Antitrust Policy and Interest-Group Politics

By William F. Shughart II | Go to book overview

7
The Private Antitrust Bar

Under both the Sherman Act and the Clayton Act, "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws . . . shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." 1 Standing to sue under the antitrust laws is defined broadly. In addition to private individuals, the term "person" includes corporations, partnerships, and other business entities; municipalities; 2 states; 3 and foreign governments. 4 (But, for purposes of treble-damage actions, the U.S. government is not a "person.") 5

The right of private parties to sue under the antitrust laws was limited somewhat by two important court decisions imposing the requirement that the antitrust injury sustained be "direct." 6 That is, third parties who pay higher prices or are otherwise damaged by the "passing on" of anticompetitive acts or practices do not have a cause for action. 7 Further limitations regarding the right to sue for treble damages deny standing to purchasers from fringe firms who charge the cartel price but are not themselves directly party to a price-fixing conspiracy; 8 to competitors injured by the lower prices made possible by a merger, even if the merger itself is held unlawful; 9 and to states claiming antitrust injury in the form of diminished tax receipts and other economic damage. 10

Despite these qualifications, by almost any standard private suits are where the action is in antitrust, or at least it has been so since the early 1960s. It must be said, however, that the available data with respect to private antitrust litigation are very poor. Indeed, except for matters in which there is a reported decision, no record of the private cases filed exists prior to 1938. 11 By most accounts, though, private antitrust suits were rare before 1960, and few plaintiffs were successful. One estimate suggests that a decision was reached in a total of only 158 private damage suits between 1890 and 1940; 12 another places this number at 175. 13 A total of perhaps 423 private cases were initiated over this entire period, with plaintiffs prevailing in only 13 of the reported decisions. Similarly, there were 619 private cases reported as

-138-

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Antitrust Policy and Interest-Group Politics
Table of contents

Table of contents

  • Recent Titles from Quorum Books ii
  • Title Page iii
  • Contents vii
  • Figures ix
  • Tables xi
  • Foreword xiii
  • Preface xvii
  • Introduction 1
  • Notes 8
  • Part I Normative and Positive Theories of Antitrust 9
  • 2: The Interest-Group Theory of Government 36
  • Part II Private Interests at Work 51
  • 3: Business Enterprise 53
  • 4 - The Antitrust Bureaucracy 100
  • 5: The Congress 104
  • 6: The Judiciary 121
  • 7: The Private Antitrust Bar 138
  • Part III The Political Economy of Antitrust 155
  • 8: Using Antitrust to Subvert Competition 157
  • 9: Reform in the Realm of Interest-Group Politics 177
  • Select Bibliography 197
  • Index 203
  • About the Author 209
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