Horizontal Agreements: Concept and Proof

It is well established that, absent some very special circumstances, agreements on price or certain other terms of trade by otherwise competing entities are unlawful per se under the Sherman Act. This article will discuss the concept of "facilitating practices" and assess whether the concept may be useful in filling an important gap in the coverage of the Sherman Act. Some courts have accepted the notion that there can be an illegal agreement even when no words are exchanged and no formal commitments are made. That a tacit agreement can still be an unlawful agreement is not a novel proposition. This is not to say that the facilitating practices approach is a plaintiff's panacea. Despite recognition by a few courts, the concept is still nascent and thus it remains to be seen whether facilitating practices analysis will be accepted as a legitimate approach under section 1 of the Sherman Act.