Kenneth L. Racowski, counsel in Buchanan's litigation section, recently wrote an article, “’Chocolate’ Decision Confirms High Evidentiary Standard in Price-Fixing” which ran in The Legal Intelligencer. The article focuses on In re Chocolate Confectionary Antitrust Litigation, 801 F.3d 383 (3d Cir. 2015), in which the U.S. Court of Appeals for the Third Circuit upheld the district court's dismissal of claims alleging an international conspiracy to raise the price of chocolate candy bars by the three leading U.S. chocolate manufacturers - Hershey, Nestle and Mars. The court reiterated the high evidentiary standard that plaintiffs face when alleging price-fixing claims, particularly in highly concentrated markets. Despite evidence of multiple, parallel price increases in the U.S. market and evidence of an antitrust conspiracy in a foreign market, the court determined there was insufficient evidence from which to infer the existence of a U.S. antitrust conspiracy. The court's opinion updated the Third Circuit's analytical framework for applying so-called "plus factors" when evaluating evidence of alleged parallel conduct. This was also the first time that the Third Circuit has addressed the impact of a foreign conspiracy upon allegations of price-fixing in the U.S. market.
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