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Proof of Conspiracy Under Federal Antitrust Laws


; American Bar Association


Libro - - A23


Second edition


[No definido]

Fecha Publicación



American Bar Association




Chapter I. Introduction A. The Text and Background of Section 1 1. Why Congress Determined That a Federal Statute Was Needed 2. Legislative Background of Section 1 3. Common Law and the Content of Section 1 a. contracts in Restraint of Trade b. Combinations in Restraint of Trade e. Conspiracies in Restraint of Trade B. Early Decisions Interpreting Section 1 D. Other Antitrust Statutes and Laws Chapter II. What Constitutes Conspiracy? A. What is an Agreement? 1. Early Supreme Court Cases Defining Antitrust Agreements 2. The Modem Standard: Monsanto v. Spray-Rite Service Corp B. What Is a Conscious Commitment and a Common Scheme? 1. A Conscious Commitment a. Criminal Enforcement of Section 1  B. Civil Actions under Section 1 2. For of Agreement a. Express Agreements b. TacitNon-Express Agreements 3. Horizontal Agreements a. Horizontal Restraint Cases b. Vertical Restraint Cases c. Hybrid Horizontal and Vertical Restraint Cases C. Proof of Participation in Conspiracy. 1. Participation in an Existing Conspiracy. A. Voluntary vs Coerced Participation b. There a “Slight Evidence” Rule? 2 Unwitting Beneficiary of a Conspiracy 3. Withdrawing from an Existing Conspiracy  a. Burden of Proof Of Withdrawal b. Elements of Proof of Withdrawal c. What Constitutes the Affirmative Conduct Necessary to Withdraw d. Effect of Withdrawal on Statute of Limitations e. Effect of Withdrawal on Damages f The Difficulty of Withdrawal. Chapter III Proof of the Existence of a Conspiracy A. Proving an Agreement B. Using Direct Evidence to Prove an Agreement C. Circumstantial Evidence Must “Tend to Exclude” the Possibility of Independent Action D. Examples of Plaintiffs Successfully Using Circumstantial Evidence to Prove the Existence of an Agreement E. How Courts Evaluate Whether Defendants’ Conduct Raises a Permissible Inference of an Agreement 1. Plausibility 2. Conscious Parallelism. a. Proof of Parallel Behavior b. Proof That Parallel Behavior Was Conscious e. Proof of Consciously Parallel Behavior Is Not Sufficient 3. Plus Factors a. Actions Against the Defendant’s independent Self-Interest b. Motive to conspire c. Opportunity to Conspire d. Market Concentration and Structure. e. Pretextual Explanations for Anticompetitive Conduct f. Coordinating Price Announcements g. Sharing of Price Information h. Signaling i. Involvement in Other Conspiracies j. Criticism of the Current Plus-Factor Framework. Chapter IV The Special Issues of Coconspirator Evidence and Parallel Government Enforcement A. Statements by Coconspirators 1. Bourjaily v. United States 2. The Current Rule: Federal Rule of Evidence 801(d)(2)(E) a. “A Statement by a Coconspirator of a Party” b. “During the Course” of the Conspiracy c. “In Furtherance of the Conspiracy” B. Effect of Witness Invocation of Fifth Amendment Rights 1. Admissibility of Parties’ Invocation of Fifth Amendment in Civil Actions 2. Admissibility of Non-Parties’ Invocation of Fifth Amendment in Civil Actions C. Effects of Participation in Leniency Programs and Plea Agreements 1. Leniency Program Participants 2. Alleged Coconspirators of Leniency Program Participants D. Effect of Parallel U.S. Government Actions 1. Collateral Estoppel 2. Prima Facie Evidentiary Effects E. Effect of Parallel State Government Actions Chapter V Forms of Joint Conduct and Collaboration A. Identifying Conspiracy Within Corporate Families 1. A Company and Its Wholly Owned Subsidiary 2. A Company and Its Employees 3. A Company and Its Multiple Wholly Owned Subsidiaries 4. A Company and its Partially-Owned Affiliate 5. A Company and lts Independent DealersDistributors 6. Companies with CommonOverlapping Equity Holders B. Identifying Conspiracy Within Particular Types of Ventures 1. Joint Ventures 2. Networks 3. Joint Buying, SellingMarketing Arrangements 4. Standards Setting Organizations 5. Health-Care Collaboration 6. Cooperative Research Agreements 7. Trade Associations 8. State Actors 9. Spots Leagues Chapter VI Initial pleading A. Historical Overview of Pleading in Federal Courts. 1. Pleading before the Federal Rules of Civil Procedure 2. Procedure as Drafted under Federal Rules of Civil Procedure B. The Supreme Court Sets the Standard for a Rule 8 pleading 1. Conley v. Gibson. 2. Conley v. Gibson as applied in antitrust actions C Twombly Interprets Rule 8(a) D. In the wake of Twombly 1. Policy Rationales Motivating a shift in pleading Standard a. Costs to Defendants b. Judicial Failure to Manage Cases 2. Pleading an Antitrust Claim Post-Twombly a Direct Allegations of a Conspiracy b. Evidence of Parallel Conduct and Allegations of Complex and Historically Unprecedented Changes in Pricing Structures Made for No Other Discernible Reason c. Evidence of Parallel Conduct and Factual Allegations Placed in a Context That Raises a Suggestion of a Preceding Agreement E. Clarification of Twombly: Ashcroft v. Iqbal 1. Overview of lqbal 2. Illuminating Twombly’s Two Working Principles F. Lower Court Trends G. Implications for Current Pleading Practices 1. Filing Amended Complaints 2. Delaying the Race to the courthouse 3. State Antitrust Laws Chapter VII Summary Judgment in Conspiracy Cases A. Historical Context from Poller to Matsushita B. Legal considerations in Moving for Summary Judgment in Conspiracy Cases 1. Direct Evidence of Conspiracy 2 Circumstantial Evidence of a Conspiracy a. Parallel Behavior: Insufficient by Itself to Establish Conspiracy b. Other Forms of Circumstantial Evidence 3. Plausibility of Conspiracy C. How Courts Apply Matsushita: a Circuit-by-Circuit Summary U. Further Considerations in Advocating forAgainst Summary Judgment 1. Practical Barriers to Obtaining Summary Judgment 2. Use of Experts a. Experts on Circumstantial Evidence: The Rationality of Behavior b. Expert Testimony on the Ultimate issue: Admissibility of Legal Conclusions e. Summary Judgment as Gatekeeper of Expert Evidence Chapter VIII Economic Expert Testimony A. The Use of Economic Evidence to SupportDetract from an Inference of Conspiracy B. The Distinction Between Tacit Collusion and Explicit Collusion C. Economic Analysis of the Likelihood of Collusion 1. The Central Problem for Successful Collusion 2. Structural Conditions for Successful Collusion 3. Susceptibility to Collusion D. Economic Analysis of Market Outcomes May Be Used to DetectInfer Collusive Behavior 1. Analysis of Data on Prices 2. Analysis of Data on Output and Capacity 3. Analysis of Market Shares 4. Analysis of the Economic Rationality of Alleged Collusion 5. Analysis of Disclosure and Exchange of Nonpublic  Information 6. Analysis of Whether Observed Behavior Is Consistent with Unilateral incentives E. The Use of Econometrics to Infer Collusive Conduct and Estimate Its Impact 1 Alternate Reduced Form Models a “Before-and-After” b Predictive Models c. Benchmark Comparisons d. Structural Breaks in the Relationship between Price and cost 2. Reduced Form Vs. Structural Models 3. Best Practices for Econometric Models 4. A Disconnect Between Bids and Costs 5. Inexplicable Gap Between Winning and Losing Bids F. The Standards for Admissibility of Expert Testimony in Antitrust Conspiracy Cases 1. Qualifications 2. Reliability 3. Fit. Chapter IX Trying Conspiracy Cases A. Pretrial Issues 1. Jury Consultants 2. Pretrial Motions B. Special Considerations in Cases Involving Criminal Allegations C. Juror Perceptions and Predispositions D. Proving Knowing Participation in an Unlawful Agreement 1. Direct Evidence vs. Circumstantial Evidence 2. Types of Circumstantial Evidence: Competitor Communications and Pricing Practices 3. The Problem of Parallel Conduct 4. Special Difficulties a. Defending a Corporation b. Proving Knowing Participation in a Conspiracy e. Proving Withdrawal from a Conspiracy E. Juror Comprehension of Economic Testimony 1. General Principles 2. Persuading the Jury Through Effective Direct Examinations of an Economic Expert a. Substance b. Stile 3. Persuading the Jury Through Effective Cross Examination of an Economic Expert 4. Juror Reaction to Expert Testimony 


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