What counts and what does not
Price fixing is an agreement among competitors to raise, lower, stabilize, or otherwise set prices or price-related terms such as discounts, surcharges, or credit terms. The agreement does not need to be written, and an understanding inferred from conduct and communications can be enough. Parallel pricing alone, where companies independently follow a market leader, is generally not unlawful, which is why investigations focus on evidence of communication. Agreements among employers about wages or benefits can be treated the same way, and sharing competitively sensitive information through a common vendor or pricing software has drawn growing scrutiny and new state laws. The Department of Justice prosecutes serious price fixing as a crime, and state attorneys general may bring their own cases.
If you are a company or an employee
Contacts with competitors at trade associations, conferences, and through informal channels are where problems most often begin, and a compliance program should address them directly. If you learn that colleagues may have discussed prices with competitors, talk to counsel before confronting anyone or deleting anything, and preserve documents and messages, including those on personal phones and messaging apps used for work. The Antitrust Division runs a leniency program under which the first qualifying company or individual to report a cartel and cooperate may avoid criminal prosecution, so timing can matter a great deal. Employees may need counsel separate from the company. Agents sometimes interview employees at home without warning, and people may decline to speak or ask for a lawyer first.
If you paid inflated prices
Businesses and consumers who bought from members of a price-fixing conspiracy may be able to recover damages, and federal antitrust law provides for multiplied damages and attorney's fees for successful plaintiffs. Direct purchasers generally sue under federal law, while indirect purchasers, who bought through distributors or retailers, often rely on state laws that permit their claims. Many claims proceed as class actions after a government investigation becomes public, and settlement notices can arrive long after the purchases. Keep invoices, contracts, and purchase records, because the volume and timing of purchases drive any claim. In a first meeting we look at your position in the supply chain, which cases or investigations already exist, and whether opting out of a class makes sense for you.
