High Prices and Low-Level Conspirators

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Price-fixing conspiracies steal billions of dollars from consumers every year. Antitrust law is designed to deter and punish such collusion and to compensate the victims of illegal conspiracies. Price-fixing claims, however, can only accomplish the goals of antitrust law if federal judges appropriately apply the law and allow legitimate claims to proceed to trial. Unfortunately, federal courts often improperly grant summary judgment for price-fixing defendants because judges fail to recognize the critical importance of low-level workers in criminal conspiracies when evaluating price-fixing claims. A misguided body of precedent instructs federal judges to diminish or disregard evidence that involves employees who lack pricing authority. As a result, courts are too quick to exonerate firms accused of illegal collusion.

This Article explores the critical role of lower-level employees in managing, enforcing, and concealing illegal price-fixing conspiracies. An influential line of antitrust cases has minimized the legal significance of communications and activities of lower-level employees. Even when these employees share confidential pricing plans with rivals, courts diminish—and often mischaracterize—such discussions as mere “chit chat” or “shop talk.” These antitrust opinions are premised on the notion that price-fixing conspiracies do not rely on the labor of lower-level employees.

These cases reveal a fundamental misunderstanding of how price-fixing cartels actually operate. Successful antitrust conspiracies generally perform a series of functions: forming the cartel and setting the initial fixed price; managing the cartel, including readjusting the fixed price; enforcing the cartel, by monitoring member prices and sales volume and penalizing members who deviate from the cartel agreement; and concealing the conspiracy from antitrust enforcers. Case studies demonstrate how all of these tasks can be—and are—performed or facilitated by lower-level employees in actual price-fixing conspiracies.

The judicial failure to appreciate how price-fixing cartels operate has distorted antitrust jurisprudence. In particular, by diminishing the significance of inter-competitor communications involving employees without pricing authority, federal courts have written a blueprint for how illegal conspiracies can avoid antitrust liability and keep their ill-gotten gains: use their low-level employees to perform cartel tasks. Many, perhaps most, price-fixing conspirators are following this advice and profiting at the expense of consumers.

This Article explains why, when evaluating circumstantial evidence of collusion, courts should focus on the content of communications, not the identity of the messenger. Instead of devaluing the importance of lower-level employees in antitrust litigation, courts should treat these individuals as valuable assets who possess inside information that can bring down illegal conspiracies.