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41 Antitrust L.J. 84 (1971-1972)
Price Fixing - Proof and Inference

handle is hein.journals/antil41 and id is 140 raw text is: PRICE FIXING-PROOF AND INFERENCE By MURRAY S. MONROE Member of the Ohio Bar As I prepared for this talk by reading some of the recent cases and articles on this subject, I was impressed by at least one fact. There are a limited number of specifics which can be said to be common to anti- trust cases-even price fixing cases. Factually, these cases generally cover time periods, range over a wide variety of events and by their nature are complex. Legally, recent decisions have substantially lessened plaintiff's burden of proof, not only as to the substantive violations but also as to the two remaining elements-causation and damage. The courts have also made it increasingly difficult to prove a defense. The advantage particularly lies with a small plaintiff against a large defendant. However, I think that there are few, if any, other common denomi- nators in this type of case. No two antitrust cases are alike, particularly in the case of conspiracies, as to the nature and extent of the evidence. As a result, it is impossible to state categorically, or for that matter, with much precision as to how a price fixing case should be proven. So I will attempt to deal with some general principles and hope that there will be a little something for everybody. With that thought in mind, I will outline some of the legal require- ments of the proof, and then discuss some of the preliminaries to the trial and the type of evidence which could be introduced at trial. I. PROOF OF CONSPIRACY A. Legal Requirements It is still necessary that an agreement be found to exist for there to be a violation of Section 1 of the Sherman Act.1 In addition, a person does not become liable as a conspirator unless he knows of the existence of the conspiracy, agrees to become a party to the conspiracy and with knowledge of it commits some act in furtherance thereof.2 As far as the defendants' lawyers here present, this is undoubtedly the high water mark of my remarks. The agreement need not be in writing, it need not be made at a 1 United States v. Ward Baking Company, 224 F. Supp. 66 (E.D. Pa. 1963). 2 Jones v. United States, 251 F.2d 288, 293 (10th Cir. 1958).

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