Brief for Antitrust Law Professors as Amici Curiae in Support of Petitioners - Visa Inc. V. Osborn

18 Pages Posted: 7 Mar 2016

See all articles by Jorge L. Contreras

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Seth P. Waxman

Wilmer Cutler Pickering Hale and Dorr LLP

Leon B Greenfield

Independent

Daniel Volchok

WilmerHale LLC

David Gringer

Independent

John Sprangers

Independent

Thomas C. Arthur

Emory University School of Law

D. Daniel Sokol

USC Gould School of Law; USC Marshall School of Business

Alexander Volokh

Emory University School of Law

Date Written: February 29, 2016

Abstract

The courts of appeals are divided over whether a plaintiff can plausibly plead a horizontal conspiracy among competitors in violation of section 1 of the Sherman Act merely by alleging that members of a business association: (a) have governance rights in the association and (b) agreed to adhere to its rules. Amici submit that the D.C. Circuit erred in holding here that such allegations are sufficient. That holding is inconsistent with this Court’s precedent requiring plaintiffs, in order to allege an illegal agreement, to plead facts plausibly suggesting collusion among the defendants to achieve a common unlawful objective. The approach approved by the decision below would mean that every business that participates in the affairs of a business association can be subjected to expensive discovery concerning an allegedly anticompetitive rule of the association. That would discourage beneficial business-association activities, to the detriment of businesses and consumers alike.

Keywords: antitrust, trade association, collusion

Suggested Citation

Contreras, Jorge L. and Waxman, Seth P. and Greenfield, Leon B and Volchok, Daniel and Gringer, David and Sprangers, John and Arthur, Thomas C. and Sokol, D. Daniel and Volokh, Alexander (Sasha), Brief for Antitrust Law Professors as Amici Curiae in Support of Petitioners - Visa Inc. V. Osborn (February 29, 2016). Available at SSRN: https://ssrn.com/abstract=2742946 or http://dx.doi.org/10.2139/ssrn.2742946

Jorge L. Contreras (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Seth P. Waxman

Wilmer Cutler Pickering Hale and Dorr LLP ( email )

2445 M Street, NW
Washington, DC 20037
United States
202-663-6800 (Phone)
202-663-6363 (Fax)

Leon B Greenfield

Independent ( email )

Daniel Volchok

WilmerHale LLC ( email )

3139 Research Boulevard
Dayton, OH 20037
United States

David Gringer

Independent ( email )

John Sprangers

Independent ( email )

Thomas C. Arthur

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-5792 (Phone)
404-727-6820 (Fax)

D. Daniel Sokol

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

USC Marshall School of Business ( email )

701 Exposition Blvd
Los Angeles, CA California 90089
United States

Alexander (Sasha) Volokh

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-712-5225 (Phone)
404-727-6820 (Fax)

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