Preface

• Pages: 11-13

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PREFACE

At its broadest level of generality, Section 1 of the Sherman Act—the

mainstay of federal antitrust laws governing agreements—prohibits

unreasonable contracts, combinations, and conspiracies in restraint of

trade. Since its passage in 1890, courts, government enforcers, and private

parties have struggled with Section 1’s sparse language but broad

mandate, and a rich and varied precedent defining the antitrust treatment

of agreements has accumulated over time.

This book focuses upon part of that mosaic: How the courts handle the

issue of proving an agreement. That issue is step one. Without an

agreement, there is no violation of Section 1.

In the antitrust context, however, the concept of agreement is not

necessarily straightforward. Agreements may be express or implied,

formal or informal, highly specified or not, simple or complex, written,

spoken, or even entered into by a “wink of an eye”—so long as there is

clear evidence of a conscious commitment to a common scheme.

This book is intended to be a guide to the current state of federal

antitrust law on proof of agreement. Chapter I begins by examining the

congressional intent behind Section 1 and how early Supreme Court

decisions interpreted the statute in order to identify the types of agreements

the law was meant to regulate. Chapter II addresses the fundamental

definitional question of what constitutes an agreement—or, as the

Supreme Court has termed it, a “conscious commitment to a common

scheme.” It examines how the definition may be affected by either the

horizontal or vertical relationships of parties to an agreement and analyzes

issues of proof related to a party’s participation in or withdrawal from a

conspiracy. Chapter III examines basic issues in proving an agreement,

either through direct evidence or circumstantial evidence, such as

consciously parallel behavior coupled with “plus” factors. Chapter IV

discusses recurring and import ant issues of proof, including how the

Federal Rules of Evidence address statements and actions of alleged co-

conspirators, i ncluding an alleged co-conspirator’s invocation of its Fifth

Amendment right against self-incrimination, participation in the U.S.

Justice Department’s Antitrust leniency program or guilty plea. Chapter V