Continuing price increases associated with ongoing disruptions to the supply chain during the COVID-19 pandemic have unquestionably caught the attention of competition watchdogs around the world. At the moment, there is a great deal of just speculation as to exactly when and under what theory of liability regulators and private parties will seek antitrust remedies for misconduct related to the supply chain crisis. Conspicuously empty shelves and clogged shipping lanes and ports have made shippers, carriers, and retailers the focus of much of this speculation. However, it is worth considering the potential exposure to liability faced by manufacturers, producers, and other actors on the supply-side for perceived anticompetitive conduct arising out of the supply chain crisis. Private antitrust cases alleging conspiracies to restrict supply and thus to increase prices have become increasingly common. While such cases are difficult to prove, the conditions of the supply chain crisis provide a backdrop for more private lawsuits and possible government enforcement actions under this theory.

By Zach Terwilliger & Evan Seeder[1]

 

I. REGULATORS ARE CURRENTLY TARGETING CARTEL-LIKE BEHAVIOR ASSOCIATED WITH SUPPLY CHAIN DISRUPTIONS

On February 17, 2022, the Department of Justice (“DOJ”) announced an initiative to “deter, detect and prosecute those who would exploit supply chain disruptions to engage in collusive conduct.”[2] In addition to “prioritizing any exi

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