Towards a Constructive Public-Private Partnership to Enforce Competition Law

Abstract

Virtually every jurisdiction is considering the most appropriate role for private rights of actions for damages for competition violations. The United States is in the midst of reexamining these issues in the context of the Antitrust Modernization Commission created by Congress. The European Commission is nearing the conclusion of its lengthy review of the proper role of private damage actions in member state courts. Other jurisdictions both new and old to competition enforcement are wrestling with whether and how to implement effective private enforcement.

Some private rights of actions are a necessary compliment to the public enforcement of competition law, but that the precise shape and extent of those rights is heavily dependent on the unique law, history, judiciary, and legal culture of each jurisdiction. At a minimum, some form of damage action for indirect purchasers and some method of class action or other form of aggregate litigation is necessary to have an effective private damage right. It is most ironic that the United States is seeking to restrict those rights of actions precisely at the same time that most of the rest of the world is seeking to expand private rights of actions to supplement existing public enforcement regimes. Neither public or private enforcement should "monopolize" competition law, but must work together to deter, detect, punish, and compensate victims of unlawful anticompetitive conduct.

Keywords: antitrust, private enforcement, damage actions, indirect purchasers, class actions

JEL Classification: K21, K41, K42, L10