“Feeble Even By Normal Litigation Standards”

It seems that Ashby Jones opened the floodgates with his recent Wall Street Journal article on Kamakahi v. ASRM, the antitrust suit challenging the ethical guidelines on egg donor compensation promulgated by the American Society For Reproductive Medicine as an illegal price fixing agreement in violation of the Sherman Act. Since that article appeared, other news sources have picked up on the suit.

At Slate, for example, Eric Posner argues that the plaintiffs are not donors, but sellers, and deserve a fair price for their services. Says Posner: “Price-fixers always offer an excuse for their behavior, but these arguments [raised by the defense] are feeble even by normal litigation standards.”

And yesterday, the Legal Broadcast Network ran a video on the case, in which I argue that, were it not for the unusual nature of the product/service at issue, there would be little question that the pricing guidelines were an illegal, per se violation of the Sherman Act. The print version is here, but you can watch the video below.

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