Benefits from Antitrust Private Antitrust Enforcement: Forty Individual Case Studies

Abstract:     
This Paper presents information about forty of the largest recent successful private antitrust cases. To do this, the paper gathers information about each case, including, inter alia, (1) the amount of money each action recovered for the victims of each alleged antitrust violation, (2) what proportion of the money was recovered from foreign entities, (3) whether government action preceded the private litigation, (4) the attorney's fees awarded to plaintiffs' counsel, (5) on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and (6) the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two).

A separate Study, forthcoming in the University of San Francisco Law Review (available at: http://ssrn.com/abstract=1090661), aggregates and analyzes this information. That Study also compares the total monetary amounts paid in all forty cases, as well as from the subset of the forty cases that also resulted in criminal penalties, to the total criminal antitrust fines imposed during the same period by the United States Department of Justice ("DOJ"), and also to the deterrence effects of the prison sentences that resulted from DOJ prosecutions during this period. The overall goal of the project is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws serves its intended purposes and is in the public interest.

The results of the Study show that private antitrust enforcement helps the economy in many ways. It very significantly compensates victims of illegal corporate behavior, and is almost always the only way they can receive redress. Private enforcement often prevents foreign corporations from keeping the many billions of dollars they illegally obtain from individual and corporate purchasers in the United States. The Study also shows that almost half of the underlying violations were first uncovered by private attorneys, not government enforcers, and that litigation in many other cases had a mixed public/private origin. The evidence also shows that private litigation probably does more to deter antitrust violations than all the fines and incarceration imposed as a result of criminal enforcement by the U.S. Department of Justice. This is one of the most surprising results from our Study. We do not know of any past study that has documented that private enforcement has such a significant deterrence effect as compared to DOJ criminal enforcement.

Keywords: antitrust law, private enforcement, empirical research

Working Paper Series