The Private Antitrust Remedy: Lessons from the American Experience
41 Loy. L.J. 629 (2010)
24 Pages Posted: 12 Aug 2015
Date Written: 2010
The treble damage remedy has been a centerpiece of private antitrust enforcement since the enactment of the Sherman Act in 1890. Aware that government resources were limited, Congress created the private right of action as a complement to public enforcement to assure the detection and prosecution of antitrust offenders. The private right of action has proven to be a very potent weapon in the civil enforcement arsenal. It is the very potency of the private remedy, however, that has made the private right of action a target of criticism by defendants and, more recently, the courts. Indeed, in the last decade, the private remedy has been the subject of a full-scale siege in the federal courts. Ironically, at the very time the private antitrust remedy is seemingly in eclipse in the United States, antitrust enforcement authorities in Europe and elsewhere are contemplating adoption of the private right of action. As in the United States, neither the European Commission nor the competition authorities in member states have the resources to detect and prosecute all antitrust transgressions so as to promote a "competition culture" in Europe. This Article examines the private remedy through the lens of the American system and offers some observations about the American experience that may prove useful in designing private remedies schemes in antitrust regimes abroad.
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