Matsushita and the Role of Economists with Regard to Proof of Conspiracy
![handle is hein.journals/luclj38 and id is 523 raw text is: Matsushita and the Role of Economists with
Regard to Proof of Conspiracy
Daniel R. Shulman*
Now that Matsushita Electric Industrial Co. v. Zenith Radio Corp.'
has had twenty years to mature, it is apparent that economists have an
important role to play in providing testimony on issues relating to the
presence or absence of concerted action. That role, however, is not
without significant limitations, which must be carefully observed if the
economic testimony is to have value, relevance, and admissibility as
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.2
Monsanto Co. v. Spray-Rite Service Corp.3 teaches that to make a
submissible case, the antitrust plaintiff should present direct or
circumstantial evidence that reasonably tends to prove that the . . .
[defendants] 'had a conscious commitment to a common scheme
designed to achieve an unlawful objective.' In addition, [t]here must
be evidence that tends to exclude the possibility that the
[defendants] were acting independently.4 Matsushita proceeds from
these premises to add two further principles. First, conduct as
consistent with permissible competition as with illegal conspiracy does
not, standing alone, support an inference of antitrust conspiracy.5 In
other words, in antitrust, the tie goes to the fielder, not the runner.
Second, if the factual context renders respondents' claim
implausible-if the claim is one that simply makes no economic
sense-respondents must come forward with more persuasive evidence
to support their claim than would otherwise be necessary.6
Daniel R. Shulman is a member of Gray, Plant, Mooty, Mooty & Bennett, P.A.'s antitrust, trial
practice, and complex litigation groups, in Minneapolis, Minnesota.
1. 475 U.S. 574 (1986).
2. FED. R. EVID. 401.
3. 465 U.S. 752, 764 (1984).
4. Id.
5. Matsushita, 475 U.S. at 588.
6. Id. at 587.](ViewImageLocal?handle=hein.journals/luclj38&div=26&collection=&method=preview&ext=.png&size=3)
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Matsushita and the Role of Economists with Regard to Proof of Conspiracy
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