1. Refresher on Antitrust Basics for Common Distribution Issues
a. Antitrust remains a key consideration for distribution
b. Section 1 of the Sherman Act
i. Prohibits contracts, combinations and conspiracies that unreasonably restrain trade
ii. Agreements take many forms
(1) No need for written or formal agreement
iii. Can be merely a shared conscious commitment to a common scheme designed to achieve an unlawful objective
(1) Agreements can be based on direct or indirect circumstantial evidence from which an agreement can be inferred
(a) Can be inferred from communication between competitors
(b) Can be inferred from parallel action by competitors if inconsistent with independent business judgment
(2) Unilateral conduct cannot violate Section 1
iv. Do not need to be successful: even failed conspiracies expose companies to liability when there is an impermissible agreement among competitors