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It is not easy for the plaintiffs to deny an agreement between businesses in the cartel case if there are direct evidences, such as written documents, records of executives’ conversation and leniency applicant’s testimony. Therefore, the plaintiff may deny the existence of an agreement in cartel lawsuits, especially when there is a tacit agreement.

The Supreme Court ruled that the Fair Trade Commission (FTA) must prove the meeting of minds and parallel behavior in order to recognize anticompetitive collaborative acts.

In my opinion, in order for the FTC to obtain a proof of tacit agreement, it is necessary to demonstrate not only the parallel behavior between undertakings but also the plus factors. In fact, there is a judgment of the Supreme Court that is similar to this opinion.

If the price of an oligopoly market is fixed, the price will not necessarily rise together. Prices are gradually rising and falling, and although the rates of rising and falling are somewhat different, parallel behavior may be recognized. Limiting the scope of parallel behavior seems to be a rational representation of the theory of interdependence in oligopoly markets.

In addition, plus factors must be not only good in quality but also abundant in quantity. Even if there are meetings for a considerable period of time through some kind of organization or trade association, it is not enough to prove the tacit agreement for only such reason. In order to recognize this, further evidence is needed, including concrete conversations on pricing and systematic exchange of information on pricing during the meetings.

The FTC’s standard for the burden of proving cartels may be similar to that of civil cases.

The court should recognize the danger of excessive execution and adjudication on whether there is a tacit agreement on each case.