The Private Antitrust Remedy: Lessons from the American Experience
Loyola University Chicago Law Journal
The P rivate Antitrust Remedy: Lessons from the American Experience
Edward D. Cavanagh 0 1
0 Edward D. Cavanagh, Th e Private Antitrust Remedy: Lessons from the American Experience , 41 Loy. U. Chi. L. J. 629 (2010). Available at:
1 St. John's University School of Law
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The Private Antitrust Remedy: Lessons from the
American Experience
Edward D. Cavanagh*
I. INTRODUCTION
The treble damage remedy has been a centerpiece of private antitrust
enforcement since the enactment of the Sherman Act in 1890.1 Aware
that government resources were limited, Congress created the private
right of action as a complement to public enforcement to assure the
detection and prosecution of antitrust offenders. 2 The private right of
action has proven to be a very potent weapon in the civil enforcement
arsenal.3 It is the very potency of the private remedy, however, that has
made the private right of action a target of criticism by defendants and,
more recently, the courts. 4 Indeed, in the last decade, the private
remedy has been the subject of a full-scale siege in the federal courts.
Ironically, at the very time the private antitrust remedy is seemingly
in eclipse in the United States, antitrust enforcement authorities in
Europe5 and elsewhere are contemplating adoption of the private right
* Professor of Law, St. John's University School of Law.
This article was originally
presented as a paper at the George Washington University School of Law Conference on Private
Enforcement of Competition Law on February 28, 2009. The author wishes to thank the
participants in that conference and especially Professor Stephen Calkins for their very helpful
comments on prior drafts of this article. Portions of this article have been adapted from Edward
D. Cavanagh, Detrebling Antitrust Damages in Monopolization Cases, 76 ANTITRUST L.J. 97
(2009) and used with permission.
1. The provision for mandatory trebling is currently housed in section 4 of the Clayton Act, 15
U.S.C. ยง 15 (2006).
2. See Blue Shield of Va. v. McCready, 457 U.S. 465, 472 (1982) ("Congress sought to create
a private enforcement mechanism that would deter violators and deprive them of the fruits of their
illegal actions, and would provide ample compensation to the victims of antitrust violations.").
3. See Blackburn v. Sweeney, 53 F.3d 825, 829 (7th Cir. 1995) ("Treble damages are a potent
remedy.").
4. See, e.g., Bell At. Corp. v. Twombly, 550 U.S. 544, 558-559 (2007) (citing sources
emphasizing the high cost of discovery in antitrust litigation); Verizon Commc'ns, Inc. v. Law
Offices of Curtis V. Trinko, 540 U.S. 398, 882-83 (2004) (warning that where an industry is
regulated, costly private antitrust litigation may be unjustifiable in that industry because it risks
"chill[ing] the very conduct the antitrust laws are designed to protect")
5. See Commission Green Paperon Damages Actions for Beach of the EC Antitrust Rules,
of action. 6 As in the United States, neither the European Commission
nor the competition authorities in member states have the resources to
detect and prosecute all antitrust transgressions so as to promote a
"competition culture" in Europe.7 This Article examines the private
remedy through the lens of the American system and offers some
observations about the American experience that may prove useful in
designing private remedies schemes in antitrust regimes abroad.
II. THE PRIVATE RIGHT OF ACTION IN THE UNITED STATES
This Part will summarize the elements of the private right of action in
the United States, followed by an explanation of the objectives it seeks
to accomplish.
A. Features
Under section 4 of the Clayton Act,8 "any person injured in his
business or property by reason of anything forbidden in the antitrust
laws" may sue for recovery in federal court. Section 4 further provides
that: (1) the litigants are entitled to a trial by jury; (2) any damage award
from the jury is automatically trebled by the court; and (3) a prevailing
antitrust plaintiff (but not a prevailing defendant) is entitled to
reasonable attorneys' fees as well as treble damages. 9 Under section 5
of the Clayton Act, a final decree in favor of the government in any
public enforcement proceeding "shall be prima facie evidence" in any
subsequent private action on the same claim. 10 In addition, the parties
are entitled to broad pretrial discovery under the Federal Rules of Civil
Procedure, which authorize discovery of "any matter, not privileged
relevant to any claim or defense."' I Finally, many antitrust actions are
brought as class actions. 12 As a result, defendants' financial exposure
COM (2005) 672 final (Dec. 19, 2005), availableat http://eur-lex.europa.eu/LexUriServ/site/en/
com/2005/com2005_0672en01.pdf (identifying obstacles and potential solutions to improve
damage actions under competition law); Andrew I. Gavil, The Challenges ofEconomic Proofin a
Decentralizedand Privatized European Competition Policy System: Les (...truncated)