## Facts

- Six corporate real-estate brokerages and three individuals competed in Montgomery County, Maryland, primarily reselling homes listed through the local board of realtors’ multiple-listing service, which disclosed commission terms to competitors.
- In summer 1974, the prevailing commission rate was 6% of the sale price; some 7% listings existed when accompanied by additional services.
- The local brokerage market faced economic pressure: increasing listings but declining sales, scarce mortgage funds, and rising operating costs.
- On September 5, 1974, John P. Foley, Jr. hosted a dinner at the Congressional Country Club attended by leading Montgomery County realtors, including representatives of each defendant.
- After the meal, Foley announced his firm would raise its commission rate from 6% to 7%, followed by discussion concerning the change and its feasibility; evidence included references to a prior unsuccessful effort to raise rates when competitors did not follow.
- In the months after the dinner, all defendants raised their listed commission rates to 7%.
- Trial testimony indicated Foley later contacted other defendants and urged that the group “stick to the agreement” so the higher commission rate would succeed.

## Issues

1. Whether the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt that defendants agreed to fix real-estate commission rates in violation of § 1 of the Sherman Act.
2. Whether the jury could infer agreement from defendants’ attendance at the dinner, their conduct during the discussion (including silence or acquiescence), and their subsequent parallel adoption of the 7% rate.
3. Whether alleged errors in jury instructions and evidentiary rulings concerning the dinner discussion, market conditions, and post-dinner contacts required reversal.

## Decision

- The Fourth Circuit affirmed the convictions of all defendants.
- The court held the government presented sufficient circumstantial and direct evidence to support a finding of a price-fixing agreement under § 1.
- The court rejected the claim that the verdict rested on improper inferences from mere attendance, concluding the jury could consider the meeting context, the content of the discussion, and follow-on conduct.
- The court found no reversible error in the trial court’s instructions or in admitting evidence of the dinner discussions, economic conditions, and post-dinner communications.

## Legal Principles

- A Sherman Act § 1 conspiracy may be proved by circumstantial evidence; an express written or verbal contract is not required.
- Parallel pricing, standing alone, is insufficient to establish agreement, but parallel conduct combined with “plus factors” can support an inference of concerted action.
- Relevant plus factors include competitor meetings that invite coordinated action, discussion of a specific common rate, follow-up communications reinforcing collective implementation, and subsequent uniform adoption of the discussed rate.
- A jury may treat silence or acquiescence in the face of an invitation to coordinate, together with later conforming conduct, as evidence supporting a finding of agreement, depending on the surrounding circumstances.
- Evidence of market conditions and post-meeting contacts may be admitted to provide context and support inferences about motive and the existence of an agreement.

## Conclusion

The Fourth Circuit upheld felony convictions for fixing real-estate commissions, ruling that the dinner meeting, discussion of a specific 7% rate, subsequent uniform rate increases, and follow-up “stick to the agreement” communications provided sufficient evidence of an unlawful agreement under Sherman Act § 1, and that the challenged instructions and evidentiary rulings did not warrant reversal.


United States v. Foley, 598 F.2d 1323 (4th Cir. 1979)