Restoring the Legitimacy of Private Antitrust Enforcement

Abstract

This is a draft chapter from the American Antitrust Institute's 2017 recommendations to the 45th President of the United States. It contains a brief but well-deserved defense of the benefits of private antitrust enforcement and a critique of the claims that private enforcement in the United States is excessive, that it leads to overdeterrence, and that the courts are plagued with widespread frivolous antitrust lawsuits. It also offer a number of specific recommendations for the new administration to implement in the private antitrust enforcement area, including:

* Educate the courts, the public, and federal and state legislatures about the virtues of vigorous private antitrust enforcement, including how it compensates victims and deters anticompetitive conduct.

* Actively support efforts by the European Union and other foreign jurisdictions to develop effective private rights of action.

* Encourage states without effective Illinois Brick legislation to adopt strong and comprehensive legislation.

* Support and encourage the formulation of antitrust jury instructions written in language that juries can understand.

* Undertake a comprehensive study into why so few victims of antitrust violations receive full compensation for their losses. A recent study shows that victims of collusion received only a median of 37% and a mean of 66% of the overcharges they paid to illegal cartels in private damages actions. Why weren’t their recoveries closer to the 300% recovery Congress intended? This chapter contains specific recommendations that address this problem.

Keywords: Antitrust, private Antitrust enforcement, private Antitrust cases, Antitrust damages, Antitrust remedies, Antitrust private rights of action, compensating victims of Antitrust violations, deterring Antitrust violations

JEL Classification: K00, K21