1. Antitrust Law Fall 2016 NYU School of Law Dale Collins
Class Slides
6. Proving Conspiracy
Antitrust Law
Fall NYU School of Law
Dale Collins

2. Monsanto/Matsushita rule
Recall the price fixing “prisoner’s dilemma” in single period game
Two symmetrical firms
Firm 2
Firms split monopoly profits of 20
Monopoly
Competitive
Monopoly
10, 10
10, 10
0, 12.50
Competitive firm takes total competitive profits of 12.5 against firm charging monopoly price
Firm 1
Normal competitive profits of 6.25 for each firm—the independently rational strategy for each firm in a single period game
Competitive
12.50, 0
6.25, 6.25
Key result: Charging the competitive price is the dominant strategy for each firms in the single period game, regardless of what strategy the other firm chooses. But mutual monopoly strategies earn each firm higher profits.

3. Dispositive Motions Class certification motion JMOL Motion to dismiss
Tests whether a genuine issue exists for the trier of fact to determine
Pretrial motions; trial preparation
Discovery
Class certification motion
JMOL
(in jury trial)
Motion to dismiss
Trial
Appeal
Summary judgment motion
Tests sufficiency of complaint to proceed to discovery
Tests whether a genuine issue of material fact exists for resolution by the trier of fact
Resolves any genuine issue of material fact; applies law as instructed to facts
Tests resolution in trial court

4. Motion to Dismiss Burdens
Plaintiff: To defeat a MTD, must sufficiently plead each and every essential element of the prima facie case
Defendant: To win a MTD, need only show that one element of the plaintiff’s prima facie case is inadequately pleaded
Elements π Δ
Subject matter jurisdiction 
Personal jurisdiction/venue
Prudential standing
Plurality
Agreement 
Participation
Restraint of trade
Unreasonableness
Causality/fact of injury
Most frequently attacked elements
Frequently challenged in rule of reason cases

5. Summary Judgment Motion
Burdens
Plaintiff: To defeat a defendant’s SJM, must adduce evidence sufficient to create a genuine issue on each disputed element of the plaintiff’s prima facie case
Defendant: To win a SJM, need only show that
defendant’s evidence is sufficient to support a finding in its favor on the challenged element of the plaintiff’s prima facie case, and
plaintiff fails to respond with evidence sufficient to create a genuine issue of fact as to that element
Elements Δ π
Plurality
Not challenged
May standing on pleading
Agreement
Challenged—Adequate
Must adduce evidence
Participation
Restraint of trade
Unreasonableness
Challenged-Inadequate