I 
118TH CONGRESS 
1ST SESSION H. R. 2782 
To specify the standards governing claims of consciously parallel pricing 
coordination in civil actions under the Sherman Act, and to clarify 
the meaning of contract, combination in the form of trust or otherwise, 
or conspiracy under the Sherman Act. 
IN THE HOUSE OF REPRESENTATIVES 
APRIL 20, 2023 
Ms. PORTER (for herself, Mr. NADLER, Mr. CICILLINE, and Ms. JAYAPAL) in-
troduced the following bill; which was referred to the Committee on the 
Judiciary 
A BILL 
To specify the standards governing claims of consciously 
parallel pricing coordination in civil actions under the 
Sherman Act, and to clarify the meaning of contract, 
combination in the form of trust or otherwise, or con-
spiracy under the Sherman Act. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Competitive Prices 
Act’’. 
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SEC. 2. PURPOSE. 
The purpose of this Act is to clarify and amend the 
law with respect to— 
(1) the illegality of consciously parallel pricing 
coordination under sections 1 and 3(a) of the Sher-
man Act (15 U.S.C. 1, 3(a)); and 
(2) 
the 
concerted-action 
requirement 
for 
claimed violations of section 1 or 3(a) of the Sher-
man Act. 
SEC. 3. FINDINGS. 
(a) CONSCIOUSLY PARALLEL PRICING COORDINA-
TION.— 
(1) The American economy is built on the foun-
dations of open markets and fair competition. These 
core principles of economic freedom are what stimu-
late innovation, improve the quality of products and 
services, and ensure that prices are competitive. 
(2) The antitrust laws are designed to ensure 
American consumers and businesses are afforded the 
benefits of competition throughout the economy. The 
supreme evil of antitrust law is, accordingly, collu-
sion among market rivals. Such collusion under-
mines competitive markets, stifles innovation, and 
results in degraded quality and prices that are dic-
tated by competitors’ agreement rather than com-
petitors’ rivalry. 
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(3) Sections 1 and 3(a) of the Sherman Act (15 
U.S.C. 1, 3(a)) categorically prohibit—as the most 
pernicious types of contracts, combinations in the 
form of trust or otherwise, or conspiracies, in re-
straint of trade or commerce—naked agreements 
among actual or potential competitors to fix prices, 
rig bids, or allocate markets. An agreement to fix 
the quantity of products or services bought or sold 
is a form of agreement to fix prices. These agree-
ments are per se unlawful. 
(4) Courts have been unduly hostile to claims of 
price fixing that are based on tacit agreement 
among competitors. They have, at times, declined to 
recognize tacit agreement as a contract, combination 
in the form of trust or otherwise, or conspiracy; they 
have held that allegations or evidence, taken as a 
whole, that are as consistent with ‘‘conscious par-
allelism’’ as with agreement are generally insuffi-
cient to survive a motion to dismiss or motion for 
summary judgment; and they have concluded a 
claimant must offer allegations or evidence tending 
to exclude the possibility of independent action. See, 
e.g., Brooke Grp. Ltd. v. Brown & Williamson To-
bacco Corp., 509 U.S. 209, 227 (1993); Matsushita 
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 
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574, 588 (1986); Monsanto Co. v. Spray-Rite Serv. 
Corp., 465 U.S. 752, 764 (1984). 
(5) Section 4 of this Act rejects the judicial de-
cisions that have prevented meritorious price-fixing 
cases from advancing to trial and judgment. It does 
so by providing that, in civil actions, consciously par-
allel pricing coordination—as defined by this Act— 
is a ‘‘contract, combination in the form of trust or 
otherwise, or conspiracy, in restraint of trade or 
commerce’’ under sections 1 and 3(a) of the Sher-
man Act. 
(6) Section 4 of this Act does not supersede the 
law governing price fixing. It instead supplements 
and complements that law. It does not apply to 
criminal prosecutions. 
(b) CONCERTED ACTION.— 
(1) The words ‘‘contract, combination in the 
form of trust or otherwise, or conspiracy’’ in sections 
1 and 3(a) of the Sherman Act require some form 
of agreement between two or more persons, but that 
agreement need not be expressly made. A tacit 
agreement also qualifies. Accordingly, the words 
‘‘contract, combination in the form of trust or other-
wise, or conspiracy’’ encompass both express and 
tacit agreements. 
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(2) Although consciously parallel behavior alone 
does not constitute a contract, combination in the 
form of trust or otherwise, or conspiracy under sec-
tions 1 and 3(a) of the Sherman Act, consciously 
parallel behavior can be evidence of an agreement. 
And once the consciously parallel behavior crosses 
the line into consciously parallel coordination, the 
behavior qualifies as tacit agreement—that is, a con-
tract, combination in the form of trust or otherwise, 
or conspiracy. 
(3) In Bell Atlantic Corp. v. Twombly, 550 
U.S. 544, 548–49, 553–57, 564–70 (2007), the Su-
preme Court held that a complaint alleging that 
competitors engaged in parallel, anticompetitive con-
duct did not do enough to exclude the possibility 
that the competitors engaged in independent action 
and therefore failed to plausibly plead the existence 
of a conspiracy under section 1 of the Sherman Act. 
In so holding, the Court understated the significance 
of consciously parallel behavior as evidence of agree-
ment and left little or no room for tacit agreements 
in the meaning of ‘‘contract, combination in the 
form of trust or otherwise, or conspiracy’’. 
(4) Section 5 of this Act rejects the Twombly 
Court’s cramped reading of the Sherman Act’s lan-
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guage, clarifies that the words ‘‘contract, combina-
tion in the form of trust or otherwise, or conspiracy’’ 
encompass tacit agreements, and specifies the stand-
ards for pleading and proving a contract, combina-
tion in the form of trust or otherwise, or conspiracy 
under sections 1 and 3(a) of the Sherman Act. 
SEC. 4. CONSCIOUSLY PARALLEL PRICING COORDINATION. 
(a) DEFINITIONS.— 
(1) The term ‘‘consciously parallel pricing co-
ordination’’ means a tacit agreement among two or 
more persons to raise, lower, change, maintain, or 
manipulate pricing for the purchase or sale of rea-
sonably interchangeable products or services. 
(2) The term ‘‘person’’ has the meaning given 
the term in subsection (a) of the first section of the 
Clayton Act (15 U.S.C. 12(a)). 
(b) CONSCIOUSLY PARALLEL PRICING COORDINA-
TION.—In a civil action, including an action brought by 
the United States or by a State attorney general, or by 
the Federal Trade Commission under section 5 of the Fed-
eral Trade Commission Act (15 U.S.C. 45), consciously 
parallel pricing coordination is a ‘‘contract, combination 
in the form of trust or otherwise, or conspiracy, in re-
straint of trade or commerce’’ under sections 1 and 3(a) 
of the Sherman Act (15 U.S.C. 1, 3(a)). 
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(c) PRIMA FACIE CASE.— 
(1) A claimant establishes a prima facie case of 
consciously parallel pricing coordination by dem-
onstrating that two or more persons— 
(A) engaged in substantially similar action, 
within a substantially similar time period, with 
respect to pricing for reasonably interchange-
able products or services; and 
(B) had a substantially similar motivation 
to coordinate their efforts to raise, lower, 
change, maintain, or manipulate pricing for the 
purchase or sale of reasonably interchangeable 
products or services. 
(2) A claimant asserting a claim of consciously 
parallel pricing coordination in violation of section 1 
or 3(a) of the Sherman Act bears the burden of 
proving the prima facie case described in paragraph 
(1) by a preponderance of evidence, at which point 
the burden of production shifts to the defending 
party as set forth in subsection (d). 
(d) BURDEN OF REBUTTING PRIMA FACIE CASE.— 
The defending party bears the burden of rebutting a prima 
facie case of consciously parallel pricing coordination by 
producing evidence, sufficient to raise a genuine dispute 
of material fact, that the defending party’s action de-
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scribed in paragraph (1)(A) of subsection (c) was moti-
vated by business judgment that is economically rational 
in the absence of any consciously parallel pricing coordina-
tion. Evidence of this nature may include, but is not lim-
ited to, evidence that the defending party acted rationally 
in response to or in anticipation of changing conditions 
affecting the market for or the marketability of the prod-
ucts or services concerned. 
(e) ULTIMATE BURDEN.—If the defending party re-
buts the prima facie case, the burden shifts back to the 
claimant to prove, by a preponderance of the evidence, 
that the defending party entered a tacit agreement among 
two or more persons to raise, lower, change, maintain, or 
manipulate pricing for the purchase or sale of reasonably 
interchangeable products or services. The claimant may do 
so by means that include, but are not limited to, proving 
that— 
(1) the business judgment described in sub-
section (d) was not— 
(A) economically rational in the absence of 
consciously parallel pricing coordination; or 
(B) the predominant motivating factor for 
the defending party’s action described in para-
graph (1)(A) of subsection (c); 
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(2) the defending party, knowing that coordi-
nated action to raise, lower, change, maintain, or 
manipulate pricing for the purchase or sale of rea-
sonably interchangeable products or services was 
contemplated and invited by a competitor, adhered 
to the scheme and participated in it; or 
(3) based on circumstantial evidence implying a 
traditional conspiracy, it is more likely than not that 
the defending party entered an agreement among 
two or more persons to raise, lower, change, main-
tain, or manipulate pricing for the purchase or sale 
of reasonably interchangeable products or services. 
(f) AFFIRMATIVE DEFENSE.—It is an affirmative de-
fense to a claim of consciously parallel pricing coordina-
tion, on which the defending party bears the burden of 
proof by a preponderance of the evidence, that any affirm-
ative defense to price fixing applies. 
SEC. 5. CLARIFYING THE MEANING OF CONTRACT, COM-
BINATION IN THE FORM OF TRUST OR OTH-
ERWISE, OR CONSPIRACY. 
(a) MEANING OF CONTRACT, COMBINATION IN THE 
FORM OF TRUST OR OTHERWISE, OR CONSPIRACY.—A 
tacit agreement is a form of ‘‘contract, combination in the 
form of trust or otherwise, or conspiracy’’ under sections 
1 and 3(a) of the Sherman Act (15 U.S.C. 1, 3(a)). 
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(b) STANDARDS OF PLEADING AND PROOF.—In a 
civil action, including an action brought by the United 
States or by a State attorney general, or by the Federal 
Trade Commission under section 5 of the Federal Trade 
Commission Act (15 U.S.C. 45)— 
(1) a complaint— 
(A) plausibly pleads a ‘‘contract, combina-
tion in the form of trust or otherwise, or con-
spiracy’’ under sections 1 and 3(a) of the Sher-
man Act if the complaint contains factual alle-
gations, which may consist of allegations of con-
sciously parallel conduct, demonstrating that 
the existence of the alleged contract, combina-
tion in the form of trust or otherwise, or con-
spiracy is among the realm of plausible possi-
bilities; and 
(B) need not allege facts tending to ex-
clude the possibility of independent action to 
plausibly plead the existence of a ‘‘contract, 
combination in the form of trust or otherwise, 
or conspiracy’’ under sections 1 and 3(a) of the 
Sherman Act; and 
(2) a claimant— 
(A) demonstrates a genuine dispute of ma-
terial fact that a defending party entered a 
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‘‘contract, combination in the form of trust or 
otherwise, or conspiracy’’ under sections 1 and 
3(a) of the Sherman Act by offering evidence, 
which may be direct or circumstantial, that is 
sufficient to allow a trier of fact to reasonably 
conclude that the defending party entered the 
contract, combination in the form of trust or 
otherwise, or conspiracy; and 
(B) need not offer evidence tending to ex-
clude the possibility of independent action to 
demonstrate a genuine dispute of material fact 
that a defending party entered a ‘‘contract, 
combination in the form of trust or otherwise, 
or conspiracy’’ under sections 1 and 3(a) of the 
Sherman Act; although, at trial, the trier of 
fact may consider the existence or absence of 
evidence tending to exclude the possibility of 
independent action when determining whether a 
defending party entered the contract, combina-
tion in the form of trust or otherwise, or con-
spiracy. 
Æ 
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