Surrealpolitik

Surrealpolitik: Research Handbook on the Economics of Antitrust Law

Author: Einer Elhauge

London: Edward Elgar (2012)

Quick Summary

My interest in this book is the description of how charges of conspiracy are handled in antitrust law, i.e., in a matter-of-fact evidence-based fashion rather than with smirks and presumptions of lunacy.

Quotes

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Since Matsushita, Circuit Courts have put forward somewhat distinct formulations of the summary judgment test, yet the formal structure of the tests is remarkably consistent across jurisdictions. Each test contains the following elements. First, in a section 1 conspiracy case in which the plaintiff lacks direct evidence of an agreement, the plaintiff must show plus factors in addition to parallel conduct. Plus factors are discussed, circularly, as that class of evidence necessary to transform evidence of parallel conduct into a viable conspiracy case where the plaintiff lacks direct evidence of an agreement. Second, defendants con provide counter-explanations of such evidence to rebut the inference of conspiracy in favor of an inference of independent conduct. Third, the Matsushita/Monsanto 'tends to exclude' metric operates as the final standard by which the entirety of the evidence is evaluated. The totality of the plaintiff's plus factor and parallel conduct evidence must be sufficiently probative that, based on the record at summary judgment, the inference of conspiracy is stronger than the inference of independent conduct...

Where the plaintiff lacks direct evidence of conspiracy, she must present circumstantial evidence -- plus factors -- that would revise the probability of conspiracy upward from the prior baseline that a fact-finder would infer from mere evidence of parallel conduct...A plaintiff must assert at least one plus factor (PF) such that the probability of conspiracy given the parallel conduct and the plus factor is greater than the probability of such conspiracy given the parallel conduct alone...

That is, the plus factor is any evidence that would make a rational trier of fact revise upward her estimated probability that the defendants engaged in concerted, conspiratorial action. A defendant can rebut the presumption that this evidence is sufficient to show conspiracy by proffering counter-explanations of the evidence to show that the plus factor is equally (or more) consistent with independent conduct...

Whether or not the plus factor leads us to revise the probability of conspiracy upward from its level given only parallel conduct depends on whether or not the plus factor in combination with parallel conduct is more likely to be associated with conspiratorial or independent action. The second stage of the Matsushita assessment thus allows defendants to contest the relative values...The court then applies the 'tends to exclude' standard as requiring that the totality of the plaintiff's proof rise to a substantive level at which the inference of conspiracy is stronger than the inference of independent conduct. (page 224)
Tags: [Conspiracy]