Consumer Welfare Without Consumers? Illinois Brick after Apple V. Pepper

7 J. Antitrust Enforcement __ (2019)

10 Pages Posted: 30 Oct 2019 Last revised: 1 Nov 2019

Date Written: October 17, 2019


For forty years U.S. antitrust law has lived with an anomaly of the Supreme Court’s making: having declared its commitment to interpreting those laws as a “consumer welfare prescription,” the Court in Illinois Brick nonetheless effectively barred consumers from suing for damages by limiting the right to sue to direct purchasers. Although the Court appeared poised to further extend Illinois Brick in Apple v. Pepper, it instead turned away from Illinois Brick's emphasis on deterrence to once again consider the role that compensation plays in private damage actions. In doing so, it has invited reconsideration of questions deemed long-settled under Illinois Brick about how U.S. law understands "antitrust injury" and how it strikes the balance between the goals of deterrence and compensation.

Keywords: antitrust, direct purchasers, illinois brick, apple v pepper

JEL Classification: K21, L4

Suggested Citation

Gavil, Andrew I., Consumer Welfare Without Consumers? Illinois Brick after Apple V. Pepper (October 17, 2019). 7 J. Antitrust Enforcement __ (2019), Available at SSRN:

Andrew I. Gavil (Contact Author)

Howard University School of Law ( email )

2900 Van Ness St., N.W.
Washington, DC 20008
United States
202-806-8018 (Phone)
202-806-8567 (Fax)

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