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Contribution in Antitrust: Some Policy Considerations

21 Pages Posted: 26 Jun 2009 Last revised: 29 Apr 2015

Jonathan Rose

Sandra Day O'Connor College of Law Arizona State University College of Law

Date Written: 1979

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.

Keywords: antitrust, contribution, liability

Suggested Citation

Rose, Jonathan, Contribution in Antitrust: Some Policy Considerations (1979). Antitrust Law Journal, Vol. 48, 1979. Available at SSRN: https://ssrn.com/abstract=1426346

Jonathan Rose (Contact Author)

Sandra Day O'Connor College of Law Arizona State University College of Law ( email )

Mail Code 9520
111 East Taylor St.
Phoenix, AZ 85004-4467
United States
480-965-6513 (Phone)

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