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 15: Proposals for Reform

Pamela Gilbert and Victoria Romanenko

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

Extract

Pamela Gilbert1 and Victoria Romanenko2 § 15.01 § 15.02 § 15.03 § 15.04 § 15.05 § 15.06 § 15.07 § 15.08 § 15.09 § 15.10 § 15.11 § 15.01 Introduction Twombly and Iqbal: Federal pleading standards Class action waivers Indirect purchaser litigation Claims reduction and contribution Reverse payments Minimum resale price maintenance The Robinson-Patman Act The Railroad Antitrust Enforcement Act The Antitrust Criminal Penalty Enhancement and Reform Act Conclusion Introduction The private enforcement scheme of the U.S. antitrust laws has stood the test of time for almost a century. That scheme, as established by § 4 of the Clayton Act in 1914, provides for treble damages and costs, including attorneys’ fees, for any person “injured in his business or property by reason of anything forbidden in the antitrust laws.”3 The Supreme Court has repeatedly found that private actions play a critical role in the enforcement of the antitrust laws and the protection of a fair marketplace. It explained in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. that “[t]he treble-damages provision wielded by the private litigant is a chief tool in the antitrust enforcement scheme, posing a crucial deterrent to potential violators.”4 Over time, some Supreme Court rulings have narrowed the scope of the private right of action and others have expanded it. Congress has also stepped in with legislation that has affected the rules governing private enforcement of the antitrust laws. But throughout the many decades of litigation and legislation, the core enforcement scheme has remained intact. In Congress, the Judiciary Committees in the House of Representatives and the Senate...

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