A Knowledge Theory of Tacit Agreement

43 Pages Posted: 6 Mar 2020

See all articles by Wentong Zheng

Wentong Zheng

University of Florida Levin College of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2019

Abstract

A persistent puzzle in antitrust law is whether and when an unlawful agreement could arise from conduct or verbalized communications that fall short of an explicit agreement. While courts have found such tacit agreements to exist in idiosyncratic scenarios, they have failed to articulate a clear and consistent logic for such findings. This Article attempts to fill this gap by proposing a unified theory of tacit agreement. It defines a tacit agreement as an agreement formed by non-explicit communications that enable the alleged coconspirators to have constructive knowledge of one another's conspiratory intent. This approach to tacit agreement is more faithful to the conceptual integrity and the statutory meaning of the agreement requirement under the Sherman Act. More importantly, it provides a flexible yet consistent formula for determining tacit agreements. This formula could be applied to any factual scenarios, including conscious parallelism, parallel conduct preceded by suggestive communications, hub-and-spoke conspiracy, and facilitating practices.

Keywords: antitrust law, explicit agreement, tacit agreement, suggestive communications

Suggested Citation

Zheng, Wentong, A Knowledge Theory of Tacit Agreement (2019). 9 Harvard Business Law Review 399; University of Florida Levin College of Law Research Paper No. 20-9. Available at SSRN: https://ssrn.com/abstract=3548845 or http://dx.doi.org/10.2139/ssrn.3548845

Wentong Zheng (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0936 (Phone)

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