Section 1 of The Sherman Act
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Chapter 2
SECTION 1 OF THE SHERMAN ACT
A. Contract, Combination, or Conspiracy
1. Instruction 1: Definition, Existence, and Evidence
Plaintiff alleges that defendant participated in a conspiracy to restrain
trade by [alleged conduct or restraint]. A conspiracy is an agreement or
understanding between two or more persons to restrain trade [in the way
alleged by plaintiff].
Plaintiff must prove both of the following elements by a
preponderance of the evidence:
(1) that the alleged conspiracy existed; and
(2) that defendant knowingly became a member of that conspiracy.
To act knowingly means to participate deliberately, and not
because of mistake or accident or other innocent reason.
The basis of a conspiracy is an agreement or understanding between
two or more persons.1 An agreement or understanding between two or
more persons exists when they share a commitment to a common scheme.
To establish the existence of a conspiracy, the evidence need not show that
its members entered into any formal or written agreement. The agreement
itself may have been entirely unspoken. A person can become a member
without full knowledge of all of the details of the conspiracy, the identity
of all of its members, or the parts such members played in the charged
conspiracy. The members of the conspiracy need not necessarily have met
together, directly stated what their object or purpose was to one another,
or stated the details or the means by which they would accomplish their
purpose. To prove a conspiracy existed, the evidence must show that the
alleged members of the conspiracy came to an agreement or understanding
among themselves to accomplish a common purpose.
A conspiracy may be formed without all parties coming to an
agreement at the same time [such as where competitors separately accept
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14 Model Jury Instructions in Civil Antitrust Cases
invitations to participate in a plan to restrain trade]. Similarly, it is not
essential that all persons acted exactly alike, nor is it necessary that they
all possessed the same motive for entering the agreement.2 It is also not
necessary that all of the means or methods claimed by plaintiff were
agreed upon to carry out the alleged conspiracy, nor that all of the means
or methods that were agreed upon were actually used or put into operation,
nor that all the persons alleged to be members of the conspiracy were
actually members. It is the agreement or understanding to restrain trade [in
the way alleged by plaintiff] that constitutes a conspiracy. Therefore, you
may find a conspiracy existed regardless of whether it succeeded or failed.3
Plaintiff may prove the existence of the alleged conspiracy through
direct evidence, circumstantial evidence, or both. Direct evidence is
explicit and requires no inferences to establish the existence of the alleged
conspiracy.4
Direct evidence of an agreement may not be available, and therefore a
conspiracy also may be shown through circumstantial evidence. You may
infer the existence of a conspiracy from the circumstances, including what
you find the alleged members actually did and the words they used. Mere
similarity of conduct among various persons, however, or the fact that they
may have associated with one another and may have met or assembled
together, does not by itself establish the existence of a conspiracy. If they
acted similarly but independently of one another, without any agreement
among them, then there would not be a conspiracy.
In determining whether an agreement or understanding between two
or more persons has been proved, you must view the evidence as a whole
and not piecemeal.
NOTES
These instructions generally use the term “conspiracy” to describe the alleged
arrangement among defendants. Section 1 of the Sherman Act, however,
proscribes contracts, combinations, and conspiracies in restraints of trade, and
therefore the terminology of the instructions should be adjusted to fit the facts of
a particular case. In addition, while the term “conspiracy” may be appropriate
where the conduct is per se unlawful, the term may be unfairly prejudicial to
defendants in other cases, particularly where the alleged conduct might be legal
even if undertaken jointly. In such cases, the court should substitute the word
“agreement” or “contract” as appropriate.
1. See Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984); see
also Am. Needle, Inc. v. Nat’l Football League, 560 U.S. 183, 195-96 (2010)
(Section 1 of the Sherman Act does not proscribe unilateral activity; only
Section 1 of the Sherman Act 15
“independent centers of decisionmaking” are capable of conspiring under § 1)
(quoting Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769
(1984)); see also 1 ABA SECTION OF ANTITRUST LAW, ANTITRUST LAW
DEVELOPMENTS 3-5 (7th ed. 2012).
2. See United States v. Paramount Pictures, 334 U.S. 131, 161 (1948)
(“acquiescence in an illegal scheme” violates the Sherman Act); Spectators’
Commc’n Network v. Colonial Country Club, 253 F.3d 215, 220 (5th Cir. 2001)
(“Antitrust law has never required identical motives a mong conspirators, and even
reluctant participants have been held liable for conspiracy.”).
3. See United States v. Gen. Motors Corp., 384U.S. 127, 142-43 (1966);
Paramount Pictures, 334 U.S. at 142; Interstate Circuit, Inc. v. United States, 306
4. Where plaintiff attempts to prove the existence of a conspiracy through
direct evidence, the court should instruct the jury that direct evidence of a
conspiracy must be evidence that is explicit and requires no inferences to establish
the proposition or conclusion being asserted. See In re Ins. Brokerage Antitrust
Litig., 618 F.3d 300, 324 n.23 (3d Cir. 2010). Examples of direct evidence include
witness testimony that explicitly refers to an understanding between competitors,
documents showing an unlawful agreement, guilty pleas, and admissions by a
defendant. See ABA SECTION OF ANTITRUST LAW, PROOF OF CONSPIRACY UNDER
FEDERAL ANTITRUST LAWS 53-56 (2010); see also 15 U.S.C. § 16(a) (prior
judgment in favor of government in antitrust case has prima facie evidentiary
effect in subsequent private suits); Tunica Web Adver. v. Tunica Casino
Operators Ass’n, 496 F.3d 403, 410 (5th Cir. 2007) (finding direct evidence of a
conspiracy where e-mails stated that the parties had entered into a “gentlemen’s
agreement” not to deal with another company); Champagne Metals v. Ken-Mac
Metals, 458 F.3d 1073, 1083-84 (10th Cir. 2006) (threat by a distributor to a
supplier that all distributors would take their business elsewhere if the supplier
continued to sell to a disfavored distributor constituted “direct evidence” of an
agreement); United States v. Taubman, 297 F.3d 161, 165 (2d Cir. 2002) (holding
that there was direct evidence of agreement where witness “testified that she was
directed by [defendant] to meet with [a competitor] and work out the specifics of
the price-fixing agreement”); Petruzzi’s IGA Supermarkets v Darling-Delaware
Co., 998 F.2d 1224, 1234 (3d Cir. 1993) (summary judgment reversed, direct
evidence cited by the court included that one of the conspirators had told the
witness that “there was a mutual agreement and understanding with Darling, not
to bother their accounts”) (emphasis in original); Arnold Pontiac-GMC, Inc. v.
Budd Baer, Inc., 826 F.2d 1335, 1338 (3d Cir. 1987) (holding that a memorandum
describing meetings with coconspirators is direct, not circumstantial, evidence of
conspiracy); In re Urethane Antitrust Litig., 913 F. Supp. 2d 1145, 1153-54 (D.
Kan. 2012) (finding direct evidence of a conspiracy where an executive “stated
that he had met with competitors . . . and reached agreements to set prices and
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