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38 Loy. U. Chi. L.J. 405 (2006-2007)
Communication and Concerted Action

handle is hein.journals/luclj38 and id is 431 raw text is: Communication and Concerted Action William H. Page* ABSTRACT It is a familiar scenario in U.S. antitrust litigation: The plaintiffs allege that a pattern of identical pricing (or refusals to deal) is concerted and therefore per se illegal; the defendant responds that the practice is merely consciously parallel or interdependent and therefore legal. Under U.S. law, to avoid summary judgment or judgment as a matter of law, a plaintiff must produce a plus factor, evidence that tends to exclude the possibility that the defendants' actions were merely interdependent. Courts have identified various plus factors-for example, evidence that the alleged conduct was against the defendant's interest unless it was pursuant to an agreement-but they have been notably vague about what exactly constitutes concerted action. Obviously, the Sherman Act does not require the plaintiff to prove that the defendants formed a legally enforceable contract-the Sherman Act, after all, makes agreements illegal and therefore unenforceable. But beyond that, the law tells us little. Courts still quote the Supreme Court's sixty-year-old formulation that a Sherman Act agreement requires only a unity of purpose, a common design and understanding, or a meeting of the minds. Unfortunately, however, this language could easily be interpreted to condemn conscious parallelism. In this article, I argue that concerted action should be defined to require communication among rivals. I begin by describing the development of the distinction in law and theory between consciously parallel and concerted action. I then show that the received definitions of concerted action leave courts and especially juries with inadequate guidance. Economic expert testimony does not fill the void, because Marshall M. Criser Eminent Scholar, University of Florida Levin College of Law. I would like to thank Oliver Black, Roger Blair, Tom Cotter, Michael Freed, Christine Klein, John Lopatka, Gregg Polsky, Mark McLaughlin, and Spencer Waller for helpful comments. I also benefited from comments at a workshop at the University of Florida Levin College of Law and at the Loyola University Chicago conference on the legacy of Matsushita.

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