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 9: Plaintiffs’ Remedies

W. Joseph Bruckner and Matthew R. Salzwedel

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


W. Joseph Bruckner and Matthew R. Salzwedel1 § 9.01 § 9.02 § 9.03 § 9.04 § 9.05 § 9.06 § 9.07 § 9.08 § 9.09 § 9.10 § 9.11 § 9.12 § 9.13 Introduction Single versus treble damages Joint-and-several liability Damages measured Just-and-reasonable-measurement standard 9.05.1 Yardstick method 9.05.2 Violation-free-market method 9.05.3 Regression analysis 9.05.4 Before-and-after method Distribution of damages Prejudgment interest allowed only on a finding of defendants’ bad faith and material delay Postjudgment interest Indemnification or contribution Fees Costs Equitable remedies 9.12.1 Injunctive relief 9.12.1(a) Permanent injunctive relief 9.12.1(b) Preliminary injunctive relief 9.12.2 Declaratory relief Limitation periods 9.13.1 Accrual 9.13.2 Laches 9.13.3 Tolling 9.13.3(a) Pendency of government action 9.13.3(b) Equitable tolling and the fraudulentconcealment doctrine 9.13.3(c) Continuing-violation injury Introduction § 9.01 Unlike most of the world, the United States has long maintained that private victims of anticompetitive conduct are entitled to seek private redress for violations of the 1 W. Joseph Bruckner is a partner and Matthew R. Salzwedel is corporate counsel at HomeServices of America, Inc., in Minneapolis, Minnesota. Lockridge Grindal Nauen P.L.L.P. in Minneapolis, Minnesota. The authors thank Devona Wells for her able research assistance in preparing this chapter. 235 M2937 - FOER 9780857939593 PRINT.indd 235 31/07/2012 10:45 236 Private enforcement of antitrust law in the United States antitrust laws. Indeed, the array of relief available to private plaintiffs, both monetary and injunctive, is designed to encourage plaintiffs to bring private actions. This has the benefit of, first, remedying wrongs done to the plaintiffs themselves and, second, leveling a given competitive playing field. The deterrence...

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