COMPETITOR COMMUNICATIONS: FACILITATING PRACTICES OR INVITATIONS TO COLLUDE? AN APPLICATION OF THEORIES TO PROPOSED HORIZONTAL AGREEMENTS SUBMITTED FOR ANTITRUST REVIEW

Communications among competitors are a perennial antitrust concern. Even when the communications do not result in unlawful agreements, the communications may raise concerns under other theories. Two such theories that have received considerable recent attention are "facilitating practices" and "invitation to collude." The goal of this article is to examine the scope and probable limits of these theories in the context of competitor communications and their applicability to a special case: competitor discussions regarding proposed horizontal agreements to be submitted to the Federal Trade Commission (FTC) or the Department of Justice (DOJ) for antitrust review.