Edited by Einer R. Elhauge
Chapter 14: Antitrust Damages
Daniel L. Rubinfeld* I INTRODUCTION Antitrust private actions have been an important component of civil enforcement in the United States since the passage of the Clayton Act.1 Private actions have been seen, in combination with public enforcement, as a means of achieving an appropriate level of deterrence. However, they have also been viewed as a mechanism for compensating those who were injured by illegal anticompetitive activities.2 In recent years, private antitrust enforcement has been growing outside the United States. Such actions are now available in parts of Asia (e.g., Japan) and in England. Private actions will almost certainly grow throughout the European Union as well.3 To obtain a financial recovery in a private action, the plaintiff must prove three distinct elements: (1) an antitrust violation; (2) antitrust injury;4 and (3) damages – a measure of the extent of the injury. In this chapter, I focus entirely on the important third element – antitrust damages. While much of the analysis is conceptual in nature, the analytical details do depend on the institutional context in which damages are applied. Therefore, unless otherwise noted it will be presumed that we are operating within the US private civil litigation system.5 In order to pursue an antitrust case, the plaintiff must have been injured, i.e., have standing to sue. Under federal law, only direct purchasers have such standing.6 Direct purchaser suits can be brought through the class action mechanism or individually.7 * I wish to thank Justin McCrary and Abe Wickelgren for their helpful comments, and Ashok...
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