I n Todd v. Exxon Corp.,[1]� the Second Circuit reinstated a class-action antitrust suit based on an allegedly illegal exchange of information among a group of competitors. The suit alleges that 14 major oil producers, including Exxon, Mobil and Texaco,[2]� violated the antitrust laws by regularly exchanging information relating to compensation paid to managerial, professional and technical (MPT) workers. The plaintiff alleges that the information exchange depressed the salaries of those workers.[3]� What is especially noteworthy is that the suit was reinstated by the Court of Appeals despite the absence of allegations that the defendants participated in an illegal conspiracy in violation of �1 of the Sherman Act.[4]�

In late 2000, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the United States District Court for the Southern District of New York dismissed plaintiff Roberta Todd’s complaint in its entirety for failure to state a claim.[5]� However, the Second Circuit vacated that decision and sent the case back to the district court. In doing so, the Second Circuit reaffirmed the tenet that information-sharing among competitors, apart from any illegal agreement to fix prices, can nevertheless violate the Sherman Act[6]� under certain circumstances.[7]� This holding can have important consequences when counseling firms regarding their interaction with competitors. Special attention also must be given to information exchanges in the context of due diligence with respect to proposed acquisition transactions.

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