## Facts

- Consumers brought a consolidated class action alleging that four major wireless carriers (AT&T, Verizon Wireless, Sprint, and T-Mobile) conspired to fix prices for per-use (PPU) text messages in violation of Sherman Act § 1.
- The carriers collectively supplied roughly 90% of U.S. text-messaging services during the relevant period.
- Plaintiffs alleged that the carriers raised PPU rates in a uniform pattern (e.g., 10¢ to 15¢ to 20¢ per message) despite declining costs of providing text-messaging service.
- Plaintiffs alleged coordinated shifts in pricing structures, including elimination of certain discounts and movement toward bundled plans.
- Plaintiffs relied on circumstantial evidence, including market concentration, barriers to entry, and opportunities to communicate through a shared trade association (CTIA).
- After a prior appeal sustained the complaint at the pleading stage, the parties conducted approximately three years of discovery.
- Defendants moved for summary judgment, arguing the record showed lawful interdependent pricing (tacit collusion), not an unlawful agreement; the district court granted the motion.

## Issues

1. Whether the summary-judgment record contained sufficient evidence for a reasonable jury to find an actual agreement among the carriers to fix PPU text-message prices under Sherman Act § 1.
2. Whether parallel price increases, oligopoly market structure, and trade-association contacts can, without more, support an inference of concerted action rather than independent but interdependent conduct.
3. Whether the evidence tended to exclude the possibility of independent action, as required to survive summary judgment on a horizontal price-fixing theory.

## Decision

- The Seventh Circuit affirmed summary judgment for defendants.
- The court held that plaintiffs’ proof showed, at most, tacit collusion and conscious parallelism in a concentrated market, not the “meeting of minds” required for § 1 liability.
- Evidence of uniform price increases and similar pricing structures was deemed consistent with lawful conduct and insufficient to infer an agreement.
- A T-Mobile executive email describing a price increase as “colusive [sic] and opportunistic” was treated as ambiguous and not probative of a multi-firm agreement when read in context.
- Participation in and information exchange through a trade association did not establish conspiracy absent evidence that the association was used to form or implement an agreement.

## Legal Principles

- Sherman Act § 1 requires proof of concerted action (an agreement); parallel conduct in an oligopoly, without more, does not establish liability.
- At summary judgment in a horizontal price-fixing case, plaintiffs must present evidence that tends to exclude the possibility of independent action.
- “Plus factors” (market concentration, barriers to entry, opportunities to communicate, information exchange) may support an inference of agreement only if they meaningfully distinguish conspiracy from lawful interdependence.
- Ambiguous internal statements are insufficient unless they reasonably support an inference of coordination among competitors rather than unilateral strategy.
- Trade-association membership and communications are not unlawful per se and require proof that they were used as a mechanism for collusion.

## Conclusion

The Seventh Circuit concluded that, after extensive discovery, the circumstantial record did not permit a reasonable inference of an actual price-fixing agreement among the carriers; it supported only lawful interdependent behavior typical of oligopoly markets, so summary judgment for defendants was proper.


In re Text Messaging Antitrust Litig., 782 F.3d 867 (7th Cir. 2015)