Private Enforcement of Antitrust Law in the United States

Private Enforcement of Antitrust Law in the United States

A Handbook

Edited by Albert A. Foer and Randy M. Stutz

Private Enforcement of Antitrust Law in the United States is a comprehensive Handbook, providing a detailed, step-by-step examination of the private enforcement process, as illuminated by many of the country’s leading practitioners, experts, and scholars.

Chapter 6: Procedural Defenses Short of Trial

Jonathan L. Rubin

Subjects: law - academic, competition and antitrust law, law -professional, competition and antitrust law


Jonathan L. Rubin1 § 6.01 Introduction § 6.02 Dismissal for lack of subject matter jurisdiction 6.02.1 Challenges to Article III jurisdiction 6.02.1(a) Constitutional standing 6.02.1(b) Ripeness 6.02.1(c) Fitness for judicial resolution and the political question doctrine 6.02.1(d) Rule 12(b)(1) and 12(b)(6) motions distinguished 6.02.1(e) FTAIA not jurisdictional 6.02.2 Challenges to federal question jurisdiction 6.02.2(a) Statutes authorizing a private right of action 6.02.2(b) Statute of limitations 6.02.3 Challenges to diversity jurisdiction 6.02.4 Challenges to supplemental jurisdiction § 6.03 Pre-answer defenses 6.03.1 Rule 12(b)(6) pre-answer motion to dismiss for failure to state a claim upon which relief may be granted 6.03.1(a) Non-cognizable claims and implied immunity 6.03.1(b) Act of state doctrine 6.03.1(c) Failure to allege facts sufficient to state a cognizable legal claim 6.03.1(d) Dismissal for lack of antitrust standing 6.03.1(e) Insufficient effect on U.S. domestic commerce or imports 6.03.1(f) Express antitrust immunities and exemptions 6.03.2 Rule 12(b)(7) pre-answer motion to dismiss for failure to join a required party 6.03.3 Rule 12 motions objecting to personal jurisdiction, venue, and service of process 6.03.3(a) Dismissal for lack of personal jurisdiction 6.03.3(b) Motion to dismiss or to transfer for improper venue 6.03.3(c) Dismissal for insufficient process or service § 6.04 Summary proceedings 1 Managing Member, Rubin PLLC, Washington, D.C. The author is an attorney and Ph.D economist specializing in antitrust litigation and counseling and is solely responsible for the contents of this chapter. He...

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