Price-fixing conspiracies overcharge consumers by billions of dollars every year. Although such collusion violates antitrust law, hundreds of price-fixing cartels continue to operate unimpeded because they successfully conceal their illegal collusion. Using examples from more than fifty price-fixing conspiracies, this Article identifies and catalogs the various concealment measures that actual price fixers employ to hide their collusion.
When engaging in price fixing, respectable business executives use code names and encrypted messages; they register in hotels using aliases; they rendezvous secretly in seedy locations; they create fake trade associations; they hide or destroy incriminating documents; and they falsify their travel documents and expense reports. And if they are ever accused of collusion, they deny the charges and profess that they are reputable businesspeople who would never countenance illegal conduct. Then they tell false cover stories that they have coordinated in advance.
This Article explains how federal courts have unwittingly rewarded the various concealment methods commonly employed by price-fixing conspirators. For example, judges treat defendants’ documents as inherently accurate, even though price-fixing conspirators routinely fabricate exculpatory documents. Because they do not understand cartel concealment methods, many federal judges are too quick to dismiss price-fixing claims or grant summary judgment to price-fixing defendants. This Article analyzes dozens of cases, across most federal circuits, in which judges have been fooled by–or have failed to appreciate the significance of–cartel concealment methods.
a. Chancellor’s Professor of Law, University of California, Irvine School of Law. The author thanks Erik Hovenkamp, Dalie Jimenez, Dan Klerman, Bob Rasmussen, Tony Reese, Ken Simons, and the participants in workshops at the USC Gould School of Law and the UC Irvine School of Law.
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