Edited by Roger Zäch, Andreas Heinemann and Andreas Kellerhals
Chapter 2: Fifteen Years of Supreme Court Antitrust Jurisprudence: The Defendant Always Wins
* Warren S. Grimes** INTRODUCTION 1 In June of 1993, the Supreme Court decided Eastman Kodak Co v Image Technical Services, Inc in a manner favourable to private plaintiffs.1 A year later, in Hartford Fire Insurance Co v California, in an enforcement proceeding brought by US States and private parties, the court handed down another decision largely favourable to plaintiffs. That was to be the last Supreme Court decision favourable to plaintiffs in any sort of antitrust suit in a 15-year period extending through today. The clock is still ticking.2 Examining only the private suits decided in the 16 years since Kodak, all 13 of them have been decided adversely to plaintiffs. In addition, in the only post-Kodak decision involving a claim brought by a Federal agency, the court in 1999 ruled unfavourably for the Federal Trade Commission.3 The purpose of this chapter is to provide an overview of the Supreme Court’s approach to antitrust issues involving the 15 post-Kodak decisions, all but one of them favouring defendants.4 * The title recalls Justice Potter Stewart’s famous remark in his dissent in United States v Von’s Grocery Co 384 US 270, 301 (1962), that the ‘sole consistency’ to be found in merger litigation was that ‘the Government always wins’. ** Professor, Southwestern Law School, Los Angeles, CA, Senior Fellow, American Antitrust Institute, Washington, DC, USA. 1 504 US 451 (1992). 2 The court is currently reviewing yet another antitrust private suit, reviewing the decision in LinkLine Communications, Inc v SBC California, Inc 503 F3d...
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