S. 877
    , 887
    (2007) (second alteration in original) (quoting Cont’l T.V.,
    Inc. v. GTE Sylvania Inc., 
    433 U.S. 36
    , 58-59 (1977)). To jus-
    tify per se condemnation, a challenged practice must have
    “manifestly anticompetitive” effects and lack “any redeeming
    virtue.” Id. at 886 (internal quotation marks omitted). The
    Supreme Court has “ ‘expressed reluctance to adopt per se
    rules where the economic impact of certain practices is not
    immediately obvious.’ ” Dagher, 
    547 U.S. at 5
     (quotation
    marks and ellipses omitted) (quoting State Oil, 
    522 U.S. at 10
    ).
    [9] “[A] certain class of restraints, while not unambigu-
    ously in the per se category, may require no more than cur-
    sory examination to establish that their principal or only effect
    is anticompetitive.” XI Areeda & Hovenkamp ¶ 1911a, at
    295-96. Stated another way, the rule of reason analysis can
    sometimes be applied “ ‘in the twinkling of an eye.’ ” NCAA,
    
    468 U.S. at
    109 n.39 (quoting Phillip Areeda, The “Rule of
    Reason” in Antitrust Analysis: General Issues 37-38 (Federal
    Judicial Center, June 1981)). The Supreme Court explained in
    California Dental Ass’n v. FTC that this truncated rule of rea-
    son or “quick look” antitrust analysis may be appropriately
    used where “an observer with even a rudimentary understand-
    ing of economics could conclude that the arrangements in
    question would have an anticompetitive effect on customers
    and markets.” 
    526 U.S. 756
    , 770 (1999). “The object is to see
    whether the experience of the market has been so clear, or
    necessarily will be, that a confident conclusion about the prin-
    11
    Practices that have been held per se illegal include geographic division
    of markets and horizontal price fixing. See Major League Baseball Props.,
    Inc. v. Salvino, Inc., 
    542 F.3d 290
    , 315 (2d Cir. 2008) (collecting cases).
    9306              CALIFORNIA v. SAFEWAY, INC.
    cipal tendency of a restriction will follow from a quick (or at
    least quicker) look, in place of a more sedulous one.” Id. at
    781. Full rule of reason treatment is unnecessary where the
    anticompetitive effects are clear even in the absence of a
    detailed market analysis. See NCAA, 
    468 U.S. at 110
    . But if
    an arrangement “might plausibly be thought to have a net pro-
    competitive effect, or possibly no effect at all on competi-
    tion,” then a “quick look” form of analysis is inappropriate.
    Cal. Dental Ass’n, 
    526 U.S. at 771
    .
    “[T]here is generally no categorical line to be drawn
    between restraints that give rise to an intuitively obvious
    inference of anticompetitive effect and those that call for
    more detailed treatment.” 
    Id. at 780-81
    . Instead, to borrow
    Justice Souter’s phrase, there should be “an enquiry meet for
    the case” that looks to “the circumstances, details, and logic
    of a restraint.” 
    Id. at 781
    . “[I]n any rule of reason case the
    amount and type of evidence necessary to prove illegality var-
    ies with the amount of power that is apparent, with the nature
    and plausibility of proffered defenses, and with the judge’s
    evaluation of the degree of harm posed by the restraint.” XI
    Areeda & Hovenkamp ¶ 1911a, at 296.
    B.     Per Se Treatment
    California characterizes the RSP as (1) a profit-pooling
    agreement and (2) a market-allocation agreement, and urges
    that prior judicial experience with these categories of
    restraints requires per se condemnation of the RSP. We dis-
    agree. Given its distinguishing attributes, the RSP cannot be
    placed in either category of per se illegal restraints.
    1.    Profit-Pooling
    California first argues that the RSP is “nearly identical” to
    the profit-pooling arrangement invalidated in Citizen Publish-
    ing Co. v. United States, 
    394 U.S. 131
     (1969). In that case, the
    two daily newspapers operating in Tucson, Arizona, entered
    CALIFORNIA v. SAFEWAY, INC.                    9307
    into an agreement designed to “end any business or commer-
    cial competition” between them. 
    Id. at 134
    . The newspapers
    agreed to consolidate their production, distribution, advertis-
    ing, and most management operations in a jointly-held entity,
    to fix prices, and to refrain from engaging in any competing
    businesses. 
    Id.
     The agreement also provided that all profits
    realized by the papers would be pooled and distributed pursu-
    ant to an agreed ratio. 
    Id.
     The agreement was to continue in
    force for twenty-five years and was later extended to fifty
    years. 
    Id. at 133
    . The Court held that the § 1 violations of the
    agreement were “plain beyond peradventure,” and that
    “[p]ooling of profits pursuant to an inflexible ratio at least
    reduces incentives to compete for circulation and advertising
    revenues and runs afoul of the Sherman Act.” Id. at 135.
    [10] Contrary to California’s assertions, the RSP differs
    from the profit-pooling arrangement condemned in Citizen
    Publishing in significant ways, precluding per se treatment of
    the RSP. First, the agreement among the grocers stated that
    sharing of revenues would occur during the period of the
    labor dispute and for two weeks thereafter. The RSP, by its
    design, was of both limited and unknown duration. The reve-
    nue sharing would terminate two weeks after the resolution of
    any labor dispute, and this “triggering” event for the expira-
    tion of the agreement could occur at any time. While the
    agreement in Citizen Publishing was scheduled to last for fifty
    years and could be terminated only by mutual consent of the
    parties, id. at 133, the RSP could end at any time—as soon as
    the labor dispute was resolved.12 Indeed, the parties to the
    agreement could not know in advance how long the labor dis-
    pute would continue. The RSP lasted about five months.
    [11] This temporary and short-term feature of the RSP dis-
    12
    While labor disputes are capable of dragging on for months or years,
    it does not appear that anyone realistically expected the RSP to continue
    for anywhere near the extended period of time at issue in Citizen Publish-
    ing.
    9308                 CALIFORNIA v. SAFEWAY, INC.
    tinguishes the grocers’ agreement from the profit-pooling
    condemned in Citizen Publishing in a way that is relevant to
    the key question of whether the RSP is a per se unreasonable
    restraint on trade, with a “predictable and pernicious anticom-
    petitive effect.” State Oil, 
    522 U.S. at 10
    ; see also Freeman
    v. San Diego Ass’n of Realtors, 
    322 F.3d 1133
    , 1150-51 (9th
    Cir. 2003) (observing that per se rules are inappropriate in
    novel contexts and rejecting an argument against application
    of a per se rule because alleged novelty in the restraint was
    not relevant to issue of competitiveness). Because the RSP
    was of indefinite but temporary duration, the grocers retained
    incentives to compete during the labor dispute period. See XI
    Areeda & Hovenkamp ¶ 1906a, at 236, 238-39 (observing
    that, in most cases, courts assess “likely” effects to determine
    if a restraint is “naked” and subject to per se condemnation).
    Unlike the Citizen Publishing arrangement, which insulated
    the newspapers from competition by pooling profits for dec-
    ades and left no reason to compete for customers, the
    unknown duration of the RSP, the strike-induced nature of the
    agreement, and the fact that it could end at any moment sug-
    gest that the grocers had a continued interest in maintaining
    and growing their customer bases. Temporary revenue sharing
    likely did not blunt the grocers’ incentives to advertise, dis-
    count, and provide quality service. Grocers retained incen-
    tives to prevent the loss of customers during the strike, who
    might not return after switching to a competitor, and they also
    had incentive to win new customers that might return as regu-
    lar customers after the strike ended.13 Because the RSP was of
    a necessarily limited duration, the grocers’ interest in preserv-
    ing customer loyalty and maintaining or expanding market
    share likely persisted during the revenue-sharing period.14
    13
    The Supreme Court has recognized that “[t]he retail food industry is
    very competitive and repetitive patronage is highly important.” NLRB v.
    Brown, 
    380 U.S. 278
    , 284 (1965).
    14
    An agreement of limited and/or indefinite duration could have obvious
    anticompetitive effects and violate Section 1, for example, an agreement
    of competitors controlling most of the market to fix prices for a month to
    the detriment of consumers. But here, the limited and unknown length of
    the RSP separates it from a category of restraints with which we are suffi-
    ciently experienced to condemn without inquiry into actual competitive
    harms.
    CALIFORNIA v. SAFEWAY, INC.                       9309
    [12] Second, the RSP differs from the profit-pooling
    arrangement condemned in Citizen Publishing in that it did
    not include all of the grocers operating in the region. In Citi-
    zen Publishing, the only two daily newspapers in Tucson
    agreed to pool profits pursuant to an inflexible ratio. 
    394 U.S. at 134-35
    . As California concedes, the combined sales of the
    grocers that were party to the RSP accounted for between
    54.4% and 65.1% of the grocery market in the Los Angeles-
    Long Beach metropolitan area, and between 67.1% and
    76.0% of the grocery market in the San Diego metropolitan
    area. While their collective market share was significant, the
    grocers still faced competition from other retailers such as
    Stater Brothers, Trader Joe’s, Costco, and Whole Foods.
    Given the presence of these competitors in the market, there
    is a significant probability that the grocers retained incentives
    to continue—or even to increase—discounting and advertis-
    ing of grocery products to prevent the loss of customers and
    profits during the strike period, to gain new customers if pos-
    sible, and to maximize profitability and market share after the
    strike.
    [13] Because the RSP was an agreement among some, but
    not all, of the competitors in the relevant market, and because
    by its terms the RSP had a limited and indefinite duration, it
    evades any “easy label” of “profit-pooling” and cannot sensi-
    bly be grouped together with or analogized to the very differ-
    ent arrangement condemned in Citizen Publishing.15 See
    15
    California offers a series of cases in addition to Citizen Publishing in
    an effort to demonstrate that profit-pooling arrangements have long been
    condemned as per se illegal. See, e.g., United States v. Paramount Pic-
    tures, Inc., 
    334 U.S. 131
    , 149 (1948) (holding that an agreement among
    five producers of motion pictures and their affiliates to share profits
    according to prearranged percentages was anticompetitive); N. Sec. Co. v.
    United States, 
    193 U.S. 197
     (1904) (invalidating an agreement among
    stockholders in competing interstate railway companies to form one cor-
    poration with a controlling interest in the stock of each railway); Chi., M.
    & St. P. Ry. Co. v. Wabash, St. L. & P. Ry. Co., 
    61 F. 993
     (8th Cir. 1894)
    (invalidating an agreement among seven competing railroad companies to,
    9310                 CALIFORNIA v. SAFEWAY, INC.
    Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 
    441 U.S. 1
    ,
    8-10 (1979); United States v. Topco Assocs., 
    405 U.S. 596
    ,
    607-08 (1972) (“It is only after considerable experience with
    certain business relationships that courts classify them as per
    se violations of the Sherman Act.”). A restraint of this nature
    has not undergone the kind of careful judicial scrutiny that
    would support the application of a per se rule. See Topco
    Assocs., Inc., 
    405 U.S. at 607-08
    ; Metro Indus., Inc. v. Sammi
    Corp., 
    82 F.3d 839
    , 844 (9th Cir. 1996). Quite apart from the
    lack of judicial experience with a restraint of this nature, we
    conclude that the application of a per se rule is not warranted
    in this case because the practice of temporary revenue sharing
    during the duration of a labor dispute among some competi-
    tors within a market does not “facially appear[ ] to be one that
    would always or almost always tend to restrict competition
    and decrease output.” Broad. Music, 
    441 U.S. at 19-20
    . In
    light of its particular features and context, the RSP is “ ‘not
    a naked restraint of trade with no purpose except stifling of
    competition.’ ” 
    Id. at 20
     (brackets omitted) (quoting White
    Motor Co. v. United States, 
    372 U.S. 253
    , 263 (1963)).
    2.   Market Allocation
    We also reject California’s attempt to characterize the RSP
    as a market-allocation agreement. California correctly notes
    that market-allocation agreements among competitors at the
    same market level are per se antitrust violations. See United
    States v. Brown, 
    936 F.2d 1042
    , 1045 (9th Cir. 1991). “Clas-
    among other things, pool gross earnings for a period of twenty-five years);
    Anderson v. Jett, 
    12 S.W. 670
     (Ky. 1889) (voiding a multi-year arrange-
    ment between rival steamboat owners to end their rivalry by sharing prof-
    its according to fixed percentages). None of these cases, alone or in
    combination, establishes sufficient judicial experience with a revenue
    sharing agreement of limited duration, among some competitors in a mar-
    ket, so as to permit per se treatment of the RSP. The fundamental econom-
    ics of the firms and the public interest do not require per se prohibitory
    treatment of the challenged practice during a labor dispute.
    CALIFORNIA v. SAFEWAY, INC.                9311
    sic” horizontal market division agreements are ones in which
    “competitors at the same level agree to divide up the market
    for a given product.” Metro Indus., 
    82 F.3d at 844
    . But where,
    as here, “the conduct at issue is not a garden-variety horizon-
    tal division of a market, we have eschewed a per se rule and
    instead have utilized rule of reason analysis.” 
    Id.
     California
    argues that the RSP “mirrors” market-allocation agreements
    because it divides up the Southern California market accord-
    ing to the participants’ relative market shares. But California
    concedes that the RSP did not “prevent any Defendant from
    actually making sales” to consumers. California does not
    assert that the RSP restricted customers from patronizing cer-
    tain grocers. Moreover, the agreement did not prevent the gro-
    cers from selling any particular products, or limit the grocers
    to a particular set of customers or geographic regions. The
    RSP cannot be characterized as a per se illegal market-
    allocation agreement.
    C.    “Quick Look”
    We next address whether summary condemnation of the
    RSP on a truncated rule of reason or “quick look” is or is not
    correct. We conclude that a “quick look” conclusion of anti-
    trust illegality is here inappropriate. This is so for many of the
    same reasons that per se treatment is not correct. The unique
    features of the arrangement among the grocers—its limited
    duration and the existence of other significant external com-
    petitors in the market—and the uncertain effect these features
    had on the grocers’ competitive behavior and incentives dur-
    ing the revenue-sharing period render any anticompetitive
    effects of the RSP not obvious.
    To reach a confident conclusion on the anticompetitive
    effects of the RSP, further development of the record is
    required. One might want to permit expert testimony and
    examine facts about the degree to which the challenged
    revenue-sharing agreement may have suppressed incentives of
    the grocers to discount and otherwise compete for customers.
    9312                  CALIFORNIA v. SAFEWAY, INC.
    One might want to have an understanding of the market
    impact of other competitors, not in the defendant group,
    whose pricing and terms of sale would have to be taken into
    account in a competitive market. It might be helpful to have
    an understanding whether other competitors were waiting in
    the wings to exploit any anticompetitive market by their entry,
    whether these potential new competitors were overseas, or in
    other regions of the United States, or were skilled in the
    developing concept of internet marketing of groceries or other
    novel techniques that might impose market pressures. Any of
    these inquiries might inform an evaluation whether, during
    the relevant period of its operation, the revenue-sharing provi-
    sion had any anticompetitive effect. On a “quick look,” none
    of this can be ascertained with reliability.16
    The features of the RSP described in connection with the
    per se mode of analysis not only separate it from traditional
    per se illegal categories of restraints and prevent characteriza-
    tion as a “naked” restraint on price or output, but they also
    raise sufficient doubt about the anticompetitive nature of the
    agreement such that detailed scrutiny is required to under-
    stand its effects. Because “empirical analysis is required to
    determine [the] challenged restraint’s net competitive effect,
    neither a per se nor a quick-look approach is appropriate
    because those methods of analysis are reserved for practices
    that facially appear to be ones that would always or almost
    always tend to restrict competition and decrease output.”
    Salvino, Inc., 
    542 F.3d at
    340 n.10. (Sotomayor, J., concur-
    ring) (internal quotation marks and brackets omitted).
    [14] To use the “quick look” approach, we must first deter-
    mine whether “an observer with even a rudimentary under-
    standing of economics could conclude that the arrangements
    in question would have an anticompetitive effect on custom-
    16
    Also, if experts gave conflicting views on these subjects, and they
    were material to resolution, then the decision of the trier of fact might con-
    trol the outcome.
    CALIFORNIA v. SAFEWAY, INC.                    9313
    ers and markets.” Cal. Dental Ass’n, 
    526 U.S. at 770
    . Once
    it is established that the restraint is inherently suspect and the
    anticompetitive effects are easily ascertained, 
    id.,
     then the
    burden shifts to the grocers to produce evidence of procompe-
    titive justification or effects and thus demonstrate the need for
    more extensive market inquiry, 
    id. at 775
    ; see also XI Areeda
    & Hovenkamp ¶ 1914d, at 354-55. The features of the RSP—
    its limited, indefinite duration and the presence of other com-
    petitive firms in the market—strongly suggest that the agree-
    ment “might plausibly be thought to have a net
    procompetitive effect, or possibly no effect at all on competi-
    tion.”17 Cal. Dental Ass’n, 
    526 U.S. at 771
    .
    [15] “Where, as here, the circumstances of the restriction
    are somewhat complex, assumption alone will not do.” 
    Id.
     at
    775 n.12. The particular features and context of the RSP are
    more than mere idiosyncracies: they warrant further develop-
    ment of evidence and more rigorous review. See XI Areeda
    & Hovenkamp ¶ 1911a, at 295. Because we cannot reach a
    confident conclusion that the principal tendency of the RSP is
    to restrict competition, truncated review is inappropriate.
    Can it be successfully argued, to the contrary, that because
    the RSP reduces the monetary risks of lost sales to participat-
    ing grocers during a whipsaw strike, it is irretrievably anti-
    competitive in effect? We conclude that such an argument
    fails. If a competitor finds itself the target of a strike, which
    would cause it to lose sales to other competitors, then revenue
    sharing provides some cushion from the damaging monetary
    impact of the strike. But it is by no means “obvious” that the
    grocers that entered into the RSP would be motivated to
    reduce their competition on price. Although the immediate
    17
    The grocers argue that the RSP has procompetitive benefits in the
    form of lower prices for consumers as a result of the grocers’ ability to
    negotiate a more favorable contract on labor costs. Because California has
    not met its burden to show that the RSP is obviously anticompetitive, we
    need not address the grocers’ procompetitive justifications.
    9314                CALIFORNIA v. SAFEWAY, INC.
    monetary risk of losing sales to competitors during a labor
    strike is reduced by revenue sharing, the remaining risks are
    still such that a rational competitor would be expected to con-
    tinue to compete vigorously. While it is true that the arrange-
    ment provides a cushion that may arguably affect incentives
    to compete, that alone, absent evidence of actual anticompeti-
    tive impact on pricing, is not sufficient for us to resolve the
    RSP issue on a “per se” or “quick look” or any other abbrevi-
    ated basis.
    [16] In light of the novel circumstances and uncertain eco-
    nomic effects of the RSP, we conclude that the district court
    correctly determined that it should follow the presumptive
    rule of reason. See Cal. Dental Ass’n, 
    526 U.S. at 781
    . Before
    the challenged revenue-sharing agreement technique is out-
    lawed for use during a labor dispute, there should be open dis-
    covery and fair consideration of all factors relevant under the
    traditional rule of reason test, so as to determine if there are
    significant anticompetitive impacts and if so whether they
    outweigh any legitimate justifications. Application of the tra-
    ditional rule of reason is not a simple matter, but it does per-
    mit the type of fundamental analysis appropriate for antitrust
    law evaluation, and it has stood the test of time.
    V.     Conclusion
    We hold that the agreement between the grocers to share
    revenues for the duration of the strike period is not exempt
    from scrutiny under the Sherman Act, and that more than a
    “quick look” is required to ascertain its impact on competition
    in the Southern California grocery market. Given the limited
    judicial experience with revenue sharing for several months
    pending a labor dispute, we cannot say that the restraint’s
    anticompetitive effects are “obvious” under a per se or quick-
    look approach. Although we conclude that summary condem-
    CALIFORNIA v. SAFEWAY, INC.                     9315
    nation is improper, we express no opinion on the legality of
    the arrangement under the rule of reason.18 AFFIRMED.
    FISHER, Circuit Judge, specially concurring:
    I join Parts I-IV.A and V of the majority opinion, and con-
    cur in the outcome of Parts IV.B-C. I have strong doubts that
    the grocers’ profit sharing agreement left them with an undi-
    minished incentive to compete. Judge Reinhardt’s dissent
    raises serious economic concerns about the effects of even a
    limited profit sharing agreement that the majority has not
    entirely refuted. Nonetheless, I am not confident that under
    the novel circumstances here an “enquiry meet for the case”
    can be something less than the presumptive standard — the
    rule of reason. Cal. Dental Ass’n v. FTC, 
    526 U.S. 756
    , 770
    (1999); see Texaco Inc. v. Dagher, 
    547 U.S. 1
    , 5 (2006).
    Because I do not find that a “great likelihood of anticompeti-
    tive effects can easily be ascertained” on a quick look at the
    record before us, Cal. Dental, 
    526 U.S. at 770
     (emphasis
    added), and because we lack the “considerable experience”
    necessary for per se analysis to say the economic impact of
    the grocers’ agreement is “immediately obvious,” Leegin Cre-
    ative Leather Prods., Inc. v. PSKS, Inc., 
    551 U.S. 877
    , 886-87
    (2007) (emphasis added) (quotation marks omitted), I align
    myself with the rule of reason outcome of the majority opin-
    ion.
    18
    The ultimate competitive question may not be determined in this case
    because the State of California, to gain a final judgment that could be
    appealed at this time, has stipulated to foregoing its challenge to the RSP
    under the traditional rule of reason, contending instead that the RSP is
    invalid per se or on a “quick look.”
    9316              CALIFORNIA v. SAFEWAY, INC.
    Chief Judge KOZINSKI, with whom Judges TALLMAN and
    RAWLINSON join, dissenting in part:
    By going out of its way to rule on the non-statutory labor
    exemption, the majority decides an important legal question
    that will have absolutely no effect on anyone involved in this
    case. We hold that there’s no categorical antitrust violation
    under the quick look doctrine; nor can such a violation be
    established on remand, because California stipulated to dis-
    missal if it didn’t prevail under quick look. Since no antitrust
    violation can ever be established in this case, we have no
    occasion to decide whether any exemption from antitrust lia-
    bility would apply. The majority’s groundbreaking ruling on
    the labor exemption is thus very likely an advisory opinion
    and beyond the scope of our Article III jurisdiction. See
    Thomas v. Anchorage Equal Rights Comm’n, 
    220 F.3d 1134
    ,
    1138 (9th Cir. 2000) (en banc). Such dicta are particularly
    unwise when they are effectively insulated from Supreme
    Court review, as the grocers probably will have neither incen-
    tive nor standing to petition for certiorari.
    Worse, I seriously doubt the majority decides the labor
    exemption issue correctly because it fails to grapple with the
    complex dynamics of this case. Had it done so, it would have
    realized that each and every factor the Supreme Court found
    relevant in Brown v. Pro Football, Inc., 
    518 U.S. 231
     (1996),
    supports finding the revenue-sharing provision (RSP) pro-
    tected by the labor exemption. Contra maj. op. at 9301.
    First, the RSP was inextricably intertwined with the collec-
    tive bargaining process. See Brown, 
    518 U.S. at 250
    . Contra
    maj. op. at 9300-01. The grocers’ agreement was a direct
    response to the union’s anticipated use of whipsaw tactics. As
    courts have long recognized, whipsaw tactics are particularly
    devastating for employers, because
    the union strikes against one member of a multiem-
    ployer bargaining unit, but allows the other employ-
    CALIFORNIA v. SAFEWAY, INC.                9317
    ers to continue operating in order to maximize the
    competitive pressure brought to bear upon the struck
    member . . . ; the idea is thereby to force each
    employer individually to capitulate through a series
    of such strikes, thus defeating their attempt to stand
    together.
    Int’l Bhd. of Boilermakers v. NLRB, 
    858 F.2d 756
    , 760 (D.C.
    Cir. 1988).
    The grocers here were legitimately concerned that the
    union would selectively strike and picket only one chain,
    diverting their customers to the others. The unions would
    thereby upset the prevailing competitive balance, crippling the
    target and ruining any chance of bargaining as a group. The
    grocers sought to blunt the disproportionate losses borne by
    the targeted chain by redistributing some of the windfall prof-
    its reaped by the others as a result of the union’s tactics. The
    agreement was limited to the duration of the strike plus two
    weeks and became operative only if, and only to the extent,
    the union succeeded in redirecting consumers from the tar-
    geted store to other stores in the bargaining group. The RSP
    was thus narrowly tailored to counter the union’s divide-and-
    conquer strategy. Its effect, moreover, was entirely pro-
    competitive: It helped keep all competitors in the market
    rather than letting one be wiped out by the strike.
    As it turns out, the grocers were right to be concerned. Less
    than a week after their contracts expired, the unions struck,
    and Vons was the exclusive target. Per the grocers’ Mutual
    Strike Assurance Agreement, Albertson’s and Ralphs locked
    out their workers. The unions then picketed all three stores,
    but soon pulled pickets from Ralphs to zero in on the other
    chains. The unions’ strategy was highly effective: Vons and
    Albertson’s lost market share to Ralphs, as customers
    switched stores to avoid the picket lines. Some of these losses
    were offset by payments from Ralphs under the RSP, but
    many—such as the loss of long-time customers—were perma-
    9318              CALIFORNIA v. SAFEWAY, INC.
    nent. The RSP was thus a limited, defensive tool that was
    directly related to the collective bargaining process.
    The second Brown factor—that the practice is “unobjec-
    tionable as a matter of labor law and policy”—also points in
    favor of exemption. Brown, 
    518 U.S. at 238
    . Contra maj. op.
    at 9297-98. Although the NLRB has not had occasion to rule
    on the specific RSP at issue here, both the Supreme Court and
    the NLRB have generally sanctioned the use of economic
    weapons to combat whipsaw tactics. See, e.g., NLRB v.
    Brown (Brown Food), 
    380 U.S. 278
     (1965). The Supreme
    Court has recognized a particularly strong interest in “preserv-
    ing the integrity of the multiemployer bargaining unit” against
    targeted attacks. Brown, 
    518 U.S. at 245
     (quoting Brown
    Food, 
    380 U.S. at 289
    ) (internal quotation mark omitted).
    Accordingly, the Court has approved many practices employ-
    ers use to maintain a common front: They may, for example,
    agree to lock out all workers if any one of them is struck, see
    NLRB v. Truck Drivers Local Union No. 449, 
    353 U.S. 87
    ,
    89, 97 (1957), or hire temporary replacement workers, see
    Brown Food, 
    380 U.S. at 279-80
    . Revenue-sharing provisions
    that are designed to maintain cohesiveness in the teeth of
    union efforts to disrupt the bargaining group fit squarely
    within this category of accepted labor practices.
    On the handful of occasions that courts have evaluated the
    legitimacy of revenue-sharing provisions, they have been
    upheld. In Kennedy v. Long Island R.R., 
    319 F.2d 366
     (2d Cir.
    1963), the Second Circuit upheld the use of a strike insurance
    plan. Like the grocers here, the railroads were concerned that
    the union would engage in whipsaw tactics and wanted to
    spread the losses among employers. 
    Id. at 368-69
    . The rail-
    roads contributed to an insurance fund that would pay out in
    the event of a strike. 
    Id.
     As the proceeds were distributed, the
    fund was supplemented by further deposits from non-struck
    railroads. 
    Id.
     The union sued, claiming the strike insurance
    fund violated both antitrust law and the railroad’s duty to bar-
    gain in good faith. 
    Id. at 368
    . The Second Circuit rejected
    CALIFORNIA v. SAFEWAY, INC.              9319
    both claims, reasoning that “the strike insurance plan, far
    from constituting a violation of the railroad’s duty to bargain
    in good faith, was an instrument of self-help properly
    employed in the process of collective bargaining.” 
    Id. at 371
    .
    The D.C. Circuit reached a similar conclusion in Air Line
    Pilots Ass’n Int’l v. Civil Aeronautics Bd., 
    502 F.2d 453
     (D.C.
    Cir. 1974). There, six airlines entered into a “Mutual Aid
    Pact” to “soften the impact of strikes against individual com-
    panies.” 
    Id. at 455
    . The Mutual Aid Pact contained a provi-
    sion, almost identical to the RSP, under which a “strikebound
    company received payments from other Pact members equal
    to their increase in revenues resulting from the strike.” 
    Id.
     As
    in Kennedy, the union claimed the revenue-sharing provision
    violated antitrust law and national labor policy. 
    Id.
     The D.C.
    Circuit likewise rejected these claims, explaining that “[t]he
    national labor policy rests on the principle that parties should
    be free to marshall [sic] the economic resources at their dis-
    posal in the resolution of a labor dispute.” 
    Id. at 456
    .
    Although both of these cases were decided under the Railway
    Labor Act, their analysis was based on national labor policy
    and relied heavily on National Labor Relations Act cases. See,
    e.g., 
    id.
     at 456 n.3 (relying on NLRB v. Ins. Agents’ Int’l
    Union, 
    361 U.S. 477
    , 490 (1960)); Kennedy, 
    319 F.2d at
    371
    n.4 (relying on Truck Drivers, 
    353 U.S. 87
    ). The majority dis-
    misses these cases in a footnote, but they fatally undermine
    the majority’s claim that the precaution adopted by the
    employers here is too novel and exotic to fall within the labor
    exemption.
    Courts have also approved other strategies that redistribute
    the financial pain wrought by a strike. When unions engage
    in selective striking, for example, striking employees are often
    paid benefits to compensate for lost wages. See Kennedy, 
    319 F.2d at 372
    . Unions do this because it would be unfair to force
    one set of employees to bear the entire burden when the even-
    tual benefit will inure to everyone. Strike benefits also
    strengthen the union’s bargaining position by ensuring all
    9320             CALIFORNIA v. SAFEWAY, INC.
    employees share the same incentives, and none will be driven
    by personal hardship to undermine the strike. Strike benefits
    are thus considered a legitimate economic weapon. See Int’l
    Bhd. of Boilermakers, 
    858 F.2d at 767
    . RSPs serve precisely
    the same purposes for employers bargaining as a group: Why
    should one employer alone bear the heavy cost of selective
    striking or picketing, when the eventual contract will bind the
    entire group? And why should unions be able to spread the
    burdens of a strike to reinforce their bargaining position,
    while employers can’t?
    When unions pay benefits to striking workers, their collu-
    sive actions are protected by statute. See H. A. Artists &
    Assocs., Inc. v. Actors’ Equity Ass’n, 
    451 U.S. 704
    , 713-14
    (1981). To protect the collective bargaining process, employ-
    ers too must be allowed to share losses without fear of anti-
    trust liability, which is the very point of the non-statutory
    labor exemption. See Brown, 
    518 U.S. at 237
    .
    My colleagues reach the wrong conclusion because they
    misread Brown. The majority looks for some affirmative
    approval in labor law for the RSP, maj. op. at 9297-98, but
    that is far more than Brown calls for. Brown requires only that
    the conduct be “unobjectionable as a matter of labor law and
    policy.” 
    518 U.S. at 238
     (emphasis added). The very fact that
    the union did not challenge the RSP as an unfair labor prac-
    tice, despite having raised a procedural dispute before the
    NLRB, itself is proof that the RSP is unobjectionable as a
    matter of labor policy. The second Brown factor is clearly sat-
    isfied.
    The third Brown factor similarly favors exemption because
    the RSP concerned only parties with a direct stake in the out-
    come of the collective bargaining agreement. See Brown, 
    518 U.S. at 250
    . Contra maj. op. at 9301. Vons, Albertson’s and
    Ralphs were part of the same multi-employer bargaining unit,
    and Food 4 Less’s own contracts were set to expire just
    months later. Food 4 Less, standing alone, had no hope of
    CALIFORNIA v. SAFEWAY, INC.              9321
    doing better against the union than Vons, Ralphs and Albert-
    son’s had done by working together. In all likelihood, the con-
    tract the union wrung from them would set the bar for Food
    4 Less’s own negotiations. Food 4 Less thus had a strong
    labor-related interest in standing shoulder-to-shoulder with
    the three other chains.
    Equally important, Food 4 Less was required by its existing
    contract to contribute to employee benefits at a rate tied to
    that of Ralphs. As Ralphs’s Vice President of Human
    Resources and Labor Relations explained, “the rate . . . for
    Food4Less employees’ health and welfare [was] directly con-
    nected to the contract we . . . bargained.” If the unions man-
    aged to extract more favorable benefits from Ralphs and the
    other chains as a result of the strike, Food 4 Less would be
    forced to provide more benefits for its own workers. It thus
    had a direct and immediate financial stake in the contract
    negotiations. The majority’s claim that “the inclusion of
    [Food 4 Less] suggests that the conduct is not anchored in the
    collective-bargaining process,” id. at 9301, is belied by the
    record.
    The fourth factor—whether the conduct involved subject
    matter that the parties were required to negotiate collectively
    —simply doesn’t apply to this case. See Brown at 250. In
    Brown, the Court had to decide whether the NFL’s unilateral
    imposition of its last good faith salary offer was exempt from
    antitrust review. In such a case, it’s relevant whether these
    substantive terms relate to “wages, hours, and working condi-
    tions,” or whether the terms are unrelated to collective bar-
    gaining. Id. at 241; compare id. at 234 (agreement to set
    salaries is exempt), with United Mine Workers v. Pennington,
    
    381 U.S. 657
    , 663 (1965) (agreement to set prices of goods
    is not exempt). Where the employer action at issue involves
    a procedural bargaining tactic, rather than a substantive term
    of the contract, it makes no sense to ask whether the tactic
    relates to “wages, hours, and working conditions.” It never
    does. Yet procedural tactics go to the heart of the exemption’s
    9322              CALIFORNIA v. SAFEWAY, INC.
    purpose—to free from antitrust scrutiny employer actions that
    are “needed to make the collective-bargaining process work.”
    Brown, 
    518 U.S. at 234
     (emphasis added); see also 
    id. at 247
    .
    A lockout, for example, is a bargaining tactic that has nothing
    to do with “wages, hours, and working conditions” yet is
    exempt from antitrust review. See 
    id. at 245
    ; see also 
    id. at 254
     (Stevens, J., dissenting); maj. op. at 9300. That the
    revenue-sharing provision—which is a procedural tactic
    designed to put pressure on the union during the course of
    negotiations—doesn’t relate to a mandatory subject of collec-
    tive bargaining is simply beside the point and cannot count
    against application of the labor exemption. Contra maj. op. at
    9298-99.
    Fifth, and finally, the conduct indisputably “took place dur-
    ing and immediately after a collective-bargaining negotia-
    tion.” Brown, 
    518 U.S. at 250
    . The revenue-sharing provision
    clearly centered on the time period of the labor dispute, as it
    lasted only for the duration of the strike plus an additional two
    weeks. In its haste to condemn the RSP, the majority omits
    this factor from its discussion.
    A fair reading of the RSP can leave no doubt that all the
    relevant Brown factors weigh heavily in favor of exempting
    the RSP from antitrust review. We are not dealing with
    employers who were using a labor dispute as a pretext to
    engage in price-fixing; it’s perfectly clear that the employers
    were responding to union tactics in the course of a strike, and
    only to the degree the tactics were effectively deployed by the
    union. The majority’s contrary dicta have no basis in the
    record, common sense or precedent.
    Worst of all, we may never be able to correct this error.
    Strikes are costly endeavors for everyone involved, and intro-
    ducing the additional threat of antitrust liability—with its pro-
    tracted litigation, unpredictable rule of reason analysis and
    treble damages—will no doubt force employers to think twice
    before entering into a revenue-sharing agreement in the
    CALIFORNIA v. SAFEWAY, INC.                       9323
    future. Today’s gratuitous decision thus has the unfortunate
    consequence of “forcing [employers] to choose their
    collective-bargaining responses in light of what they predict
    or fear antitrust courts, not labor law administrators, will
    eventually decide.” Brown, 
    518 U.S. at 247
    . Should this fear
    prevent employers from entering into an RSP, we will have
    effectively usurped the role of the NLRB by dictating the
    tools that can and cannot be used in labor disputes. Because
    I find this result irreconcilable with Brown, inimical to sound
    labor policy, completely unnecessary to the resolution of this
    case and outside the scope of our constitutional authority, I
    dissent from Part III of the majority opinion.
    REINHARDT, Circuit Judge, dissenting in part and concur-
    ring in part, joined by Judges SCHROEDER and GRABER:
    Our antitrust law reflects Congress’s judgment that, with
    rare and specific exceptions, free competition for customers
    among firms protects and benefits the public by increasing
    efficiency and output, lowering prices, and improving the
    quality of the products and services available.1 No court has
    1
    See Apex Hosiery Co. v. Leader, 
    310 U.S. 469
    , 493 (1940) (“The end
    sought [by Congress in passing the Sherman Act] was the prevention of
    restraints to free competition in business and commercial transactions
    which tended to restrict production, raise prices or otherwise control the
    market to the detriment of purchasers or consumers of goods and services,
    all of which had come to be regarded as a special form of public injury.”);
    see also Spectrum Sports, Inc. v. McQuillan, 
    506 U.S. 447
    , 458 (1993)
    (“The purpose of the [Sherman] Act is not to protect businesses from the
    working of the market; it is to protect the public from the failure of the
    market. The law directs itself not against conduct which is competitive,
    even severely so, but against conduct which unfairly tends to destroy com-
    petition itself. It does so not out of solicitude for private concerns but out
    of concern for the public interest.”); City of Lafayette v. La. Power &
    Light Co., 
    435 U.S. 389
    , 398 (1978) (In passing the Sherman Act, Con-
    gress “sought to establish a regime of competition as the fundamental
    principle governing commerce in this country.”).
    9324               CALIFORNIA v. SAFEWAY, INC.
    ever upheld an agreement among multiple employers to set
    prices or share profits.
    In this case, the four largest supermarket chains in Southern
    California, controlling 60-70% of the market, entered into a
    profit sharing agreement according to a predetermined for-
    mula for the indeterminate period of an anticipated labor dis-
    pute and for a short period afterwards. The supermarkets
    contend that it is lawful for them to do so because, although
    profit sharing agreements are by their nature anticompetitive
    and thus constitute a restraint of trade, their particular profit
    sharing agreement differs in two respects from profit sharing
    agreements that have been held to violate the antitrust laws:
    first, the agreement was to last for only the limited duration
    of the strike, however long that might be; and, second, the
    four supermarkets control only a substantial majority but not
    100% of the market.
    The majority agrees with the supermarkets that these two
    factors make their profit sharing agreement sufficiently differ-
    ent from those in all the previously decided cases that, in
    order to determine whether their agreement has an anticompe-
    titive effect, it is necessary to apply not just the fact-sensitive
    intermediate test that the Supreme Court has endorsed for
    assessing less complex restraints of trade, but the most rigor-
    ous and exhaustive “rule of reason” analysis that requires a
    full-scale duel of economic experts over complicated and
    sophisticated market issues. I disagree.
    The profit sharing agreement’s indeterminate duration and
    less-than-total domination of the market are immaterial to an
    analysis of an agreement that inherently violates the antitrust
    laws. The correct method of analysis of a profit sharing agree-
    ment is either the simple per se rule or another intermediate
    standard such as quick look, by which we examine the anti-
    competitive effects of an agreement according to its particular
    circumstances, details, and logic, in light of the generally
    applicable antitrust law, fundamental principles of economics,
    CALIFORNIA v. SAFEWAY, INC.                     9325
    and clear experience of the market. See Cal. Dental Ass’n v.
    FTC, 
    526 U.S. 756
    , 780-81 (1999). Because a battle royale of
    economic experts in the courts is unnecessary and because
    defendants’ profit sharing agreement can readily be deter-
    mined to violate the antitrust laws under the intermediate
    standard, I would reverse the district court’s denial of sum-
    mary judgment to plaintiff and hold that the profit sharing
    agreement violates section 1 of the Sherman Act. Accord-
    ingly, I dissent in part.2
    I.
    Section 1 of the Sherman Act bans agreements or combina-
    tions that act as unreasonable restraints on interstate com-
    merce. See State Oil Co. v. Khan, 
    522 U.S. 3
    , 10 (1997).
    Defendants entered into an agreement to share profits. Such
    agreements have traditionally been held to be anticompetitive
    because they remove the incentive to engage in competitive
    behavior. Defendants have two principal contentions as to
    why their profit sharing agreement is different: first, that their
    profit sharing is for a limited, if indefinite period; and, sec-
    ond, that their agreement does not include 100% of the partic-
    ipants in the market. They also contend, by way of response
    to plaintiff’s prima facie case, that their profit sharing agree-
    ment helps them to prevail in the labor dispute and thereby to
    achieve their goal of lowering wages and benefits paid to their
    employees. Doing so, defendants allege, aids competition in
    the Southern California market.
    It is evident from a rudimentary knowledge of economics,
    as well as from a reading of the case law, that neither the
    agreement’s limited duration nor its failure to include the
    2
    Defendants also contend that their profit sharing agreement is exempt
    from the antitrust laws because they employ it as a bargaining tactic in an
    anticipated labor dispute. The majority concludes that the profit sharing
    agreement does not qualify for the nonstatutory labor exemption and I
    agree. See Maj. Op. at 9289-9302.
    9326              CALIFORNIA v. SAFEWAY, INC.
    fragmented group of other firms operating in the market could
    do more than reduce the ordinary anticompetitive effects of
    such agreements. Certainly these factors would not eliminate
    such effects. An analysis of the details, logic, and circum-
    stances of the particular profit sharing agreement, including
    its relationship to the anticipated strike, confirms that conclu-
    sion. The agreement’s effect is necessarily anticompetitive
    and, like any other profit sharing agreement of limited dura-
    tion among firms that control well over a majority, but less
    than 100% of the market, the anticompetitive effects might be
    reduced to some extent but they certainly would not be elimi-
    nated.
    A.
    The “presumptive or default,” Maj. Op. at 9304, method of
    analysis for determining whether an agreement is an unrea-
    sonable restraint on trade such as violates section 1 of the
    Sherman Act is rule of reason review. In conducting that
    review, courts fully examine factors such as “specific infor-
    mation about the relevant business,” “the restraint’s history,
    nature, and effect,” and “[w]hether the businesses involved
    have market power,” with the purpose of “distinguish[ing]
    between restraints with anticompetitive effect that are harmful
    to the consumer and restraints stimulating competition that are
    in the consumer’s best interest.” Leegin Creative Leather
    Prods., Inc. v. PSKS, Inc, 
    551 U.S. 877
    , 885-86 (2007) (inter-
    nal quotation marks omitted).
    Rule of reason review is data-intensive and, consequently,
    expensive for litigants; also, it consumes large amounts of
    court time and other resources. See Arizona v. Maricopa Cnty.
    Med. Soc’y, 
    457 U.S. 332
    , 343-44 & n.14 (1982). For these
    reasons, as well as to provide guidance to the business com-
    munity, see Cont’l T.V., Inc., v. GTE Sylvania Inc., 
    433 U.S. 36
    , 50 n.16 (1977), courts have developed summary methods
    of identifying section 1 violations in circumstances in which
    such violations are discernible without a full rule of reason
    CALIFORNIA v. SAFEWAY, INC.                       9327
    analysis: namely, per se review and quick look review. Per se
    analysis examines whether prior judicial experience with the
    type of restraint at issue is sufficient to allow a determination
    that it would always or almost always tend to restrict competi-
    tion and decrease output. See Leegin, 
    551 U.S. at 886
    . The
    focus of the inquiry is on accumulated data from prior deci-
    sions: an agreement may be declared unlawful with no further
    analysis, simply by virtue of its being of a type that courts
    have previously determined to have “manifestly anticompeti-
    tive effects,” but no “redeeming virtue.” 
    Id.
     (internal quota-
    tion marks omitted).
    In contrast, an arrangement violates section 1 under a quick
    look approach when “an observer with even a rudimentary
    understanding of economics could conclude that the arrange-
    ments in question would have an anticompetitive effect on
    customers and markets.” Cal. Dental Ass’n v. FTC, 
    526 U.S. at 770
    . Quick look review is not necessarily based on a his-
    tory of rule of reason adjudications; rather, it asks whether a
    “great likelihood of anticompetitive effects can easily be
    ascertained” by examining the restraint and considering the
    defendants’ justifications for it. See id.; see also XI Phillip E.
    Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1911a, at
    296-97 (2d. ed. 2004 Supp.) (Quick look review “is usually
    best reserved for circumstances where the restraint is suffi-
    ciently threatening to place it presumptively in the per se
    class, but lack of judicial experience requires at least some
    consideration of proffered defenses or justifications.” (foot-
    note omitted)).3
    3
    Inherent in the summary nature of quick look and per se analysis is the
    possibility that a restraint that would survive a full rule of reason analysis
    in a particular case will nonetheless be invalidated: “For the sake of busi-
    ness certainty and litigation efficiency, we have tolerated the invalidation
    of some agreements that a fullblown inquiry might have proved to be rea-
    sonable.” Maricopa Cnty. Med., 
    457 U.S. at 344
    . The ultimate inquiry in
    both analyses is establishing a sufficiently high likelihood of anticompeti-
    tive effect to justify foreclosing, in the name of certainty and efficiency
    9328                 CALIFORNIA v. SAFEWAY, INC.
    California contends that defendants’ profit sharing arrange-
    ment violates section 1 under either the per se rule or quick
    look review. Its assertion that the agreement strongly resem-
    bles arrangements that prior cases have found violative of sec-
    tion 1 is correct, although the particular circumstances of the
    restraint in question do differ from the circumstances relating
    to the profit sharing arrangements examined in those earlier
    cases. It is unnecessary, however, to determine whether such
    differences are sufficiently material that we should refrain
    from concluding that defendants’ profit sharing agreement
    was illegal under a strict per se analysis, because the agree-
    ment was plainly illegal under a quick look or, more accu-
    rately, a combined or mixed form of intermediate review.
    “[A] great likelihood” that defendants’ profit sharing arrange-
    ment produced “anticompetitive effects” is manifest, Cal.
    Dental Ass’n, 
    526 U.S. at 770
    , and defendants offer no plausi-
    ble procompetitive benefits that would overcome or neutralize
    those effects so as to require full rule of reason analysis.
    Although the parties briefed the case on the traditional view
    that the two summary forms of review are separate and unre-
    lated, and the questions they posed are here discussed sepa-
    rately to some extent, the lawfulness of the agreement is best
    analyzed in light of the Supreme Court’s recent explanation
    that “our categories of analysis of anticompetitive effect are
    less fixed than terms like ‘per se,’ ‘quick look,’ and ‘rule of
    reason’ tend to make them appear.” 
    Id. at 779
    . According to
    Justice Souter, writing for the Court, “[w]hat is required . . .
    is an enquiry meet for the case, looking to the circumstances,
    goals, the possibility that a more in depth review would reveal that a
    restraint was on balance benign or even beneficial. See Major League
    Baseball Props., Inc. v. Salvino, Inc., 
    542 F.3d 290
    , 340 n.10 (2d Cir.
    2008) (Sotomayor, J., concurring in the judgment) (quick look and per se
    “methods of analysis are reserved for practices that ‘facially appear [ ] to
    be one[s] that would always or almost always tend to restrict competition
    and decrease output.’ ” (alterations in original) (quoting Broad. Music,
    Inc. v. CBS, 
    441 U.S. 1
    , 19-20 (1979)).
    CALIFORNIA v. SAFEWAY, INC.                 9329
    details, and logic of a restraint,” with the object of determin-
    ing “whether the experience of the market has been so clear,
    or necessarily will be, that a confident conclusion” can be
    drawn that the “principal tendency” of an agreement is anti-
    competitive. Id. at 780. I would follow the Court’s suggestion
    and would apply a mixed or blended approach, engaging in an
    analysis “meet for the case” — here, an analysis that compels
    the confident conclusion that the principal tendency of defen-
    dants’ agreement is anticompetitive and that the agreement
    thus violates section 1 of the Sherman Act. On the basis of
    that intermediate analysis, I would reverse the district court
    and hold that defendants’ profit sharing arrangement is unlaw-
    ful.
    B.
    I first discuss the applicability of strict per se analysis. “The
    rationale of the rule of per se illegality depends on the prem-
    ise[ ] that . . . judicial experience with a particular class of
    restraints shows that virtually all restraints in that class oper-
    ate so as to reduce output or increase price.” XI Areeda &
    Hovenkamp ¶ 1911a, at 295. Accordingly, application of the
    per se rule is limited to restraints of a type that courts’ “con-
    siderable experience” has revealed to have “manifestly anti-
    competitive effects,” and no “redeeming virtue,” such that
    judges can “predict with confidence that it would be invali-
    dated in all or almost all instances under the rule of reason.”
    Leegin, 
    551 U.S. at 886-87
    . Thus, the question for per se anal-
    ysis is whether defendants’ agreement is of a type that courts
    have previously determined to have such pernicious effects.
    California argues that defendants’ profit sharing arrangement
    was both a profit pooling agreement and a market allocation
    agreement, each of which courts have determined to be sub-
    ject to per se invalidation. As I explain below, the contention
    that defendants’ agreement was a market allocation agreement
    is without merit. The question whether it was a profit sharing
    agreement sufficiently similar to the profit sharing agreements
    that courts have previously examined and invalidated is much
    9330              CALIFORNIA v. SAFEWAY, INC.
    closer. Below, I discuss the relationship between defendants’
    profit sharing agreement and profit sharing agreements invali-
    dated in prior cases but, ultimately, do not determine whether
    defendants’ agreement constituted a per se violation of the
    Sherman Act. Rather, as I explain below, in determining that
    it was unlawful, I would apply a per se-plus or a quick look-
    minus analysis, a combined or mixed approach, somewhere
    between pure per se and pure quick look, along the meet-for-
    the-case lines suggested by the Court in California Dental
    Association.
    1.
    California contends that defendants’ profit sharing agree-
    ment is essentially identical to those profit pooling and shar-
    ing schemes that the Supreme Court has found to be per se
    violations of section 1. See Citizen Publ’g Co. v. United
    States, 
    394 U.S. 131
    , 135 (1969) (“Pooling of profits pursuant
    to an inflexible ratio at least reduces incentives to compete for
    circulation and advertising revenues and runs afoul of the
    Sherman Act.”); see also United States v. Paramount Pictures
    Inc., 
    334 U.S. 131
    , 149 (1948) (profit sharing agreement a
    “bald effort[ ] to substitute monopoly for competition”); N.
    Sec. Co. v. United States, 
    193 U.S. 197
     (1904); Chicago, M
    & St. P. Ry. Co. v. Wabash, St. L. & P. Ry. Co., 
    61 F. 993
     (8th
    Cir. 1894); Anderson v. Jett, 
    12 S.W. 670
     (Ky. 1889).
    Profit pooling or profit sharing arrangements eliminate
    incentives to compete for customers along every dimension:
    there is little purpose in attempting to attract another firm’s
    customers by lowering prices, improving quality, or taking
    any other measure if the profits earned from those new cus-
    tomers would be placed in a common pool in which the other
    firm is a participant, and the proceeds distributed in the same
    way no matter which participant in the profit pool generated
    the underlying sales, or if transfer payments are made
    between firms to achieve the same effect. See N. Sec. Co., 
    193 U.S. at 328
     (pooling profits “destroy[s] every motive for com-
    CALIFORNIA v. SAFEWAY, INC.                       9331
    petition between . . . natural competitors.”); Chicago, M. & St.
    P. Ry. Co., 61 F. at 997 (a profit sharing agreement by which
    railroads that carried less than a predetermined share of
    freight were compensated by other railroads such that their
    share of total revenues remained constant had “[t]he necessary
    and inevitable result of . . . foster[ing] and creat[ing] poorer
    service and higher rates”). The Sherman Act was intended to
    curb just such restraints on competition.
    Defendants contend that there are three ways in which their
    scheme differs from the profit pooling or sharing that was
    held unlawful in prior cases. The first of these contentions is
    meritless. Defendants argue that, unlike the agreements in
    prior cases, which provided that the parties would share all
    profits, their agreement provides that any party that experi-
    ences an increase in relative market share would share with
    the others only 15% of its increase in relative revenue, and
    that the sums to be redistributed are less than all of the profits
    earned on those increased revenues. There is no question,
    however, that the 15% figure was defendants’ estimate of the
    total additional profits to be earned as a result of any increase
    in relative market share while the profit sharing agreement
    was in effect. This plan to share all the additional profits
    earned is what is relevant. Richard Cox, a vice president of
    Safeway who helped to draft the agreement, stated in his
    deposition that the 15% was meant to represent accurately the
    profit that a chain would collect on increased revenues that
    were earned without an increase in fixed costs. Defendants do
    not dispute the accuracy of his testimony. Their proffer is the
    statement of their expert witness, who conjectured that it was
    “plausible” and “likely” that incremental profits were greater
    than 15% of revenues, but admitted that he had done no anal-
    ysis of incremental profitability from the data.4 Defendants
    4
    I note that the district court should not have accorded the expert’s state-
    ment any weight given its explicitly speculative nature. “An expert’s opin-
    ions that are without factual basis and are based on speculation or
    conjecture” are inadmissible at trial and are “inappropriate material for
    consideration on a motion for summary judgment.” Major League Base-
    ball, 
    542 F.3d at 311
    .
    9332              CALIFORNIA v. SAFEWAY, INC.
    cannot force the expense of full rule-of-reason litigation on
    courts and opposing parties simply by speculating that they
    may have gotten their arithmetic wrong when they were set-
    ting up their scheme to share profits; their plan to share profits
    is sufficient, whether or not the scheme as implemented
    achieved that objective to perfection.
    Defendants’ other two contentions, however, raise suffi-
    cient question as to whether their profit sharing scheme
    should be invalidated under a strict per se approach or
    whether additional analysis of the agreement and its likely
    effects would be beneficial, and whether the court should pro-
    ceed to a quick look approach or, more accurately, to a mix-
    ture or combination of the two approaches.
    First, while profit sharing agreements in previous cases
    were to last for decades or permanently, defendants’ scheme
    is scheduled to last only for the period of the labor dispute,
    plus two additional weeks. See Citizen Publ’g, 
    394 U.S. at 133
     (fifty-year agreement); Paramount Pictures, 
    334 U.S. at 131
     (considering apparently permanent profit sharing agree-
    ments); N. Sec. Co., 
    193 U.S. at 197
     (finding illegal an appar-
    ently permanent profit pooling arrangement); Chicago, M. &
    St. P. Ry. Co., 61 F. at 996 (“The contract was to continue for
    25 years.”). That the term of the scheme could expire in a rel-
    atively short period — anywhere from a few weeks to a year
    or more, depending on the length of the strike — is no
    defense if the scheme is anticompetitive. Section 1 of the
    Sherman Act proscribes all anticompetitive agreements,
    regardless of their duration: neither the text of the statute nor
    the case law contains an exception for anticompetitive agree-
    ments that last for less than a fixed period of substantial
    length. However, defendants’ contention is that no anticompe-
    titive effects could result from their arrangement, because the
    potentially short term of the profit sharing leaves them with
    sufficient incentive to compete for customers, whose alle-
    giance might be retained after the end of the strike. Because
    courts have not previously considered profit sharing arrange-
    CALIFORNIA v. SAFEWAY, INC.              9333
    ments of a potentially very short duration, the court probably
    should not simply apply a pure per se analysis to defendants’
    arrangement.
    Second, unlike firms in most of the prior profit sharing
    cases, which were the only firms of their kind operating in the
    relevant market, defendants were not the only supermarkets in
    the affected areas. See, e.g., Citizen Publ’g, 
    394 U.S. at 133
    (the defendants were the only general distribution newspapers
    in Tucson). California is correct that a profit sharing plan
    need not cover the entire market in order to affect competi-
    tion. However, it is incorrect that the distinction between a
    profit sharing plan that covers the entire market and one that
    does not is unworthy of any consideration before we make a
    determination whether anticompetitive effects will result from
    an agreement. As with the previous distinction, courts have
    not explored the question sufficiently to allow certitude with
    the application of a strict per se approach here.
    2.
    California next contends that the profit sharing agreement
    was a market allocation agreement that allocated the Southern
    California grocery market according to defendants’ historic
    shares of that market. Market allocation agreements are “clas-
    sic per se antitrust violation[s].” See United States v. Brown,
    
    936 F.2d 1042
    , 1045 (9th Cir. 1991). Courts have treated as
    unlawful market allocation agreements assigning particular
    territories to particular vendors, see Palmer v. BRG of Ga.,
    Inc., 
    498 U.S. 46
    , 49-50 (1990) (per curiam); United States v.
    Topco Assocs., Inc., 
    405 U.S. 596
     (1972), assigning certain
    customers to certain vendors, see White Motor Co. v. United
    States., 
    372 U.S. 253
     (1963), and capping total sales volume
    of the market and assigning participants fixed shares of that
    total volume, see United States v. Andreas, 
    216 F.3d 645
    ,
    666-68 (7th Cir. 2000). The common thread to these decisions
    is that in allocating the market, firms ensure that customers
    9334              CALIFORNIA v. SAFEWAY, INC.
    attempting to purchase products in the relevant market will
    have fewer firms competing for their business.
    In contrast to the agreements at issue in the market alloca-
    tion cases, however, defendants’ agreement is not alleged to
    have decreased the number of supermarkets available to cus-
    tomers. Rather, California alleged that the agreement simply
    reduced the competition for customers among the defendant
    businesses. Thus, it does not allege a market allocation claim
    appropriate for either strict per se analysis or a mixed or
    blended approach, and we need proceed no further with that
    question. In view of the above, I would decline to hold that
    California prevails on a strict per se theory.
    C.
    Turning from a strict per se to a quick look, or rather, in
    this case, to a combined or mixed approach, fair analysis
    requires careful inquiry. An agreement violates section 1 of
    the Sherman Act under a quick look analysis when “an
    observer with even a rudimentary understanding of economics
    could conclude that the arrangements in question would have
    an anticompetitive effect on customers and markets.” Cal.
    Dental Ass’n, 
    526 U.S. at 770
    . If so, the burden of proof shifts
    to the defendant “to show empirical evidence of procompeti-
    tive effects.” See 
    id.
     at 775 n.12; XI Areeda & Hovenkamp
    ¶ 1914d(1) at 355. Accordingly, a court seeking to determine
    on a “quick look” whether an arrangement violates section 1
    must first determine whether it can “easily . . . ascertain[ ]”
    a “great likelihood of anticompetitive effects,” Cal. Dental
    Ass’n, 
    526 U.S. at 770
    , and, if so, whether any such effects
    are neutralized or outweighed by procompetitive benefits.
    Taking into account the Supreme Court’s recent explana-
    tion that the “categories of analysis of anticompetitive effect
    are less fixed than terms like ‘per se,’ ‘quick look,’ and ‘rule
    of reason’ tend to make them appear,” and that rather than
    drawing “categorical line[s]” between restraints, a court
    CALIFORNIA v. SAFEWAY, INC.               9335
    reviewing an agreement that is alleged to violate section 1
    must conduct “an enquiry meet for the case,” see 
    id.
     at 779-
    81, a court in a case like that before us should look to the his-
    tory of judicial experience with profit sharing agreements,
    apply rudimentary economic principles to the meaning and
    effects of the particular agreement in question, and carefully
    analyze the circumstances, details, and logic of the agreement
    in order to determine the likelihood of anticompetitive effects.
    Then it must consider the purported procompetitive effects
    that the defendants suggest are sufficient to overcome any
    anticompetitive effects of the agreement. The question, then,
    under the combined or mixed approach is whether, after con-
    ducting the requisite review and analysis the court can reach
    a “confident conclusion [that] the principal tendency” of the
    agreement is to restrict competition. See 
    id. at 781
    .
    Significantly, a “confident conclusion” does not always
    prove ultimately correct. See supra note 3. Rather, it repre-
    sents a tool of judicial economy designed to save the litigants
    and the courts a considerable investment of time and money,
    which in the balance is to the benefit of all. That occasionally
    we might be wrong is a price that it is long established that
    society is willing to pay. In fact, some of the conclusions of
    which our leading economic experts have been confident have
    turned out to be incorrect. For example, Alan Greenspan,
    appointed and then reappointed Chairman of the Federal
    Reserve for five terms by four different Presidents, recently
    admitted to a significant flaw in the ideology that caused him
    to support and implement policies of financial deregulation:
    “We made a mistake in presuming that the self-interest of
    organizations, specifically banks and others, were such that
    they were best capable of protecting their own shareholders.”
    See Paul M. Barrett, While Regulators Slept, N.Y. Times,
    Aug. 6, 2009, at BR 10. And Judge Richard Posner, a highly
    respected jurist and a leading economics expert, has recently
    expressed his admiration for Keynesian economics, reversing
    a lifetime of reliance on the Chicago School’s approach. See
    John Cassidy, Letter from Chicago, The New Yorker, Jan. 11,
    9336              CALIFORNIA v. SAFEWAY, INC.
    2010, at 28. Thus, a “confident conclusion” for purposes of
    quick look and other limited approaches means, at most, a
    reasonably confident conclusion a court may reach that, on
    some occasions, may prove to be incorrect. Equally incorrect,
    however, may be a conclusion reached by a body of econom-
    ics experts after years of study or even a verdict reached by
    a jury following a full-scale trial with the most careful and
    thorough development of a full evidentiary record with the aid
    of the most experienced antitrust lawyers and expert wit-
    nesses.
    Here, I am confident in my conclusion that defendants’
    profit sharing agreement creates a “great likelihood of anti-
    competitive effects,” and that such effects are not outweighed
    or neutralized by any plausible procompetitive benefits. I am
    confident that neither the duration of the agreement nor the
    fact that defendants have less than a 100% share of the market
    significantly affects the anticompetitive “principal tendency”
    of the profit sharing agreement. In reaching this conclusion,
    I have considered whether, because the objective of the agree-
    ment was to affect the outcome of a labor dispute and to bring
    about a reduction in labor costs, my conclusion should be
    altered. My answer is a definite and unqualified “No.”
    Finally, although the parties introduced some evidence to sup-
    port their respective positions, I do not rely on such empirical
    proof in reaching this conclusion; I note, however, that to the
    extent that it is relevant, the evidence appears either to sup-
    port the conclusion that I would reach or, alternatively, to add
    little or nothing of any significance to my analysis. Finally,
    although some confident conclusions may ultimately prove to
    be incorrect, I am confident that this one will not.
    1.
    a.
    Defendants entered into an agreement under which they
    shared profits with one another according to their historic
    CALIFORNIA v. SAFEWAY, INC.                        9337
    shares of the market. As discussed above, the only factors dis-
    tinguishing defendants’ arrangement from a profit sharing
    agreement that would have constituted a per se violation of
    section 1 of the Sherman Act are (1) the presence in Southern
    California of a fragmented cluster of smaller markets with a
    residual minority of the market share, and (2) the indefinite,
    if limited, term of the agreement. Absent those features,
    defendants’ scheme would simply constitute a profit pooling
    or sharing arrangement akin to the ones held violative of sec-
    tion 1 in earlier cases, and there would be no question that the
    agreement creates a “great likelihood of anticompetitive
    effects.” This is apparent from the fact that when firms shar-
    ing profits are the only firms in a market, each will receive the
    same portion of the total profits whether it cuts prices, invests
    in improving its products or services, or does nothing to win
    customers from the other firms; the result of this lack of com-
    petitive pressure is the high likelihood that prices rise towards
    monopoly levels or fail to fall with the same effect. It is for
    these reasons that the Supreme Court has said that “[p]ooling
    of profits pursuant to an inflexible ratio” is a “§ 1 violation[ ]”
    that is “plain beyond peradventure.” Citizen Publ’g, 
    394 U.S. at 135-36
    .5
    5
    This effect has been well understood for many years, and was ably
    explained well over a hundred years ago by the Kentucky Court of
    Appeal, then the highest court in that state, in the following discussion of
    a profit sharing arrangement between two steamboat companies:
    There was a strong stimulation to increase the net profits by
    means other than that of popular favor springing out of efficient
    steamboat facilities and close attention to the business of ship-
    ping for reasonable charges and courteous attention to passengers
    at reasonable fare. . . . It is the competition, or fear of competi-
    tion, that makes these carriers efficient, attentive, polite, and rea-
    sonable in charges. Remove competition, or the fear of it, and
    they become extortionate, inattentive, impolite, and negligent.
    . . . It is said that neither was bound to charge the same as the
    other. That is true; but either could extort with impunity, and the
    other would be an equal recipient of the fruit of the extortion. .
    . . It is true that their contract did not, in so many words, bind
    9338                 CALIFORNIA v. SAFEWAY, INC.
    The well-recognized effects of profit sharing set forth
    above help to guide the discussion in the case before us: that
    discussion starts from the premise that the sharing of profits
    among competitors ordinarily has substantial adverse effects
    on competition. Next is the consideration whether either of
    the aspects of the agreement before us that defendants assert
    materially distinguish it from ordinary profit sharing arrange-
    ments would, in light of the “circumstances, logic, and details
    of the restraint,” preclude that agreement from having the
    anticompetitive effect that would otherwise occur.
    In an ordinary period in which no profit sharing arrange-
    ment is in effect, defendants compete with one another, and
    with a smaller set of other unrelated grocers, for customers
    and sales. The fruits of successful competition might accrue
    both in the present, as a supermarket makes sales in the cur-
    rent period, and in the future, as customers won or retained
    through such competition return to the store to make more
    purchases. Defendants contend that a profit sharing agreement
    of limited duration, restricted to the dominant market partici-
    pants, does nothing to alter the ordinary incentive structure,
    and that the competitive pressure while such a profit sharing
    agreement is in effect is no less than the competitive pressure
    that would occur in the absence of such an agreement. Having
    them to any given charges; but it made it to the interest of each,
    not only to charge, but to encourage and sustain the other in
    charges that would amount to confiscation. . . . This combination
    was more than that of a combination not to take freight or passen-
    gers at less than certain prices. In such case, the combiners have
    to furnish adequate means of transportation, and efficient and
    polite officers, and confine themselves as nearly as possible to
    the sum agreed upon, in order to secure the trade, or a reasonable
    portion of it; but here, by reason of the agreement, . . . .
    [i]nefficient means of transportation [and] unskilled or inattentive
    officials[ ] are no drawback to either boat. Its share of the profits
    come[s] notwithstanding.
    Anderson v. Jett, 
    12 S.W. 670
    , 671 (Ky. 1889).
    CALIFORNIA v. SAFEWAY, INC.              9339
    reviewed their contentions and analyzed all the plausible
    effects of the agreement, I disagree. I am confident in the con-
    clusion that defendants’ profit sharing arrangement removes,
    or at the least significantly reduces, a key source of competi-
    tive pressure—competition among defendants for sales to be
    made during the agreement period—without there being any
    countervailing pressure sufficient to neutralize or overcome
    the overwhelming likelihood of anticompetitive effects.
    Although it is plausible that the two differences on which
    defendants rely will serve to reduce the competitive pressures
    to a lesser extent than would a long-term agreement among
    competitors who control 100% of the market, it is evident that
    the lessening of the reduction in competitive pressure will be
    one of degree only, and that there is no likelihood whatsoever
    that the anticompetitive effects of a profit sharing agreement
    will be eliminated.
    As already stated, when an arrangement redistributes all
    profits on current sales among a group of competitors accord-
    ing to a predetermined ratio, as defendants’ arrangement does,
    there is little reason for the individual firms within the group
    to compete with one another for those sales. Thus, the analy-
    sis begins with the determination that there is a high likeli-
    hood that defendants’ agreement has a substantial negative
    effect on their incentive to compete with one another for cus-
    tomers in order to make sales during the period in which the
    agreement is in effect. Defendants nonetheless contend that
    there is an incentive to compete with one another for custom-
    ers during the profit sharing period, pointing to the indefinite
    duration of the agreement and to the possibility that customers
    who are won or retained through competition during that
    period will remain as customers after the agreement ends.
    Additionally, they contend that the other firms in the market
    will exert competitive pressure on them sufficient to make up
    for any loss of competitive pressure among themselves. These
    contentions must be examined for their validity during the
    period of limited duration in general, and then in light of
    9340             CALIFORNIA v. SAFEWAY, INC.
    whether the particular circumstance of the agreement — an
    impending labor strike — alters that general analysis.
    First, for a profit sharing agreement of limited but indefi-
    nite duration, the incentive to compete for sales and profits
    that would occur at some future time would necessarily be
    less than the ordinary incentive to compete by seeking to
    attract customers who will patronize the stores starting imme-
    diately and will continue to patronize them in the future as
    well. The supermarkets assert that the profit sharing arrange-
    ment does not reduce their incentive to engage in competitive
    behavior because customers might buy goods at some indefi-
    nite point in the future in which profits would not be shared.
    Any such future incentives are at best speculative and must be
    heavily discounted. The sales that would produce those future
    profits might not be made for six months, or a year, or more.
    By paying money now for sales that would occur, if at all,
    only in the indefinite future, the defendants would incur the
    ordinary costs of obtaining customers without receiving the
    ordinary benefits that would accrue. Whatever incentive
    might remain, with the agreement in place, for the supermar-
    kets to compete for customer purchases in the future is con-
    siderably outweighed by the incentives that the agreement
    reduces to compete for purchases today. Viewing matters
    most favorably to defendants, the anticompetitive effects
    resulting from an agreement of limited, if indefinite, duration
    might be diminished, but certainly would not be eliminated.
    There can be no question whatsoever that the profit sharing
    agreement of indefinite duration would at least to some
    degree reduce defendants’ incentive to compete.
    With defendants exerting reduced competitive pressure on
    one another during the profit sharing period, competition from
    firms not included in the profit sharing agreement would have
    to result in an extraordinary amount of increased competitive
    pressure to make up for the loss of the paramount pressure
    that defendants ordinarily exert on each other. This too is
    CALIFORNIA v. SAFEWAY, INC.                       9341
    highly unlikely.6 During the profit sharing period, defendants
    controlled at least 60% of the Los Angeles-Long Beach por-
    tion of the Southern California market and at least 70% of the
    San Diego portion, and between them operated more than 950
    stores in the areas affected by the agreement, a combined
    presence sufficient to suggest an ability to significantly affect
    prices and other outcomes in the Southern California market.7
    6
    IIA Areeda & Hovenkamp ¶ 391b(1) at 323 (“[W]hether a price-
    fixing conspiracy among sellers involves everyone or only a dominant
    group, this business practice leads to overcharges that constitute antitrust
    injury. The same can be said for business practices that are economically
    equivalent — for example, agreements on market division, product qual-
    ity, credit terms, and the like.”).
    7
    No precise standard exists for determining when a firm or a group of
    firms controls enough of a market that its actions might cause anticompeti-
    tive effects. However, the uncontested facts about defendants’ share of the
    market and the fragmented nature of the rest of the market together appear
    to be sufficient to establish the monopoly power over the market required
    for a violation of section 2 of the Sherman Act, a higher standard than is
    required to find that a firm or firms had sufficient power in the market that
    their actions could violate section 1. See Am. Tobacco Co. v. United
    States, 
    328 U.S. 781
    , 797 (1946) (a firm with over two-thirds of the mar-
    ket is a monopoly); Syufy Enters. v. Am. Multicinema, Inc., 
    793 F.2d 990
    ,
    995-1000 (9th Cir. 1986) (60-69% market share accompanied by a frag-
    mentation of competition sufficient to show “monopoly power” over a
    market as required for violations of section 2 of the Sherman Act); Pac.
    Coast Agric. Exp. Ass’n v. Sunkist Growers, Inc., 
    526 F.2d 1196
    , 1204
    (9th Cir. 1975) (45-70% share of the market sufficient to show monopoly
    power where no other competitor had more than a 12% share); Eastman
    Kodak Co. v. Image Technical Servs., Inc., 
    504 U.S. 451
    , 481 (1992)
    (“Monopoly power under § 2 requires, of course, something greater than
    market power under § 1.”); cf. FTC v. Staples, 970 F. Supp 1066 (1997)
    (applying 1982 Merger Guidelines); Costco Wholesale Corp. v. Maleng,
    
    522 F.3d 874
    , 896 (9th Cir. 2008) (“When firms in a market are able to
    coordinate their pricing and production activities, they can increase their
    collective profits and reduce consumer welfare by raising price and reduc-
    ing output.”) (citing George Stigler, A Theory of Oligopoly, 72 J. Pol.
    Econ. 44 (1964) (arguing that successful collusion requires firms to over-
    come particular market uncertainties; one of the key uncertainties is
    whether another firm will “cheat” its rivals by offering a lower price));
    United States Energy Information Administration, World Crude Oil Pro-
    duction, 1960-2008, http://www.eia.doe.gov/aer/txt/ptb1105.html (last vis-
    ited June 13, 2009) (during the 1970s OPEC never controlled more than
    56% of the world oil market).
    9342                 CALIFORNIA v. SAFEWAY, INC.
    Defendants would be at least partially insulated from competi-
    tion from other vendors by virtue of the many and varied
    locations of their stores, which for numerous customers would
    be far more convenient to patronize than the markets operated
    by the other vendors. Defendants also would be partially insu-
    lated from such competition by the inability of the other ven-
    dors to compete effectively as a result of brand recognition
    (and, indeed, customer awareness of their existence), limited
    facilities, contracts with suppliers and staffing commensurate
    with their limited historical role in the market; factors that
    would substantially curtail the ability of the other vendors to
    serve additional customers.8 Those other vendors would no
    more be able to increase their capacity, staff, supplies, and
    brand recognition overnight than they could immediately
    open new locations convenient for defendants’ customers.
    Nor would they be inclined to spend money to do so, knowing
    that the profit sharing agreement was of limited duration and,
    in fact, could end at any time. Finally, those other vendors are
    mainly independent of each other, consist of various types of
    markets, and would have neither the inclination nor the ability
    to agree on a uniform marketing policy that would signifi-
    cantly increase whatever competitive pressure the totality of
    those vendors ordinarily exerts on defendants. The over-
    whelming likelihood appears to be that, on the whole, smaller
    vendors would do little if anything to alter their marketing
    practices but rather would continue on their ordinary course,
    which would not serve to increase their economic pressure on
    defendants beyond what they ordinarily exert, or attract any
    8
    Another consideration is that many alleged competitors’ product offer-
    ings differ substantially from those of defendants, including box stores
    selling goods in bulk, such as Costco; retailers selling a limited selection
    of products and brands, such as Trader Joe’s; and stores specializing in
    organic foods, such as Whole Foods. These markets are by their nature
    incapable of competing for much of the business of traditional supermar-
    kets such as those operated by defendants. Notwithstanding these obvious
    facts, Costco, Trader Joe’s, and Whole Foods were each alleged by defen-
    dants to have placed competitive pressure on them during the labor dis-
    pute.
    CALIFORNIA v. SAFEWAY, INC.                       9343
    large number of the customers that ordinarily patronize defen-
    dants.9
    No one would dispute that the supermarkets’ agreement
    had anticompetitive effects if they had simply agreed to fix
    equal prices and wages in order to eliminate competitive risk.
    The agreement in this case generated no less irreducibly anti-
    competitive effects, because the supermarkets’ arrangement,
    like any other naked restraint on trade, reduced incentives to
    compete and yielded no plausible off-setting procompetitive
    or competition-neutralizing effects. A rudimentary knowledge
    of antitrust law dictates the conclusion that, if defendants in
    this case agreed to share profits for a limited period for their
    mutual economic benefit, there would be a violation of sec-
    tion 1 of the Sherman Act — at least in the absence of some
    extraordinary circumstance.
    9
    Interestingly, economic theory suggests an even stronger negative
    effect on competition: it would appear to predict that, at least in the short
    run, in a market in which large, dominant firms have an agreement limit-
    ing competition amongst themselves, such an agreement will tend to
    increase the prices charged by those large firms, and that smaller firms,
    rather than increasing whatever economic pressure they ordinarily exert on
    those larger firms by charging the lower prices that would obtain under
    competitive conditions in order to attract the larger firms’ customers, but
    will instead charge higher prices close to those being charged by the larger
    firms. See Herbert Hovenkamp, Federal Antitrust Policy § 4.1b (1994).
    Firms that pool profits are acting as a kind of cartel, and cartels that do
    not contain all the firms in the market are still able to raise prices above
    the prices that would be observed in a competitive marketplace, especially
    in a short term situation like that present here, in which the fixed costs of
    starting a supermarket (leases, employment and product purchasing con-
    tracts, signage, etc.) make it unlikely that new firms would enter the mar-
    ket to take advantage of the prices that are artificially high due to the
    cartel’s collusive behavior. See Dennis W. Carlton & Jeffrey M. Perloff,
    Modern Industrial Organization 107-15, 122 (3d ed. 2000). Additionally,
    fixing market shares at precartel levels, as defendants essentially did here,
    is an “effective technique” for preventing cheating (in the form of compet-
    itive behavior) among members of the cartel. See id. at 139-40.
    9344                 CALIFORNIA v. SAFEWAY, INC.
    This brings us to defendants’ contention that the threat of
    a strike, or a strike itself, constitutes such a circumstance.
    First, then, we must consider whether the profit sharing agree-
    ment loses its anticompetitive effects when it becomes opera-
    tive during the course of a strike or labor dispute. There
    should be little difficulty in answering that question: the fact
    that defendants’ agreement provides for profits to be shared
    only during a labor dispute and a brief ensuing period does
    not alter its inherently anticompetitive nature. Even during a
    strike period, a profit sharing agreement generates a “great
    likelihood of anticompetitive effects.” For a vendor, the prin-
    cipal features of an employee strike are diminished consumer
    demand, as some customers choose not to cross the picket
    lines; a reduced workforce, because some workers at least are
    on strike; and a more urgent financial condition, as fixed costs
    remain at nonstrike levels, and revenues go down. While
    diminished demand, a reduced workforce, and a more urgent
    financial condition might affect defendants’ competitive
    behavior during the strike, these potential effects would occur
    independent of the existence of a profit sharing agreement.
    None of these effects changes the basic impact of the agree-
    ment: defendants had little incentive to compete with one
    another while it was in effect because any profits earned on
    sales to another defendant’s former customers would simply
    be redistributed back to the other defendants.10
    10
    A more urgent financial condition would appear, if anything, to make
    it less likely that defendants would commit resources to competing with
    each other for customers from whom they would receive profits, if at all,
    only at some future date. To any extent that lower demand, lower supply,
    or strike-caused financial woes would prompt a defendant to try to win
    customers from vendors external to the agreement, the profit sharing
    agreement would, as in a nonstrike period, reduce its incentive for doing
    so: while the defendant would pay the entire cost (in advertising, improved
    quality, or discounting) of luring such customers, it would retain only a
    fraction of the benefit generated equal to its prestrike share of the market,
    and a substantial number of the new customers might well, for reasons dis-
    cussed earlier, be lost by the time the labor dispute and profit sharing
    ended.
    CALIFORNIA v. SAFEWAY, INC.               9345
    The profit sharing agreement itself would have an addi-
    tional effect; it would cause defendants to compete even less
    during the strike period than they would were there no profit
    sharing agreement in effect at that time. Whatever the base-
    line circumstance as to competition in any given period,
    including a strike period, the existence of the profit sharing
    agreement results in a greater likelihood of reduced competi-
    tion than there would otherwise be. That is the simple lesson
    that is apparent from a rudimentary knowledge of economics.
    Profit sharing necessarily serves to diminish the incentives to
    compete below whatever the level of competition would be in
    the absence of such an agreement; it is inherently, or as some
    courts have said, intuitively, anticompetitive and has the
    same, or a similar, effect on competition during a strike as it
    would have before the strike and after it ends. See Cal. Dental
    Ass’n, 
    526 U.S. at 780-81
    . The ultimate impact that the agree-
    ment has on pricing or output might be lower or higher
    depending on other circumstances, such as the existence of
    the anticipated labor dispute; however, whether greater or
    lesser, the net effect in all circumstances would be anticompe-
    titive.
    For the reasons explained above, I conclude that a “great
    likelihood of anticompetitive effects can easily be ascer-
    tained” by examining the agreement in light of prior cases, in
    light of its circumstances and details, as well as in light of
    logic and rudimentary principles of economics. Here, those
    anticompetitive effects are not only substantial, but they result
    from an agreement that removes fundamental incentives to
    engage in competition for an indefinite period. In short, nei-
    ther the fact that there are a number of smaller companies in
    the market, the fact that the agreement is of an indefinite
    though limited duration, nor the fact that the agreement takes
    effect during a strike, warrants a departure from the well-
    established rule that profit sharing agreements are anticompe-
    titive and violate section 1 of the Sherman Act.
    9346              CALIFORNIA v. SAFEWAY, INC.
    b.
    Defendants’ fallback position is that the state lacks empiri-
    cal evidence to demonstrate that the effects of the agreement
    were anticompetitive in practice. However, neither per se nor
    quick look review ordinarily requires empirical evidence of
    anticompetitive effects, nor is it required for the combined or
    mixed per se/quick look approach that should be applied here.
    As Professors Areeda and Hovenkamp explain, “[t]he main
    difference between . . . the ‘quick look’ approach and the rule
    of reason is that under the former the plaintiff’s case does not
    ordinarily include proof of [market] power or anticompetitive
    effects.” XI Areeda & Hovenkamp ¶ 1914d(1), at 355; see
    also Cal. Dental Ass’n, 
    526 U.S. at 779-80
     (explaining that
    the “quality of proof required should vary with the circum-
    stances;” that “naked restraint[s] on price and output need not
    be supported by a detailed market analysis in order to” move
    to the second step of the quick look analysis and “require”
    defendants to produce “some competitive justification”; and
    that not “every case attacking a less obviously anticompetitive
    restraint . . . is a candidate for plenary market examination”)
    (internal quotation marks omitted)). So long as the anticompe-
    titive nature of the likely effects of an agreement is, as a theo-
    retical matter, “obvious,” it is not necessary for a plaintiff to
    provide empirical evidence demonstrating anticompetitive
    consequences. See Cal. Dental Ass’n, 
    526 U.S. at 770-71
    ; see
    also NCAA v. Bd. of Regents of Univ. of Oklahoma, 
    468 U.S. 85
    , 109-10 (1984). Such a rule is necessary in antitrust cases,
    where “reliable proof” of such effects might be “impossible
    to produce.” XI Areeda & Hovenkamp ¶ 1901d at 207 (also
    noting that “in most [antitrust] cases . . . the impact on out-
    put,” which in this case would be diminished sales at higher
    prices, “is assessed by inference from the nature of the agree-
    ment and surrounding circumstances rather than by actual
    empirical measurement”).
    This is a case in which reliable proof of anticompetitive
    effects or their absence through empirical evidence might be
    CALIFORNIA v. SAFEWAY, INC.                       9347
    difficult to obtain. Defendants’ own expert explained that,
    because the profit sharing agreement took effect only during
    the labor dispute and both the agreement and the labor dispute
    might affect defendants’ pricing decisions, the data required
    to best distinguish between the effects of the strike and those
    of the agreement and determine whether and how the agree-
    ment affected competition between defendants do not exist.
    See Declaration of Thomas R. McCarthy ¶ 47.
    This is, more important, a case in which the anticompetitive
    nature of the restraint is obvious. As discussed above, by the
    terms of the agreement any defendant that earns profits above
    its historic market share is required to give those additional
    profits to the other defendants. Because a defendant may not
    retain any profits that it made from competing with the other
    defendants and receives a proportionate share of whatever
    profits those other defendants make from competing with it,
    the profit sharing agreement plainly reduces the competitive
    pressure among defendants for sales whenever it is in effect,
    during the strike or otherwise. To justify their conduct, defen-
    dants rely not on the neutral or positive effect on competition
    arising out of their agreement, but on other sources of com-
    petitive pressure—increased competition from other vendors
    and competition with one another for post-strike business. As
    explained above, it is wholly implausible that those factors
    would be sufficient to overcome the reduction in competitive
    pressure that necessarily results from the profit sharing agree-
    ment. Defendants’ agreement plainly removes a significant
    source of competitive pressure without giving rise to any
    comparable counter-source to replace it.11 Accordingly, Cali-
    11
    The obviously anticompetitive nature of defendants’ profit sharing
    agreement in a traditional market setting distinguishes it from the restraint
    in California Dental Association. Here, there is a long history of adjudg-
    ing profit sharing agreements to be anticompetitive and of demonstrating
    the validity of that conclusion. The unique limits on price and quality
    advertising by dentists that were at issue in California Dental Association
    might have been thought by some to reduce incentives to compete over
    9348                  CALIFORNIA v. SAFEWAY, INC.
    fornia has carried its burden by demonstrating the existence
    of a great likelihood of anticompetitive effects.
    Although California was not required to adduce empirical
    evidence of anticompetitive effects, given the nature of the
    restraint at issue in the case, the empirical evidence before us
    supports its contentions or is, at the least, of no substantial
    consequence. Defendants acknowledge diminished competi-
    tive behavior, such as discounting and advertising, during the
    period in which the profit sharing agreement was in effect.
    This, in all likelihood, resulted in at least some increase in, or
    some failure to reduce, the prices charged to the consumers.
    price or quality, because without such advertising it would be difficult for
    a dentist to inform potential customers about his advantages over his com-
    petitors and, thus, lowering his prices or expending resources to improve
    his quality might simply have reduced his profits from existing customers.
    However, the Court reasoned that the nature of the market for “profes-
    sional services” such as dental care was unique and that the circumstances
    made it difficult to compare services across providers and to verify price
    and service information, meaning that price and quality advertising might
    have been misleading, and misleading advertising itself poses dangers to
    competition. See Cal. Dental Ass’n, 
    526 U.S. at 771-72
    . Accordingly, the
    Court concluded, that because of the “professional context,” it was not
    implausible that, as a theoretical matter, the restriction on price advertising
    had either a positive effect or no effect on competition. See 
    id. at 774-75
    .
    The Court emphasized that theoretical claims of anticompetitive effects
    that are not evident or established in antitrust law must be carefully con-
    sidered and clearly explained in order to justify shifting the burden to
    defendants to show some procompetitive effect. See 
    id.
     at 775 n.12. Here,
    the subjective factors that the Court found were critical to the sale of pro-
    fessional services do not exist. Economic theory as well as a practical
    analysis of the factual circumstances make it clear that there is a high like-
    lihood that the profit sharing agreement had anticompetitive effects.
    Unlike California Dental Association, there is a clear theoretical basis for
    concluding that a profit sharing agreement would have anticompetitive
    effects, and, again unlike California Dental Association, there is no plausi-
    ble basis, theoretical or otherwise, for concluding that the profit sharing
    agreement had procompetitive effects, see infra section IV.2. Accordingly,
    the burden to demonstrate evidence of the restraints’ procompetitive
    effects falls on defendants, who do not meet it in any way.
    CALIFORNIA v. SAFEWAY, INC.                       9349
    See Declaration of Thomas R. McCarthy, Backup to ex. 7A;
    Declaration of Steven Lawler at ¶ 8; Declaration of Carla
    Simpson ¶¶ 6-7; Declaration of Charles Ackerman ¶¶ 15-19.
    Defendants explain this change in behavior by attributing it to
    the lack of personnel created by the strike, rather than to the
    profit sharing agreement. However, their expert, who relied
    on this explanation, performed no regression or other statisti-
    cal analyses, which are typical means of determining the
    effects of multiple variables, such as the labor dispute and the
    profit sharing agreement, on a single dependent variable, such
    as competitive behavior by defendants. See, e.g., Hemmings
    v. Tidyman’s Inc., 
    285 F.3d 1174
    , 1183-84 & n. 9 (9th Cir.
    2002). Instead, he simply looked at limited data from Albert-
    sons and declared that Albertsons “did a lot of discounting
    during the strike” and that it increased its use of certain dis-
    counting methods. See Declaration of Thomas R. McCarthy
    ¶¶ 51-53. Because his analysis lacks a discussion of how
    much discounting Albertsons would have done absent the
    profit sharing agreement, it is beside the point. California’s
    expert, who did perform regressions, asserted in his deposi-
    tion that those regressions revealed that competition between
    defendants during the strike was harmed by the profit sharing
    agreement. He further noted that Vons raised its prices despite
    suffering a dramatic drop in demand for its products, exactly
    the opposite of the lower prices that are expected when
    demand drops in a competitive marketplace.12
    12
    Defendants’ evidence purporting to show that employees charged with
    pricing during the dispute did not know about the profit sharing agreement
    and took no action because of it, which was relied upon by the district
    court, also fails to provide support for their contentions. Their evidence on
    this point is both skeletal and somewhat dubious. Defendants do not come
    close to demonstrating that all employees with power over pricing were
    ignorant of the agreement or took no action because of it. See, e.g., Decla-
    ration of Bryan Davis ¶ 3 (Albertsons employee describing himself as
    responsible only for the prices in a discreet category of groceries); Decla-
    ration of Carla Simpson ¶ 2 (Safeway employee describing herself as hav-
    ing responsibility only for implementing pricing established by another
    department). Moreover, early in the strike the Los Angeles Times pub-
    lished a front-page article revealing that the chains had agreed to share the
    9350                 CALIFORNIA v. SAFEWAY, INC.
    Given the obviously anticompetitive nature of defendants’
    profit sharing agreement, no empirical data about the effects
    of the agreement are necessary for “an enquiry meet for [this]
    case.” Nonetheless, a review of the empirical evidence in the
    record only increases the certainty that defendants’ agreement
    generated a great likelihood of anticompetitive effects, that it
    is implausible that such effects could be overcome or neutral-
    ized by the conduct of defendants or others during the term
    of the agreement, and that requiring a full rule of reason
    inquiry would be contrary to the efficient and effective imple-
    mentation of our antitrust laws.
    2.
    Where, as here, a “great likelihood of anticompetitive
    effects can easily be ascertained,” the burden of proof is
    shifted to the defendant to “to show empirical evidence of
    procompetitive effects.” Cal. Dental Ass’n, 
    526 U.S. at 770
    ,
    775 n.12; XI Areeda & Hovenkamp ¶ 1914d(1) at 355 (when
    financial burden of the strike. See Nancy Cleeland & Melinda Fulmer, In
    Tactical Move, Union Pulls Pickets From Ralphs, L.A. Times, Nov. 1,
    2003, at A1. More important, it would defeat entirely the efficiency goals
    underlying the existence of per se, quick look, and “meet for the case”
    analysis if defendants could preclude a summary finding, and proceed to
    full rule of reason analysis, simply by asserting that the employees in
    charge of pricing did not know about the profit sharing. Such assertions
    are easy to make, while proving or disproving who knew what, and
    whether the knowledge of a particular individual had any effect on
    whether the company acted in a competitive manner, would require
    exactly the sort of onerous and costly production of evidence that sum-
    mary review is meant to avoid. In any case, as noted above, the quick look
    inquiry is a probabilistic one: in order to place the burden on defendants
    to demonstrate that the agreement had a procompetitive effect, California
    need prove only that defendants’ agreement to share profits created a great
    likelihood of anticompetitive effects. Accordingly, even if the anticompe-
    titive effects had not come to pass because certain employees did not learn
    of the agreement or did not correctly calculate where the company’s inter-
    ests lay in light of the agreement, that fact would be immaterial to the
    result of our inquiry.
    CALIFORNIA v. SAFEWAY, INC.               9351
    “the restraint is of such a character that an anticompetitive
    effect may be presumed,” then “the only tolerance permitted
    to the defendant is to show” procompetitive effects). Procom-
    petitive effects include efficiency gains, the development or
    improvement of products, and other benefits to consumers
    and society. See XI Areeda & Hovenkamp ¶ 1912c(2) at 320.
    In California Dental Association, for instance, the Supreme
    Court saw a plausible procompetitive justification for the den-
    tist association’s restrictions limiting price and quality adver-
    tising in the potential of such restrictions to improve
    consumer information by eliminating false and misleading
    advertising. See 
    526 U.S. at 771-72
    .
    At this point comes defendants’ actual and least justifiable
    contention. The supermarkets assert that conduct that serves
    to reduce the cost of labor serves a procompetitive purpose,
    such as may excuse otherwise anticompetitive behavior. They
    contend that the procompetitive benefit of their agreement is
    that it increased their chances of winning the labor dispute
    and reducing the wages and benefits they would be required
    to pay to their employees, which in turn would increase their
    ability to lower prices and compete more effectively with
    other companies. See Declaration of Thomas R. McCarthy
    ¶ 10. Defendants’ proffered justification for their profit shar-
    ing arrangement is, in essence, a countervailing power
    defense that the restraint of trade is necessary in order to give
    them sufficient bargaining power to counteract the market
    power exercised by their striking workers and thereby to
    allow them to purchase their workers’ labor at a lower price.
    As California points out, however, the chain of contingen-
    cies linking defendants’ exercise of bargaining power to
    reduced prices for consumer purchases renders any such pro-
    competitive benefits of their profit sharing agreement purely
    speculative. Rule of reason examination of defendants’ coun-
    tervailing power defense is accordingly unnecessary. “Suffice
    it to say that the theoretical literature suggests that counter-
    vailing cartels seldom improve the welfare of consumers.”
    9352              CALIFORNIA v. SAFEWAY, INC.
    XII Hovencamp, Antitrust Law: An Analysis of Antitrust Prin-
    ciples and Their Application, ¶ 2015b at 158 (2d ed. 2000).
    More important, driving down compensation to workers in
    this way is not a benefit to consumers cognizable under our
    laws as a “procompetitive” benefit. Defendants do not pretend
    that they agreed to bargain in such a way that there will be a
    greater overall amount of labor purchased, for example
    because the transaction costs to purchase each unit of labor
    are lower when the supermarkets work together. Defendants’
    argument for why their profit sharing agreement is procompe-
    titive is instead, essentially, that it increases their bargaining
    power relative to striking workers in order to buy their labor
    at a lower price. In this way, the profit sharing arrangement
    resembles a cartel on the buyer side of the market.
    The Supreme Court has made clear, however, that because
    antitrust law operates to correct all distortions of competition,
    it condemns market actors who distort competition, whether
    on the buyer side or seller side. See Weyerhaeuser Co. v.
    Ross-Simmons Hardwood, 
    549 U.S. 312
    , 322 (2007)
    (“Predatory-pricing and predatory-bidding claims are analyti-
    cally similar. . . . This similarity results from the close theo-
    retical connection between monopoly and monopsony.”).
    Accordingly, the Court has long understood the Sherman Act
    to condemn buyer side cartels. See, e.g., American Tobacco
    Co. v. United States, 
    328 U.S. 781
     (1946); Mandeville Island
    Farms v. American Crystal Sugar Co., 
    334 U.S. 219
     (1948);
    and certain exercises of single-firm buyer power. See Klor’s,
    Inc. v. Broadway-Hale Stores, Inc., 
    359 U.S. 207
     (1959). A
    central problem with allowing a countervailing power defense
    to justify buyer collusion is that such defense would be raised
    “in almost any case where the selling market is not perfectly
    competitive,” such that all “[n]on-immune employers would
    claim the right to collude on wages because their employees
    are organized into unions and thus have significant power.”
    XII Hovencamp ¶ 2015b at 156.
    CALIFORNIA v. SAFEWAY, INC.                       9353
    In any event, defendants’ argument is wholly unpersuasive
    in light of our nation’s labor laws and policies. It is a primary
    objective of these laws to protect the rights and interests of
    working persons, and to enable them to obtain a fair and
    decent wage through collective action.13 Reducing workers’
    wages and benefits is hardly an objective that would justify a
    violation of our antitrust laws or constitute a benefit to the
    public so substantial as to overcome the deleterious conse-
    quences of anticompetitive conduct. There is no reason, even
    if we had the authority to do so, to set aside the ordinary prin-
    ciples governing antitrust law in order to unbalance the care-
    fully developed legal structures relating to our laws governing
    collective bargaining; nor is there any reason or justification
    for assuming the function of increasing the economic power
    of employers to the disadvantage of their employees. To the
    extent that anticompetitive conduct is exempted from the
    application of our antitrust laws in order to facilitate the oper-
    ation of labor/management processes, even the majority holds
    that it does not provide an escape device for the employers’
    conduct in this case. Defendants have not offered, much less
    demonstrated, any way in which their agreement generates
    procompetitive effects.
    13
    “One of the important social advantages of competition mandated by
    the antitrust laws is that it rewards the most efficient producer and thus
    ensures the optimum use of our economic resources. This result, as Con-
    gress [has] recognized, is not achieved by creating a situation in which
    manufacturers compete on the basis of who pays the lowest wages.”
    United Mine Workers of Am. v. Pennington, 
    381 U.S. 676
    , 724 (1965)
    (Goldberg, J., dissenting and concurring); see also 
    15 U.S.C. § 17
     (“The
    labor of a human being is not a commodity or article of commerce.”);
    Polygram Holding, Inc. v. FTC, 
    416 F.3d 29
    , 38 (D.C. Cir. 2005) (“A
    restraint cannot be justified solely on the ground that it increases the prof-
    itability of the enterprise . . . .”); Law v. NCAA, 
    134 F.3d 1010
    , 1023 (10th
    Cir. 1998) (“[M]ere profitability or cost savings have not qualified as a
    defense under the antitrust laws.”). Depressing wages is not of societal
    benefit; it simply harms working people and their families, a significant
    part of the group that has come to be known as “the middle class,” and
    which is experiencing enough economic travail without the added unlaw-
    ful actions of those conspiring to violate the antitrust laws.
    9354              CALIFORNIA v. SAFEWAY, INC.
    It is little wonder that the majority expressly declines to
    address the “grocers[’] argu[ment] that the RSP has procom-
    petitive benefits in the form of lower prices for consumers as
    a result of the grocers’ ability to negotiate a more favorable
    contract on labor costs.” Maj. Op. at 9313 n.17. Were defen-
    dants’ proffered justification accepted as a ground for requir-
    ing full-blown rule of reason inquiry, colluding firms could
    evade quick look condemnation, without in any way increas-
    ing real efficiency or reducing costs to the consumer. Firms
    like the supermarkets that participate in markets for both buy-
    ing (labor) and selling (groceries), and engage in a restraint of
    trade that has distorting effects in both, cannot avoid quick
    look review of anticompetitive conduct simply by positing
    that they could conceivably pass on to consumers in the sell-
    ing market any private gains such firms may achieve by
    restraining competition in the buying market. Allowing them
    to do so would lead to the absurd result that conduct which
    restrains more competition, in the sense that it distorts compe-
    tition in both the buying and selling markets, would be subject
    to less demanding scrutiny than would be a comparable
    restraint that distorted just one market.
    3.
    Defendants have put forward no plausible procompetitive
    effects to overcome or neutralize the great likelihood of anti-
    competitive effects that would result from the implementation
    of their profit sharing agreement. That likelihood is evident
    from a plain reading of the agreement’s terms, an examination
    of the ample case law regarding profit sharing agreements, a
    rudimentary knowledge of economics, and an analysis of the
    “circumstances, details, and logic” of the agreement. In the
    absence of a procompetitive justification that outweighs the
    likelihood of substantial anticompetitive effects, I conclude
    with confidence and even with certainty that the profit sharing
    agreement violates § 1 of the Sherman Act. I also conclude
    with the same measure of confidence and certainty that deny-
    ing California the injunction to which it is entitled, simply
    CALIFORNIA v. SAFEWAY, INC.              9355
    because the parties did not engage in an extremely costly, bur-
    densome, and utterly unnecessary battle of economic experts
    under rule of reason review, is contrary to the fundamental
    policies underlying our antitrust law, and encourages future
    antitrust violations by these defendants and others who may
    seek to suppress the rights of their employees.
    Accordingly, I dissent in part.
    

Document Info

Docket Number: 08-55671, 08-55708

Judges: Kozinski, Schroeder, Reinhardt, Graber, McKeown, Fisher, Gould, Tallman, Rawlinson, Clifton, Smith

Filed Date: 7/12/2011

Precedential Status: Precedential

Modified Date: 10/19/2024

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