(39) The first part of the test is to determine whether the evidence of the defendants' agreement is ambiguous, that is, whether it is as consistent with independent action as it is with collusive action. (40) If the action is ambiguous, the next part of the test is to determine if any evidence tends to exclude the possibility that the defendants were acting independently.
(56) Specifically, Omnicare's evidence of the defendant's agreement was equally consistent with independent action as it was with collusive action, and Omnicare did not present any evidence that tended to exclude the possibility that the defendants were acting independently.
This complex set of trading arrangements was, he said, "open to manipulation and collusive action
" by generators.
1996) initially ruled that the clause of the contract regarding authority of the engineer was indeed subject to judicial review, and would not be enforced if due to fraud, bad faith, an unreasonable or clear mistake, or collusive action
. Next, the court decided that there was a clear mistake by the engineer, and that the contract was ambiguous.
There was no indication whatsoever of collusive action
by the parties.
It was on his watch that owners engaged in collusive actions
to keep free-agent signings on the cheap.
--"[T]he point is that the evidence is plain that the defendants [the Uzans] undertook fraudulent and collusive actions
in Turkey to procure sham injunctions whose sole purpose was to avoid compliance with this Court's orders and proceedings, and that accordingly the claim that this Court's disregard of defendants' machinations somehow constitutes error is without substance."
However, a formally similar case appears in the Year Books as early as 1340,(9) and the preamble to a Statute of Richard II in 1390 suggests that just such collusive actions
had become a matter of public concern by Chaucer's day:
Today, explicit, collusive actions have been replaced by the more modern and more subtle practice of price signaling.
Price signaling is a provocative practice that lies somewhere between the First Amendment right to free speech and the Sherman Antitrust Act, which prohibits collusive actions. It is an overt, above-board practice that mixes the "right to inform" with the possibility of influencing prices.