The Sherman Act's prohibition of conspiracy in restraint of trade has posed the perennial problem of distinguishing between independent action and anticompetitive agreement. The difficulty of this task is accentuated when plaintiffs' evidence of "consciously parallel" business behavior is met by business justifications for that parallel conduct in defendants' summary judgment motions. This Note begins by discussing the basic principles of Sherman Act conspiracy and inferential proof of concerted action in a summary judgment context, addressing the various standards governing the doctrine of conscious parallelism and focusing on the development, application, and limitation of the business judgment defense. The Note contrasts the Third and Fifth Circuits' approaches to evaluating conscious parallelism and accompanying business justifications in summary judgment motions. The Note concludes that the Fifth Circuit limitation on the business judgment defense undermines the purposes of the Sherman Act and is inconsistent with Supreme Court precedent. The Note recommends adoption of the Third Circuit approach, as it both recognizes the importance of business justifications in determining antitrust liability and preserves the trial judge's latitude in assessing the business context of the suspect conduct.
Emil John Kotalik Jr.,
Conscious Parallelism: The Business Judgment Defense in a Summary Judgment Context,
35 Hastings L.J. 115
Available at: https://repository.uchastings.edu/hastings_law_journal/vol35/iss1/3