Asymmetric Stakes in Antitrust Litigation

USC Legal Studies Research Papers Series No. 20-12

37 Pages Posted: 17 Apr 2020 Last revised: 18 Jun 2020

See all articles by Erik Hovenkamp

Erik Hovenkamp

University of Southern California School of Law

Steven C. Salop

Georgetown University Law Center

Date Written: June 10, 2020

Abstract

Private antitrust litigation often involves a dominant firm being accused of exclusionary conduct by a smaller rival or entrant. Importantly, the firms in such cases generally have asymmetric stakes: the defendant typically has a much larger financial interest on the line. We explore the broad policy implications of this fact using a novel model of litigation with endogenous effort. Asymmetric stakes lead dominant defendants to invest systematically more resources into litigation, causing the plaintiff's success probability to fall below the efficient level -- a distortion that carries over to ex ante settlements. We explain that enhanced damages may reduce the problem, but cannot eliminate it. We also show that, in most areas of private law, asymmetric stakes do not distort litigation outcomes in this way; the distortion arises in antitrust only because it proscribes certain ex post settlements, and this constraint influences incentives at the litigation stage. Finally, we consider how courts could correct the distortion created by asymmetric stakes by altering plaintiffs' evidentiary burden.

Keywords: Antitrust, litigation, private enforcement, settlement, exclusion, competition policy, presumptions

JEL Classification: L40, L41, K10, K21, K41

Suggested Citation

Hovenkamp, Erik and Salop, Steven C., Asymmetric Stakes in Antitrust Litigation (June 10, 2020). USC Legal Studies Research Papers Series No. 20-12, Available at SSRN: https://ssrn.com/abstract=3563843 or http://dx.doi.org/10.2139/ssrn.3563843

Erik Hovenkamp (Contact Author)

University of Southern California School of Law ( email )

Los Angeles, CA 90089
United States

Steven C. Salop

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9095 (Phone)
202-662-9497 (Fax)

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