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Plus Factors have long played an important role in inferring a price agreement from the totality of the evidence. In response to changes in the case law, economists have proposed two alternative paths for the future of price fixing analysis. This paper evaluates the suggested approaches and recommends retaining the enhanced Plus Factor methodology.

By carefully defining the Plus Factor concept, three key components of the analysis emerge: (1) information on communications associated with the alleged agreement, (2) economic considerations affecting market competition, and (3) characteristics that serve to differentiate explicit from tacit collusion.

Developments rationalizing the Plus Factor concept show promise, as the methodology is not more closely related to economic theory. On the other hand, replacement of the Plus Factor methodology with one focused on market performance seems problematic. By abandoning the Plus Factor concept, the economist loses a key institutional constraint on over-aggressive enforcement.

Until advocates can address the difficulties associated with using performance evidence to identify price fixing, the standard Plus Factor concept appears more appropriate. Thus, antitrust analysts should continue to use the Plus Factor methodology to infer agreements in price fixing investigations, as long as the economic rationalization of the specific Plus Factor is clearly presented.

The paper synthesizes a number of recent contributions to the price fixing literature and addresses key issues of interest to the enforcement community. By providing a critique of the proposed policy shift to use performance evidence to infer price fixing liability, the study serves to justify continued application of the Plus Factor methodology.

Many jurisdictions fine illegal cartels using penalty guidelines that presume an arbitrary 10% overcharge. This article surveys more than 700 published economic studies and judicial decisions that contain 2,041 quantitative estimates of overcharges of hard-core cartels. The primary findings are: (1) the median average long-run overcharge for all types of cartels over all time periods is 23.0%; (2) the mean average is at least 49%; (3) overcharges reached their zenith in 1891–1945 and have trended downward ever since; (4) 6% of the cartel episodes are zero; (5) median overcharges of international-membership cartels are 38% higher than those of domestic cartels; (6) convicted cartels are on average 19% more effective at raising prices as unpunished cartels; (7) bid-rigging conduct displays 25% lower markups than price-fixing cartels; (8) contemporary cartels targeted by class actions have higher overcharges; and (9) when cartels operate at peak effectiveness, price changes are 60–80% higher than the whole episode. Historical penalty guidelines aimed at optimally deterring cartels are likely to be too low.

This paper surveys published economic studies and judicial decisions that contain 1,040 quantitative estimates of overcharges of hard-core cartels. The primary finding is that the median long-run overcharge for all types of cartels over all time periods is 25.0%:18.8% for domestic cartels and 31.0% for international cartels. Cartel overcharges are positively skewed, pushing the mean overcharge for all successful cartels to 43.4%. Convicted cartels are on average as equally effective at raising prices as unpunished cartels, but bid-rigging conduct does display somewhat lower mark-ups than price-fixing cartels. These findings suggest that optimal deterrence requires that monetary penalties ought to be increased.

The imposition and social welfare consequences of maximum resale price fixing are analyzed when there is successive monopoly and a non-contractible service is provided downstream. An elasticity condition that weighs maximum resale price fixing's opposing effects on quantity, through the effects on final price and service provision, determines whether it is adopted. Wholesale price is increased along with the practice of resale price fixing, and the net effects on quantity and social welfare are ambiguous. This points to an output test and a rule of reason in the antitrust evaluation of this practice, consistent with the Supreme Court's overruling of Albrecht.

An important aspect of UK competition policy is the attempt to maintain competitive markets by prohibiting restrictive agreements and cartels involving price fixing, market sharing, etc., the effect of which is to suppress, limit or distort active rivalry between suppliers. Examines UK policy towards restrictive agreements, alongside similar attempts to control cartels in the European Community. Outlines the regulatory frameworks operating in the UK and EC and emphasizes particular points of interest in the application of policy control by reference to selected restrictive agreement/cartel cases. While the attack on formal “open” collusion has been highly successful, it is clear from the work of the Office of Fair Trading and the European Commission that clandestine (”covert”) collusion between suppliers remains an on‐going problem.

An analysis of the defense of these cases contrasting them to similar cases on the equity side. The authors explore some technical and real defenses that are uniquely applicable to the commodity futures world.

In 2009, the Third Circuit decided Hydrogen Peroxide, which announced a more rigorous standard under Federal Rule of Civil Procedure 23(b)(3) for assessing whether a putative class could establish antitrust injury. Earlier this year, the Supreme Court decided Comcast v. Behrend, a case that carries potentially broad implications for both antitrust cases and Rule 23(b)(3) class actions generally. A review of the case law starting with Hydrogen Peroxide and continuing through Comcast and its progeny reveals the new rigor in antitrust class action decisions and suggests what the future may hold, including the type of arguments that may provide defendants the most likely chance of defeating class certification. After Comcast, rigor under 23(b)(3) can no longer be avoided in assessing all class actions questions, and courts should now apply Daubert fully in the class setting concerning both impact and damages. Courts should also closely evaluate plaintiffs’ proposed methodologies for proving impact to determine if they apply to each class member. Finally, courts will inevitably have to determine how rigorously to scrutinize experts’ damages methodologies and whether Comcast requires or suggests more scrutiny in assessing common evidence for measuring damages.

Using resource dependency theory, the purpose of this paper is to examine what elements in the business environment may be associated with the formation and continuance of cartels.

The authors employ a unique data set of 148 cartel data points from the 1970s to 2008 which have at least one American company involved to quantitatively test causal relationships. The authors also interview key class action anti-trust attorneys for their views and opinions on the impact of these environmental factors on cartel formation and continuance.

The authors find statistically significant relationships between the pursuit and maintenance of industry profits and the dynamism in the industry, and illegal behavior as represented through price fixing by business cartels. The authors find that in the attorneys’ opinion, it is also the pursuit of individual corporate profits and munificence that are associated with these cartels.

This research furthers the understanding of organizational deviance which is critical given its impact on organizations, individuals, regulators, law enforcement, and the general public.

This research is a first step in considering cartel activity in a way that encompasses external influences in a new and innovative manner and as a tool to help researchers and practitioners better understand how organizational deviance, as manifested through illegal corporate activity, can be anticipated, identified, and prevented.