To specify the standards governing claims of consciously parallel pricing coordination in civil actions under the Sherman Act, and to clarify the meaning of contract, combination in the form of trust or otherwise, or conspiracy under the Sherman Act.
Competitive Prices Act
This bill makes consciously parallel pricing coordination (i.e., a tacit agreement among two or more persons to raise, lower, change, maintain, or manipulate pricing for the purchase or sale of reasonably interchangeable products or services) a prohibited form of price fixing.
In a civil action for a claimed violation, the plaintiff may shift the burden of proof to the defendant by demonstrating that two or more persons (1) engaged in substantially similar conduct within a substantially similar time period with respect to the pricing of reasonably interchangeable products, and (2) had a similar motivation to coordinate their efforts to change or manipulate the pricing of those products or services.
The defendant may rebut such a presumption of a violation by demonstrating the action was motivated by business judgment that is economically rational in the absence of a tacit agreement, such as by showing the action was in response to, or in anticipation of, changing market conditions for the product or service.
If the defendant rebuts the presumption, the plaintiff must demonstrate by a preponderance of the evidence that the defendant entered a tacit agreement to change or manipulate the pricing for the product or service, such as by showing the business judgment of the defendant was not rational in the absence of such a tacit agreement.
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