The Strategic Use of Public and Private Litigation in Antitrust as Business Strategy

Abstract

This Article claims that there may be a subset of cases in which private rights of action may work with public rights as an effective strategy for a firm to raise costs against rival dominant firms. A competitor firm may bring its own case (which is costly) and/or have government bring a case on its behalf (which is less costly). Alternatively, if the competitor firm has sufficient financial resources, it can pursue an approach that employs both strategies simultaneously. This situation of public and private misuse of antitrust may not happen often. As the Article will explore, it is not only a theoretical argument. This Article will provide examples of where this may have occurred both in antitrust's formative years and in its present.

Keywords: antitrust, enforcement, private rights, federal antitrust, state antitrust, public choice, Standard Oil, Intel, Microsoft, Google,

JEL Classification: K21, L40, L12, D72