NCJ Number
52408
Journal
Missouri Law Review Volume: 43 Issue: 4 Dated: (FALL 1978) Pages: 686-713
Date Published
1978
Length
28 pages
Annotation
EVIDENTIARY AND PROOF PROBLEMS ASSOCIATED WITH ANTITRUST LITIGATION INVOLVING THE CHARGE OF CONSPIRACY AND THE DEVELOPMENT OF A COMPUTERIZED TECHNIQUE TO PRODUCE EVIDENCE IN CONSPIRACY CASES ARE DISCUSSED.
Abstract
ALTHOUGH CONSPIRING TO FIX PRICES IS CLEARLY ILLEGAL, IT IS OFTEN DIFFICULT TO PROVE THAT A CONSPIRACY EXISTS OR HAS EXISTED BECAUSE OF ATTEMPTS BY THE PRICE-FIXING GROUP TO ELIMINATE OR CONCEAL EVIDENCE THAT SUGGESTS AN AGREEMENT. IN A MARKET COMPRISING MANY SELLERS AND BUYERS, ECONOMIC PRESSURES RESULTING FROM INTERDEPENDENCE ARE ABSENT. IF PRICE UNIFORMITY OCCURS IN A NORMAL MARKETPLACE, THE INFERENCE OF COLLUSION IS STRENGTHENED BECAUSE OLIGOPOLISTIC FORCES ARE NOT IN EFFECT. THE PRACTICE OF MANY BUYERS OF TAKING SEALED BIDS ASSURES PRICE-FIXING SELLERS OF THE CONTINUED VITALITY OF THEIR ARRANGEMENTS AND PROVIDES AN ADDITIONAL INCENTIVE TO FIX PRICES. DELIVERED PRICING IS ANOTHER PRACTICE PERMITTED BY BUYERS IN THE SEALED BID INDUSTRY; DELIVERED PRICES INSURE COMPETITORS THAT THEY CAN MAKE A BID THAT WILL NOT REFLECT TRANSPORTATION COSTS. COMPUTERS REPRESENT A WAY OF ANALYZING MARKET STRUCTURES IN ORDER TO PRESENT EVIDENCE OF CONSPIRACY. INFORMATION TO BE PROCESSED BY COMPUTERS IS SELECTED ON THE PREMISE THAT PRICE FIXING WILL OCCUR WHERE CERTAIN CHARACTERISTICS EXIST: HOMOGENEOUS PRODUCT, INELASTIC DEMAND FOR PRODUCT, RELATIVELY STABLE TECHNOLOGY AND LITTLE PRODUCT INNOVATION, SEALED BIDS, AND SUBSTANTIAL ENTRY BARRIERS TO INDUSTRY NEWCOMERS. AN ASSUMPTION BASIC TO THE USE OF COMPUTERS IN EVIDENCE ASSIMILATION IS THAT COLLUSIVE SELLERS WILL GENERATE VISIBLE TRACES OF THEIR CONSPIRACY THAT CAN BE DISCOVERED AND INTERPRETED THROUGH VARIOUS RELATIONSHIPS. THE PROPONENT OF COMPUTER-GENERATED EVIDENCE SHOULD, AS A GENERAL RULE, DISCLOSE HIS INTENTION TO USE SUCH EVIDENCE BEFORE TRIAL. IT IS NECESSARY TO LAY A PROPER FOUNDATION FOR THE ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE, AND TESTIMONY OF AN EXPERT ECONOMIST MAY BE NEEDED. DATA FROM ANALYSES OF PRICE FIXING AND COMPUTER-GENERATED EVIDENCE ARE TABULATED.