The Sherman Antitrust Act
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Section 1 of the Sherman Act makes illegal "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations . . . ." 15 U.S.C. § 1. To state a Section 1 claim, then, a plaintiff must allege (1) an agreement (2) to restrain trade unreasonably. In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 315 (3d Cir. 2010). Lifewatch Services Inc. v. Highmark Inc., (3rd Cir. 2018).
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For an arrangement to be a conspiracy under § 1, it "must embody concerted action." Am. Needle, 560 U.S. at 191, 130 S.Ct. 2201. Concerted action exists where there is an agreement between "separate economic actors pursuing separate economic interests." Id. at 195, 130 S.Ct. 2201 (internal quotation marks omitted). The fact that the co-conspirators are capable, due to their separateness, of acting in concert is not sufficient. Proof of a conspiracy is required. Capital Imaging Assocs., P.C. v. Mohawk Valley Med. Assocs., Inc., 996 F.2d 537, 545 (2d Cir. 1993). North Amer. Soccer League v. US Soccer Feder., 883 F. 3d 32 (2nd Cir. 2018).
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"[I]n a traditional § 2 claim, a plaintiff would have to point to specific, egregious conduct that evinced a predatory motivation and a specific intent to monopolize." Avaya, 838 F.3d at 406 (citing Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 456, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993)). Philadelphia Taxi Ass'nv. Uber Technologies, 886 F. 3d 332 (3rd Cir. 2018).