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 14: Cy Pres as a Remedy in Private Antitrust Litigation

Albert A. Foer

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


Albert A. Foer1 § 14.01 § 14.02 § 14.03 § 14.04 § 14.05 § 14.06 § 14.07 § 14.08 § 14.09 § 14.10 § 14.01 Introduction The cy pres doctrine in antitrust class action litigation When cy pres is appropriate The importance of a nexus between the case and the remedy Conflicts within the nexus Review standard for cy pres proposals Cy pres as a competition-enhancing remedy The ALI principles of the law of aggregate litigation Recommended best practices Conclusion Introduction The normal remedies in a private antitrust case are a combination of injunctions and treble damages that are paid to the victim or victims of the anticompetitive activity. When an aggregate amount of damages is established, the primary objective is to distribute the damages to those who were injured. In antitrust class action litigation, however, it is often impossible or impracticable to compensate all victims. Administrative concerns may work against payments to individual plaintiffs, as in the case of an extremely large class where the fund is not sufficient to justify the transaction costs of distribution to individual claimants. Consequently, in some cases, there is money left over in the form of unclaimed funds. In such cases, courts sometimes employ the doctrine of “cy pres” to put the unclaimed funds to “the next best use,” which may include awarding funds to public interest organizations or charities for purposes related to the case. There is increasing interest in utilizing the cy pres doctrine as part of an antitrust remedy because of its potential to enhance competition.2 At the same time, cy...

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