Joint and Several Liability, Contribution, and Claim Reduction

36 Pages Posted: 25 Dec 2009  

Joseph Angland

White & Case LLP

Date Written: May 25, 2008

Abstract

Three elements of the antitrust remedial scheme - joint and several liability, the absence of a right to contribution, and the offsetting of settlements against pre-trebled damages - combine to create several unfair results. Similarly situated defendants can be forced to bear very different shares of a damage award at a plaintiff’s whim, and defendants collectively face incentives to settle for more than the sum of their expected liabilities at trial. The elimination of joint and several liability would solve these fairness problems, but it would create another one in that the plaintiff, rather than other conspirators, would be forced to bear the risk of a defendant’s being unable to pay a judgment. Creating a right of contribution among coconspirators and reducing pre-trebled damages by the share attributable to a settling defendant is a preferable solution. It would redress the fairness problems without impairing a plaintiff’s right to full compensation. Such contribution and claim reduction, moreover, would not undermine deterrence, discourage fair settlement, or create severe problems of administrability.

Keywords: contribution, claim reduction, damages

JEL Classification: K21, L40

Suggested Citation

Angland, Joseph, Joint and Several Liability, Contribution, and Claim Reduction (May 25, 2008). Available at SSRN: https://ssrn.com/abstract=1528007 or http://dx.doi.org/10.2139/ssrn.1528007

Joseph Angland (Contact Author)

White & Case LLP ( email )

United States

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