The Court of Appeals for the Eighth Circuit has affirmed a grant of summary judgment for defendants in an antitrust action which, according to the court, mischaracterized a vertical course of conduct as a “horizontal conspiracy.” Nitro Distributing, Inc. v. Alticor, Inc., No. 08-1451, 2009 WL 1175504 (8th Cir. May 4, 2009). Applying the principles of Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984), and Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S. 574 (1986), the court held that it is incumbent upon an antitrust plaintiff, in attempting to allege a “genuine issue,” to exclude the possibility of independent action. This is so whether the alleged conduct is characterized as “direct evidence,” or “circumstantial evidence.” The court held that only by assuming its conclusion, and by mischaracterizing a vertical course of conduct as “horizontal,” could plaintiffs? complaint state a claim.

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