Last spring there was growing concern in the wake of the Seventh Circuit’s decision in In re High Fruc-tose Corn Syrup1 that the courts might be adopting a more receptive attitude toward antitrust claims based on allegations of consciously parallel pricing and other behavior in highly concentrated industries. Three decisions in the last few months suggest that High Fructose Corn Syrup may remain an aberration and that most courts remain deeply skeptical of claims that seek to infer agreement from consciously parallel conduct without any hard evidence of conspiracy. Two of these three decisions, Williamson Oil Co., Inc. v. Phillip Morris2 and Hall v. United Air Lines, Inc.3 involved consciously parallel pricing behavior and arose on mo-tions for summary judgment. Both decisions applied the well established analytical framework under which a plaintiff, to survive a defendant’s motion for summary judgment, must offer evidence of so-called plus factors, that is, of facts, in addition to the consciously parallel behavior itself, that support an inference of unlawful conspiracy. The third decision, Twombly v. Bell Atlantic Corp.,4 applies this analytical framework to allegations of agreement arising from consciously parallel conduct to dismiss the case on the pleadings. The case is of additional interest because it is one of the few conscious parallelism cases involving an al-leged market allocation agreement, rather than alleged price fixing.


Antitrust and Trade Regulation

Date of this Version

December 2003