When plaintiffs claim to have found direct evidence, the courts usually disagree and treat all of the plaintiff’s evidence as circumstantial. But, as I will show, courts sometimes do find that plaintiffs have produced (or pleaded) direct evidence of agreement. A close look at these cases, I argue, helps clarify what courts mean by a Section 1 agreement and how they expect plaintiffs to prove that one exists.
In the next Part, I consider the relationships among the concepts of direct evidence, agreement, and sufficiency. In Part II, I show that, in general, courts place evidence on the spectrum of direct and circumstantial based on how completely and clearly the evidence represents the alleged agreement. I also show how that same choice affects the courts’ analysis of the sufficiency of the evidence (or allegations) on motions for summary judgment and motions to dismiss. In Part III, I examine decisions in each of the categories of evidence that courts have characterized as direct—documents, recordings, testimony, and admissions. Finally, I argue that, even when direct evidence is not present, the courts’ applications of the concept of direct evidence can provide a model for evaluating the sufficiency of circumstantial evidence of communications as a decisive plus factor in the proof of agreement. Circumstantial evidence then becomes, as some courts have said, “proxies for direct evidence.”
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