Price-fixing agreements among horizontal competitors raise significant antitrust concerns under Section 1 of the Sherman Act.
Naked price-fixing agreements are considered among the most pernicious and constitute a per se violation of Section 1—the type of violation that may result in criminal prosecution.
While the concept of agreements on the ultimate price is well understood, recent enforcement actions and civil lawsuits highlight that allegations of price fixing extend to any agreement that interferes with the setting of price by free market forces. Agreements that have even the effect of raising, depressing, fixing, pegging, or stabilizing prices all implicate Section 1, possibly including agreements on credit terms, shipping fees, warranties, discount programs, financing rates, and the underlying formulas for calculating prices.
Furthermore, while exchanging the above types of information may not in and of itself be unlawful, it could lead to or facilitate entry into unlawful agreements.
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For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte: