Bodner, Conscious Parallelism
May Justify a Wolf Pack Pill, LAW360 (May 27, 2014, 9:45 PM), http://www.
37) While mere conscious parallelism may be a factor for a court to find a conspiracy violation under Section 1 of the Sherman Act, alone, it may not satisfy a violation.
144) These agreements are not "mere conscious parallelism," but they have several plus factors, which are needed for a conspiracy violation of Section 1 of the Sherman Act.
7 (2007) (holding that parallel conduct and conscious parallelism are not alone enough to satisfy a conspiracy violation under Section 1 of the Sherman Act).
While the amended complaint offers more detailed instances of price increases than the original, plaintiffs would appear to face the hurdle encountered in defendants' early-March motion to dismiss: namely, as defense counsel stated in its filing, "The Supreme Court has expressly held that such conscious parallelism
is to be expected in concentrated commodity industries like those alleged by Plaintiffs and does not amount to a Sherman Act violation.
a theory of conscious parallelism, (172) which arose in response to
However, conscious parallelism alone is insufficient to raise an
Indeed, looking past this doctrinal cross-dressing opens the timeworn writ of interdependent conscious parallelism to a powerful new logic--game theory--that promises to outfit the old writ in new dress that might be called strategic parallel conduct.
In short, the Kodak and Xerox cases, taken together, look more like interdependent conscious parallelism under section 1 of the Sherman Act than separate monopolization offenses under section 2.
The Evolution of the Theory of Conscious Parallelism
The FTC's position regarding conscious parallelism then stabilized for decades.
However, this doctrine of conscious parallelism
places a responsibility on the secretary/meeting monitor to make sure that no seemingly innocent actions are taken, and that no seemingly innocuous discussions occur that could be later construed as "conspiracies," actual or implied.