By: Anthony J. Wisdo*
Abstract
U.S. antitrust law is the ultimate protector of free market competition. The backbone of U.S. antitrust law is the Sherman Antitrust Act. Section 1 of the Sherman Act prohibits unreasonable restraints of trade. Unrestrained market competition protects consumer welfare by preventing monopolistic practices.
A Section 1 violation requires concerted activity between independent actors. Concerted activity is conduct involving two or more independent actors who have an agreement. Currently, a circuit split exists regarding the pleading standard for concerted action in a Section 1 claim.
The circuit split can be divided into two categories: lower pleading standards and higher pleading standards. The pleading standards in each category have limitations that outweigh their benefits, making them inadequate. The limitations produce inflexibility across varying contexts, ambiguity in Section 1 violations, and ultimately, unjust outcomes. Further, the existence of varying standards for the same cause of action contradicts well-settled rules of law. These limitations call for the Supreme Court to address the circuit split.
To address the limitations generated by the circuit split, this Comment recommends that the Supreme Court adopt a uniform, intermediate pleading standard that features the benefits of both standards while overcoming their limitations. The basis of the proposed pleading standard for concerted action stipulates: the promulgation of an association rule, together with a member’s prior agreement to abide by the association’s will establishes the requisite concerted action, if the member either: (1) actively participated in creating the rule, or (2) enforced the rule in some capacity.
* J.D. Candidate, The Pennsylvania State University School of Law, 2025.