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Identify who agreed

Rule:

  • Use circumstantial and direct evidence to create an account of why a particular D is part of an agreement
  • The main way to avoid being part of a conspiracy is to stay quiet and call the cops
    • Note that this may be hard in some industries where collusion is necessary to some degree

Caselaw:​

U.S. v. Foley (1979) (boundary of conspiracy)​

  • Holding: evidence at trial was sufficient for jury to convict each D at trial
    • Foley: clearly part of the agreement
      • he mailed the increase announcement to all realtors, hosted the dinner, and pressured the other realtor to raise rates over the phone
    • Carruthers: very likely part of the agreement:
      • Most listings at 7%
      • Called another realtor on three occasions to pressure him to raise rate with threats
      • Called other realtors to complain about 6% listings
    • Shannon & Luchs: might be part of the agreement
      • Stated that they shouldn't discuss a rate increase at the dinner
      • Stated that they would go to 7% at the beginning of the year, actually did
      • Told another realtor they didn't need help
  • Facts: Foley hosts dinner for local realtors and announces that his firm is increasing its commission rate from 6% to 7%. Each D raises to 7% over the next months.
  • Note: to avoid liability for agreement, Ds should have stayed quiet and informed the antitrust authorities
    • Firms can be cautious to do this because collusion is necessary to some degree in some fields