University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 2020 Direct Evidence of a Sherman Act Agreement William H. Page University of Florida Levin College of Law,
[email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Antitrust and Trade Regulation Commons Recommended Citation William H. Page, Direct Evidence of a Sherman Act Agreement, 83 Antitrust L.J. 201 (2020) This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact
[email protected]. DIRECT EVIDENCE OF A SHERMAN ACT AGREEMENT WILLIAM H. PAGE* The Supreme Court once said, “[C]ircumstantial evidence is the lifeblood of antitrust law.”1 That was in a merger case, but the observation could also apply to price-fixing litigation under Section 1 of the Sherman Act.2 Claims of price fixing and other per se violations of Section 1 usually turn on whether circumstantial evidence proves that the defendants formed an agreement—the “contract, combination . or conspiracy” the statute requires.3 Motions for summary judgment test the legal sufficiency of the plaintiffs’ evidence of agreement.4 Under Matsushita, courts resolving these motions usually rely on a framework of “plus factors”5 to evaluate whether the plaintiff’s circumstan- tial evidence raises a plausible inference of agreement, one that “tends to ex- clude the possibility”6 the defendants were simply pricing interdependently, as oligopolists typically (and lawfully) do.7 Under Twombly, courts faced with * Marshall M.