Contribution in Antitrust: Some Policy Considerations

Abstract:     
Until the recent decision of the Eighth Circuit in Professional Beauty Supply, Inc. v. National Beauty, Inc., the few courts that had considered the issue had uniformly decided that there was no contribution among antitrust defendants. That is no longer the law in the Eighth Circuit and the issue of contribution is one that is receiving active consideration by antitrust courts. The rule against contribution in antitrust cases was heavily influenced by the common law rule against contribution as it arose in tort cases. In tort, and in other contexts, the common law prohibition against contribution has been relaxed or replaced. This article analyzes the policy considerations that should affect the development of contribution rules in the antitrust context. This article discusses considerations of fairness; the effect of contribution on deterrence; and the effect of contribution on judicial administration, specifically, the effect on settlements, the complexity of litigation, and the plaintiff’s control of the lawsuit. Analysis of all of the relevant policy considerations suggest that a rule that bars contribution in all antitrust cases is erroneous. This article also discusses remaining issues that must be resolved if contribution is permitted in antitrust cases.

Number of Pages in PDF File: 21

Keywords: antitrust, contribution, liability

Accepted Paper Series