Stripped of obfuscating rhetoric, defendants’ position is that a secret
agreement among horizontal competitors that tampers with the price structure of
their market is not anticompetitive if its only effect is manipulating prices. That is
literally the opposite of the per se rule against price fixing. As this Court has just
powerfully reaffirmed, “any conspiracy ‘formed for the purpose and with the effect
of raising, depressing, fixing, pegging, or stabilizing the price of a commodity …
is illegal per se,’ and the precise ‘machinery employed … is immaterial.’” United
States v. Apple, Inc., 791 F.3d 290, 327 (2d Cir. 2015) (quoting United States v.
Socony-Vacuum Oil, 310 U.S. 150, 223 (1940)). Surprisingly, while this principle
from Socony forms the centerpiece of plaintiffs’ opening brief, defendants do not
even acknowledge its existence, let alone respond.