Pleading an antitrust violation through parallel conduct and plus factors

(a)

Definitions

(1) The term antitrust laws means the Sherman Act (15 U.S.C. 1, et seq.), the Clayton Act (15 U.S.C. 12, et seq.), and the Federal Trade Commission Act (15 U.S.C. 41, et seq.). (2)The term parallel conduct means two or more persons acting similarly to raise, lower, maintain, stabilize, or manipulate price, output, capacity, supply, or other terms of competition for reasonably interchangeable commodities or services. Parallel conduct need not be uniform and can be varied in timing, method, and amount. (3)The term person has the meaning given the term in subsection (a) of the 1st section of the Clayton Act (5 U.S.C. 12(a)). (4)The term plus factors means allegations other than parallel conduct supporting the inference of a conspiracy, including— (A)a motive to coordinate efforts to raise, lower, maintain, stabilize, or manipulate price, output, capacity, supply, or other terms of competition for the purchase or sale of reasonably interchangeable commodities or services; (B)actions that would be contrary to a person’s unilateral economic self-interest absent a conspiracy; (C)departure from prior pricing methodology and practices; (D)exchanges of competitively sensitive information; (E)price or output levels unexplained by cost, supply, or demand; (F)an opportunity to conspire at industry events, conferences, trade association activities, or through any other meetings or venues; (G)past collusive practices; (H) an invitation to participate in a common scheme, including by public signaling of pricing, output, capacity, supply, or other competitive strategies, or offering of a method to engage in parallel conduct; and (I)market conditions conducive to coordination, including high market concentration, high barriers to entry, high exit barriers, inelastic demand, or fungible products. (5)The terms State attorney general and State have the meaning given in section 4G of the Clayton Act (15 U.S.C. 15g). (b)

Standards of pleading and proof

In a civil action, including an action brought by the United States, the Federal Trade Commission, a State attorney general, or any person seeking damages or injunctive relief for violations of the antitrust laws— (1)when opposing any motion to dismiss a complaint, motion for judgment on the pleadings, or any other motion challenging the sufficiency of the allegations, a claimant— (A)plausibly states a claim by alleging parallel conduct and the presence of two or more plus factors; (B)need not allege direct evidence of a conspiracy; (C) need not allege facts tending to exclude the possibility of independent action; and (D)need not allege a theory that is more plausible than one offered by defendants, as the court at the pleading stage must only consider whether the allegations are plausible, not whether an alternative explanation is equally or more plausible; and (2)when opposing any motion for summary judgment, motion for directed verdict, motion for judgment as a matter of law, or any other motion challenging the sufficiency of the evidence and permitting a ruling as matter of law, a claimant— (A)demonstrates a genuine issue of material fact by offering evidence, which may be direct evidence, circumstantial evidence, or some combination of the two, that is sufficient to allow a trier of fact to find that the defending party engaged in an unlawful conspiracy; (B)need not offer evidence tending to exclude the possibility that the defending party acted independently; and (C)need not demonstrate that the weight of the evidence favors the claimant, as all evidence must be construed in the light most favorable to the party opposing summary judgment and the weighing of the evidence is an issue for the finder of fact. (c)

Rule of construction

Nothing in this Act shall be construed to abridge or narrow the remedies available under the antitrust laws.