Edited by Albert A. Foer and Randy M. Stutz
Chapter 11: Interaction of Public and Private Enforcement
Kevin J.L. O’Connor, Anthony J. Gaughan, Hannah L. Renfro, Wendy K. Arends, Adam C. Briggs and Wendy K. Arends
11 Interaction of public and private enforcement Kevin J.L. O’Connor, Anthony J. Gaughan, Hannah L. Renfro, Adam C. Briggs, and Wendy K. Arends1 § 11.01 Introduction 11.01.1 Varying remedies 11.01.2 Varying incentives and concerns § 11.02 Public enforcers often initiate cases before private plaintiffs 11.02.1 Applicability of rulings in prior government cases 11.02.2 Limits on private plaintiffs’ use of materials and information acquired in the government’s suit § 11.03 Private plaintiffs take the lead in initiating some cases 11.03.1 Advantages of private enforcement 11.03.2 Difficulties faced by private plaintiffs § 11.04 Coordinated action among private and public plaintiffs 11.04.1 Parens patriae actions 11.04.2 Private class actions 11.04.3 Overlapping lawsuits: Case examples 11.04.4 Coordination problems and solutions 11.04.4(a) The investigative and precomplaint case strategy phase 11.04.4(b) Litigation phase 11.04.4(c) Settlement/arbitration phase 11.04.5 Qualitative and quantitative results of multiple layers of enforcement 11.04.6 The multiple layers create a unique antitrust enforcement landscape § 11.05 Conclusion § 11.01 Introduction One of the unique features of antitrust enforcement is the multiplicity of potential plaintiffs, governmental and private, authorized to challenge allegedly unlawful conduct under 1 Kevin J. O’Connor is a shareholder with Godfrey & Kahn, S.C., and chairs the firm’s Antitrust and Trade Regulation Practice Group. Before joining Godfrey & Kahn, O’Connor headed the Wisconsin Department of Justice’s Office of Consumer Protection and Antitrust. While an Assistant Attorney General in Wisconsin DOJ, O’Connor also chaired the National Association of Attorneys General’s Multistate Antitrust Task Force. He has exhaustive experience in private and public antitrust actions. Hannah L. Renfro is...
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