2017] KEEP CALM AND CAUSATION ON 2293
his or her injury was in fact caused by a defendant’s antitrust violation.1 While
establishing causation is universally required in all civil claims, attempting to
either prove or assess causation in the antitrust context is particularly
challenging. The difficulty of proving a causal connection is most often felt in
the context of motions for summary judgment, where even courts appear
unsure of what level and form of proof is required to satisfy the causation
element. Amidst this confusion, plaintiffs claiming a Section 1 conspiracy may
have to overcome an additional burden of proof—namely, that it is more
likely than not that the defendant in fact caused the plaintiff’s injury.2
As such, there is currently a large degree of inconsistent analysis and
outcomes in rulings on motions for summary judgment in Section 1 cases.
More specifically, two polar-opposite approaches have created a spectrum of
inconsistency: under the first, courts simply presume that a plaintiff has
sufficiently established a causal connection once the judge deems the other
elements can be reasonably inferred; and under the other, courts strictly
require a determination as to whether a plaintiff has proved a causal
connection to a reasonable certainty.3
In early 2014, this inconsistency came to light in a Sixth Circuit decision
that reversed a grant of summary judgment against dairy retailers who alleged
that a group of milk wholesalers had illegally fixed prices in violation of
Section 1 of the Sherman Act.4 While the district court found that the dairy
retailers’ expert failed to show that the alleged conspiracy did in fact cause
milk prices to increase,5 the court of appeals found that because the re was
enough evidence to reasonably infer a conspiracy and an unexplained rise in
prices and thus an injury, the price increase “clearly result[ed]” from the
price-fixing conspiracy.6 The defendants petitioned the Supreme Court to
1. See, e.g., El Aguila Food Prods., Inc. v. Gruma Corp., No. 04-20125, 2005 WL 1156090,
at *2 (5th Cir. May 17, 2005) (“The fact of damage requirement is one of causation; the plaintiff
must show that the defendant’s unlawful conduct was a material cause of injury to its business.”);
Abcor Corp. v. AM Int’l, Inc., 916 F.2d 924, 931 (4th Cir. 1990) (affirming summary judgment
because plaintiffs “failed to show a causal link to anticompetitive activity”).
2. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986)
(“To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages
for a violation of § 1 must present evidence ‘that tends to exclude the possibility’ that the alleged
conspirators acted independently.” (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S.
752, 764 (1984))); Monsanto, 465 U.S. at 764 (“[S]omething more than evidence of complaints
is needed. There must be evidence that tends to exclude the possibility that the [two defendants]
were acting independently.”).
3. See infra Part III.
4. In re Se. Milk Antitrust Litig., 739 F.3d 262, 268 (6th Cir. 2014).
5. In re Se. Milk Antitrust Litig., No. 2:08–MD–1000, 2012 WL 1032797, at *6 (E.D. Tenn.
Mar. 27, 2012) (“Further, it appears to the Court that [the plaintiffs’ expert] cannot, and did
not, measure how prices would have increased in the absence of a conspiracy. He simply
compared pre-merger prices to post-merger prices. In short, [the expert’s] analysis does not
create a material issue of fact on the question of whether the price i ncreases were ‘by reason of’
an illegal conspiracy in violation of the antitrust laws . . . .”), rev’d, 739 F.3d 262 (6th Cir. 2014).
6. In re Se. Milk Antitrust Litig., 739 F.3d at 286 (“[W]hen competition is limited purs uant
to an agreement and customers are punished through higher prices, the in jury clearly results
from anticompetitive conduct.”).