One is the loneliest number that you’ll ever do
Two can be as bad as one
It’s the loneliest number since the number one
– Three Dog Night
The worst antitrust offenses involve conspiracies involving multiple actors. Hard-core offenses under Section 1 of the Sherman Act, such as price-fixing, market division, customer allocation, or bid-rigging, require agreements between at least two economically distinct parties. You simply can’t conspire with yourself. The enforcement agencies and private plaintiffs, however, have found legal tools to reach what was once thought a legal impossibility: attempted conspiracies in which no one else agrees with the would-be conspirator.
Those approaches evolved from the frustration of the DOJ’s Antitrust Division at being unable to indict the president of American Airlines, who in 1982 telephoned the president of then-rival Braniff and proposed a brazen price-fixing agreement. But the Braniff president had no intention of agreeing; rather, he secretly recorded the conversation and sent it to DOJ. Without an agreement between the two presidents, however, DOJ could not prosecute the American president criminally for price-fixing. Instead, DOJ was forced to invent an awkward and largely toothless alternative civil theory of liability. As a practical matter, the American president’s punishment was public shackling in the antitrust stocks: he became the prime example of ill-advised business conduct in the antitrust compliance programs of generations of antitrust lawyers.
DOJ has since then successfully prosecuted attempts to conspire not as agreements in violation of Section 1 of the Sherman Act, but as unilateral criminal acts constituting wire or mail fraud. Not to be outdone, the Federal Trade Commission, equipped with the broader mandate of Section 5 of the FTC Act (but no criminal prosecution authority), has pursued what it calls invitations to collude, even when that overture was not accepted by the invitee. Invitations to collude can be private or public. The FTC has brought cases against firms that secretly approached rivals with proposals to raise prices, and also against firms that broadcast the message of higher prices to competitors through earnings calls with stock analysts.
Most recently, the United States Court of Appeals for the First Circuit upheld a private antitrust class action complaint against a company that unsuccessfully solicited its rivals to raise prices through both direct contacts and an earnings call. Ordinarily, consumers would not be damaged by an attempted price-fixing agreement that never materialized. Here, however, the company’s invitation took the form of actually implementing price increases, while telling competitors that the price increases would be rescinded if the competitors did not match them. The case was brought under a state statute that was modeled on the unfairness provision of Section 5 of the FTC Act, not under the state analogue to Section 1 of the Sherman Act. The state statute also provides a private right of action, which the FTC Act does not. The case thus involved an unusual convergence of factual and legal elements favorable to the plaintiff’s claim: allegedly increased prices even though the invitation to collude was not accepted, a state statute with the breadth of the FTC Act, and a private right of action. (To be sure, the fact that the court upheld the adequacy of the complaint does not mean that the plaintiff will be able to prove her claims.)
In short, would-be conspirators can no longer escape liability because their competitors prudently refuse to accept their offers. Companies that attempt unsuccessfully to recruit others into anticompetitive agreements can find themselves in antitrust trouble even if their proposals find no takers.