Comparative and Foreign Law Commons^™

Pooling And Exchanging Competitively Sensitive Information Among Rivals: Absolutely Illegal Not Just Unreasonable, Peter C. Carstensen, Annkathrin Marschall

University of Cincinnati Law Review

An agreement to exchange competitive sensitive information among rivalrous competitors usually results from an intent to inhibit or restrict the discretion of those firms to engage in competition. Basic economic logic about competition leads to that conclusion. Hence, such an exchange is in itself a naked agreement in restraint of trade without legal justification. Currently, case law requires a more convoluted and irrelevant inquiry into market definition and market power before a court can condemn such agreements. This is the result of ambiguous Supreme Court decisions as well as the recognition that in a few instances there are plausible arguments …