Private antitrust litigation in the United States: overview
A Q&A guide to private antitrust litigation in United States.
The Q&A provides a high level overview of the legal basis for bringing private antitrust litigation actions; parties to an action; limitation periods and forum; standard of proof and liability; costs and timing; pre-trial applications and hearings; alternative dispute resolution; settlement or discontinuance of an action; proceedings at trial; available defences; available remedies; appeals and proposed legislative reform.
This Q&A is part of the Private Antitrust Litigation Global Guide.
The private antitrust litigation global guide serves as a single, essential, starting point of practical reference for both clients and practitioners in considering the various merits of commencing, defending or settling antitrust claims.
Legal basis for bringing private antitrust litigation actions
US antitrust laws provide for a dual enforcement regime. Generally, private litigation follows closely after the announcement of a government investigation or enforcement action. However, private antitrust litigants can also bring stand-alone actions. When a government investigation has been commenced, a private litigant need not await its completion, and a private litigant can also continue even after the government investigation is completed without a finding of a violation.
At the federal level, the primary statutory source of antitrust liability is the Sherman Act, which prohibits conspiracies in restraint of trade and unlawful monopolisation (see Question 6).
The legal basis for commencing a private federal antitrust action is contained in the Clayton Act (15 USC § 15a) (see Question 37). Additionally, the Attorneys General of individual states have statutory authority to commence federal antitrust actions on behalf of their citizens (15 USC § 15c).
Parties to an action
To bring an action, a party must have constitutional "standing", that is, the claimant must have suffered a concrete, particularised harm that is:
Actual or imminent (not conjectural or hypothetical).
Fairly traceable to the alleged conduct.
Can be redressed by a favourable decision.
Additionally, an antitrust claimant must demonstrate the related, but distinct, concepts of:
Antitrust injury. Antitrust injury requires the claimant to allege harm to competition (not just harm unique to the claimant) and which is the type of harm the antitrust laws were intended to prevent.
Antitrust standing. Antitrust standing asks whether the claimant is the proper party to bring the private antitrust action.
Antitrust standing is limited to consumers and competitors in the relevant market and, as recognised by some courts, those whose injuries are "inextricably intertwined" with the alleged conduct. A claimant's injury is "inextricably intertwined" with the alleged conduct if the claimant was directly targeted and its harm was a necessary step in effecting the ends of the alleged illegal scheme (Hanover 3201 Realty, LLC v Village Supermarkets, Inc, 806 F.3d 162 (3d Cir 2015)).
For consumer claims brought under federal antitrust laws, antitrust standing is generally limited to direct purchasers. According to the Supreme Court's holding in Illinois Brick v Illinois, 431 US 720 (1977), indirect purchasers lack standing to assert claims under federal antitrust laws. The corollary to this rule is that defendants cannot assert a "pass-on defense" (see Question 35). Some state antitrust laws permit both direct and indirect purchasers to pursue relief under their antitrust statutes (often termed "Illinois Brick repealer statutes").
In addition to antitrust standing and injury, a claimant must also provide sufficient facts to plausibly state that a violation of the antitrust laws has occurred (Bell Atlantic Corp v Twombly, 550 US 544 (2007)). The specific facts that must be alleged by the claimant will depend on the nature of the particular antitrust claim asserted. For example, in a price fixing antitrust case, the most important question is often whether the claimant has adequately alleged an antitrust conspiracy involving two or more parties. In contrast, in a monopolisation case, the core dispute is often over the defendant's alleged share of some relevant market.
In some instances, courts will not permit a party to enforce an agreement that violates antitrust laws. Generally, US courts will not hear an action by one party to an agreement in restraint of trade against another party to the agreement. However, in Perma Life Mufflers v International Parts Corp, 392 US 134 (1968), the Supreme Court stated that in pari delicto (that is, "of equal fault"), is not a viable defence to an antitrust conspiracy claim, as the law encourages the suit to further the overriding public policy in favour of competition. Moreover, the claimant itself may be subject to civil and criminal penalties for their own role in the illegal conduct. However, the decision in Perma Life did not entirely foreclose the defence. Since that decision, other federal courts have considered, and several have recognised, that a claimant's "complete, voluntary, and substantially equal participation" in the alleged conduct will preclude recovery.
It is possible to bring actions on behalf of multiple claimants. There are two options available, either:
Joinder. Multiple claimants can bring a single claim together as a matter of "joinder". The parties act only on their own behalf and the outcome binds only the named claimants and, in some instances, any other party in privity with those claimants. Class certification is not required for multiple claimants to proceed together.
Class action. One or more claimants can bring a class action in which the named claimants represent a group of similarly situated parties. Depending on the relief sought, the class can proceed as either an opt-in class or an opt-out class:
for an opt-in class, the outcome is binding only for parties who opted into the class action; and
for an opt-out class, the outcome is binding for all members of the class who did not opt out prior to the court's deadline.
For a case to proceed as a class action, a class must be certified by the court, which will also appoint legal counsel to represent the class. To obtain class certification, the named claimants must establish with evidence, that:
The class members are so numerous that joinder of all members is impracticable.
There are questions of law or fact common to the class.
The claims or defences of the representative parties are typical of the claims or defences of the class.
The representative parties will fairly and adequately protect the interests of the class (FRCP 23(a)).
Additionally, when a class is seeking to recover damages, the named claimants must show that questions of law or fact common to class members predominate over any questions affecting individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the claim (Rule 23(b)(3)). If the class is only seeking an injunction or a declaratory judgment, the key consideration is whether the requested relief is cohesive with respect to the members of the proposed class.
When the court certifies the class, it will define the class and a person must fall within this definition to be a member of the certified class.
The United States has a dual judicial system with both state and federal courts. Federal courts have exclusive "subject matter jurisdiction" over federal antitrust claims (28 USC §1337(a)). Federal courts may also exercise jurisdiction over state law antitrust claims if there is a separate jurisdictional basis, for example, if there is "diversity of citizenship" between the parties and the amount in controversy exceeds US$75,000 (28 USC §1332), or if the state law antitrust claims are sufficiently related to a federal claim that the court can exercise "supplemental" jurisdiction over them (28 USC, §1367).
A court must also have "personal jurisdiction" over the defendant. US due process principles establish minimum requirements for personal jurisdiction, which fall into two categories, that is:
General jurisdiction. This is based on a party's domicile (for a corporate entity, its state of incorporation and its principal place of business), and grants a court jurisdiction over the defendant regardless of the underlying conduct at issue.
Specific jurisdiction. This is based on the relationship between the defendant, the forum, and the underlying controversy. The relationship must create a substantial connection with the forum state, which arises out of contact the defendant itself creates with the forum and contact with the state itself (not merely contact with persons who reside there).
There are also jurisdictional limitations on the extent to which US antitrust laws have extraterritorial reach and apply to the conduct of foreign defendants. The Foreign Trade Antitrust Improvements Act (FTAIA) limits the application of the Sherman Act to non-import trade or commerce with foreign nations unless the conduct has a direct, substantial, and reasonably foreseeable effect on US trade or commerce (whether domestic, import, or export). The application of US antitrust laws to foreign defendants is also subject to principles of sovereign immunity.
Actions can be brought against individuals. This arises in two scenarios, either:
An individual engages in anticompetitive conduct on his or her own behalf.
An officer, director or other agent acts on behalf of a company engaged in such conduct.
In the first scenario, the individual is responsible for his own conduct. In the second scenario, an officer or director of a company is liable if he participated in the unlawful acts or acquiesced or ratified the unlawful actions of other corporate personnel. At least one court has suggested that personal liability arises only for per se antitrust violations (Murphy Tugboat v Shipowners & Merchants Towboat, 467 F. Supp. 841 (ND Cal.1979), aff'd sub nom Murphy Tugboat Co v Crowley, 658 F.2d 1256 (9th Cir 1981)), but other courts have questioned that is a correct statement of law (Monarch Marking Sys v Duncan Parking Meter Maint, 1986 US Dist LEXIS 28261 (ND Ill 1986); Deutscher Tennis Bund v ATP Tour, Inc, 610 F.3d 820 (3d Cir 2010)).
If the individual is a foreigner, the court must determine whether the individual's conduct has a sufficient connection to the United States under the Foreign Trade Antitrust Improvements Act. Additionally, the court must determine whether the individual outside of the jurisdiction will be entitled to sovereign immunity (see Question 4).
Limitation periods and forum
A claim under the federal antitrust statutes is subject to a four year statute of limitations (section 4B, Clayton Act 15 USC § 15b). Generally, an antitrust claim accrues and the four year limitations period begins to run when the claimant first suffers harm to its business or property. However, if there is a later overt act which furthers the antitrust conspiracy or a new injury attributable to the earlier antitrust conspiracy, the statute of limitations may be re-triggered (Zenith Radio Corp v Hazeltine Research, 401 US 321, 338-39 (1971)).
The four year limitations period may be tolled under a variety of circumstances. Section 5(i) of the Clayton Act provides for tolling during the pendency of a government antitrust suit and for one year after, if the private suit is "based in whole or in part on any matter complained of" in the government action (15 USC § 16(i)).
When an action is commenced as a class action, the statute of limitations on antitrust claims by parties who are absent members of the proposed class are tolled until a decision has been made on class certification. If certification is denied, the statute begins to run again, and those parties who have not yet filed suit in their own name may do so, within what remains of the limitations period, or seek to intervene in the existing action (Crown, Cork & Seal Co v Parker, 462 US 345 (1983)).
The statute of limitations may also be tolled on a theory of fraudulent concealment, if the claimant can show that the:
Defendant engaged in acts designed to conceal the alleged antitrust violation.
Claimant exercised reasonable diligence in discovering the anticompetitive conduct.
Claimant was not aware, nor should have been aware, of the facts supporting the antitrust claim.
Claims arising under federal antitrust law must be brought in federal district court (28 USC § 1337(a)). State antitrust claims are generally filed in state court, since there is no "federal question" jurisdiction, unless the claimant can establish an independent basis, such as "diversity of citizenship", to proceed in federal court (see Question 4).
A claimant with a federal antitrust claim can file its claim where the defendant is an inhabitant or in any district where the defendant can be found or transacts business (section 12, Clayton Act, 15 USC § 22). "Transacts business" is interpreted broadly to mean conducting business "of any substantial character" (United States v Scophony Corp of Am, 333 US 795, 807 (1948)). However, some courts have held that 15 USC § 22 does not establish venue over a defendant when their business in a district is de minimis (KM Enterprises, Inc v Glob Traffic Techs, Inc, 725 F.3d 718, 731 (7th Cir 2013)).
Because of the options given to a claimant under the Clayton Act in choosing a venue for its antitrust claim, similar antitrust complaints are often filed in two or more different federal district courts, subject to 15 USC § 22. When complaints with one or more common issues of fact are pending in different district courts, a motion can be made to have the lawsuits consolidated in a single district court for pre-trial proceedings (28 USC § 1407 (Multidistrict litigation)).
The Clayton Act and the federal rules of civil procedure give antitrust claimants wide discretion in choosing where to file their antitrust complaints. Among the factors that the claimant takes into account will be how favourable the antitrust case law is in the geographic "circuit" where the district court sits, whether the judges in the district on the whole are perceived to be pro-claimant or defence oriented, and the convenience of the district to the claimants and their witnesses. In addition to the Federal Circuit, which handles special appeals, there are twelve geographic Circuits within the federal court system and, absent controlling precedent from the Supreme Court, substantive antitrust law may potentially vary from one Circuit to the next.
Standard of proof and liability
Generally, the claimant has the evidentiary burden to prove each element of its claim(s) by a preponderance of the evidence, and the defendant typically has a comparable burden of proof with respect to its affirmative defence(s). The substance of the proof that the parties are required to present depends on the nature of the antitrust claim.
Section 1 of the Sherman Act declares "every contract, combination…or conspiracy" in restraint of trade illegal (15 USC § 1). However, the Supreme Court has construed this provision to prohibit only unreasonable restraints of trade. For many antitrust violations, a decision on whether the alleged restraint is unreasonable will be evaluated by the "rule of reason". The claimant has the initial burden to show an agreement in restraint of trade, and that the agreement produced adverse, anti-competitive effects within a relevant product and geographic market. The claimant can meet its burden on the latter by showing the existence of actual anti-competitive effects (such as reduced output, increased prices, or reduced quality), or by showing that the defendants possessed "market power", that is, the ability to raise prices above those that would prevail in a competitive market. If the claimant makes this initial showing, the burden of proof shifts to the defendant to show that the challenged conduct promotes a sufficiently pro-competitive objective. If the defendant rebuts, the burden returns to the claimant to show that the chosen restraint is not reasonably necessary to achieve the stated objective.
Some section 1 claims are subject to a stricter rule, which is reserved for certain agreements or practices that are deemed to have a pernicious effect on competition and lack of any redeeming virtue. These include price fixing between competitors and market allocation agreements, among others. If the claimant successfully proves the agreement, competitive harm from a per se violation is presumed, and the defendant is generally unable to offer a pro-competitive justification.
The selection of a rule of reason or per se standard in a particular case is a question of law for the court to determine. The rule of reason will apply unless the alleged conduct has already been found to be subject to the per se standard, or courts are sufficiently familiar with the conduct to conclude it lacks any redeeming virtue.
Section 2 of the Sherman Act prohibits (15 USC § 2):
Attempts to monopolise.
Conspiracies to monopolise.
In monopoly cases, the claimant must establish:
Exclusionary conduct, or wilful acquisition or maintenance of the monopoly.
This second element is intended to protect companies that acquire and maintain monopoly power through legitimate means, such as superior knowledge or skill. Actionable exclusionary conduct includes, among others:
Unlawful tying or bundling.
In some cases, the claimant will claim both a conspiracy in restraint of trade, under section 1 of the Sherman Act, and unlawful monopolisation in violation of section 2 of the Sherman Act.
Alleged co-conspirators found liable for an antitrust violation are joint and severally liable, and there is no right of contribution among the defendants. Successful claimants can choose to pursue the entire award from one of several defendants. However, that defendant does not have the right to compel its alleged co-conspirators to contribute, even if they are found liable to the claimant, and even if the co-defendant paid an amount lower than its pro rata share of liability (either through settlement or a judgment).
To address joint and several liability, co-defendants in some antitrust cases will enter into judgment sharing agreements, in which they agree to pay their pro rata share of any judgment or, if they settle, include a provision in the settlement agreement that the claimant will not pursue that share against the non-settling defendants. The validity of judgment sharing agreements has been challenged, but courts have generally upheld them.
Costs and timing
A defendant involved in complex antitrust litigation can expect attorneys' fees and costs to often exceed US$1 million per year, with such fees and costs increasing substantially if the case proceeds past an early motion to dismiss and into fact discovery. One of the significant costs in the typical antitrust case is expert-related expenses, including the professional fees of testifying expert witnesses. Another large driver of fees and costs related to litigation is discovery of electronically stored information (ESI), predominantly e-mails. Collection, review, and production of ESI vary based on the size of the ESI. However, in a large antitrust case, ESI can be one of the largest line items in the budget. The fees associated with reviewing e-mails and other electronic documents can account for around three-quarters of the ESI budget item.
US jurisdictions follow the "American Rule", under which each party pays its own fees and costs in the absence of a contractual or statutory fee-shifting provision. A successful claimant under federal antitrust laws can seek an award of fees and costs, but the statutes are not reciprocal for a successful antitrust defendant. Often, a successful defendant has no recourse to seek attorneys' fees from the claimant. However, Federal Rule of Civil Procedure 54(d) provides for an award of costs as a matter of course to the prevailing party. Available costs are defined by statute and are limited to the following (28 USC § 1920):
Fees paid to the clerk or the US marshals.
Fees for transcripts necessarily obtained for use in the case.
Fees for witnesses and printing.
Fees for exemplification and costs of making copies necessarily obtained for use in the case.
Docket fees under 28 USC § 1923.
Compensation of court-appointed experts and interpreters, and salaries, fees, expenses and costs of special interpretation services under 28 USC § 1828.
Any requested costs must come within the ordinary meaning of the costs identified in 28 USC § 1920 (Kouichi Taniguchi v Kan P Saipan, Ltd, 132 S. Ct .1997 (2012)).
A defendant in an antitrust action may obtain insurance that will cover potential antitrust actions, including paying for fees and costs associated with defending the action. The availability of insurance for an action depends on the terms and scope of the particular insurance policy. Some policies may provide insurance coverage for certain types of antitrust claims (for example, those subject to the rule of reason), and not others (for example, per se offences).
The availability of insurance to claimants for costs associated with bringing antitrust claims is less certain. In the context of patent-related claims, insurance for costs associated with the action may be available to claimants. The availability is driven by the insurance industry's willingness to provide insurance, but it could also be subject to limitations on third party funding (see Question 14).
Generally, a third party can fund the costs of bringing an action. Many US jurisdictions permit a third party to finance commercial litigation, including:
Delaware (Charge Injection Techs, Inc v EI Dupont De Nemours & Co, 2016 WL 937400 (Del Super Mar 9, 2016)).
Illinois (Miller UK Ltd. v Caterpillar, Inc, 17 F. Supp. 3d 711 (ND Ill 2014)).
Arizona, California, Connecticut, Missouri, New Jersey, New Mexico, and Texas (ABA Commission on Ethics 20/20, White Paper on Alternative Litigation Finance).
However, there are some jurisdictions that may prohibit it by statute or under the common law doctrines of maintenance, champerty or barratry.
Third party funding is also subject to the rules of professional conduct that govern the party's lawyer. The lawyer is prohibited from accepting compensation from a third party unless the client provides informed consent, there is no interference with the lawyer's professional judgement or the lawyer-client relationship, and the client's information is maintained in confidence.
Claims under US antitrust laws are assignable provided that the assignment is express, but courts have not determined whether they can be assigned to otherwise disinterested third party funders. In many cases, the assignee otherwise had an interest, either as a regulator or as an indirect victim of the alleged violation. Assignment to a third party funder may be subject to the same considerations discussed in Question 14.
It is possible for a defendant to a claim to bring an application for security for costs. In federal court, the prevailing party can recover costs as a matter of course (Federal Rule of Civil Procedure 54(d)) (see Question 12). The authority to award costs to the prevailing party implies a power to require posting security reasonably calculated to cover those costs, even though there is no statute or rule expressly authorising a requirement to post a bond (Gay v Chandra, 682 F.3d 590 (2d Cir. 2012) (citing cases)). Requiring security is subject to the court's discretion, which must not be exercised in a manner that effectively denies a party access to court.
The period of time from commencement to first judgment can vary substantially, depending in part on the nature of the claim and the number of parties involved. An action may be:
Dismissed after the complaint is filed.
Dismissed after discovery.
Resolved at trial.
Settled at any time.
Available statistics from US federal courts suggest that the median period of time to dispose of any civil case is 8.9 months, when disposed by the court during or after pre-trial proceedings in around 13 months, and when disposed by the court after trial in about 25 months. Due to the complicated nature of antitrust actions, they can expect to exceed these figures.
Pre-trial applications and hearings
Complaints commencing private litigation and other filings in federal district courts are available to third parties as part of the public record through Public Access to Court Electronic Records (PACER) (www.pacer.gov). A federal district court may afford confidential treatment to a filing, either in whole or in part, thereby restricting access by third parties (FRCP 5.2(d)). A filing will be afforded confidential treatment where the party seeking the sealing of the judicial record shows that "the material is the kind of information that courts will protect and that disclosure will work a clearly defined and serious injury" (In re Cendant Corp, 260 F.3d 183, 194 (3d Cir 2001) (citation omitted)). The court must balance the interest in secrecy against the presumption of public access (In re Cendant Corp, 260 F.3d 183, 194 (3d Cir 2001) (citation omitted)).
The court may subsequently unseal the filing, or it may require a redacted version of the filing to be made for the public record (FRCP 5.2(d)).
A court may also issue a protective order, for good cause, which may allow for certain information to be redacted from a filing, or which may restrict access to the filing by third parties (FRCP 5.2(e)). Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure (Publicker Indus, Inc v Cohen, 733 F.2d 1059, 1071 (3d Cir 1984)). Courts have recognised litigants' needs to protect confidential commercial information in the private antitrust context (Suture Exp, Inc v Cardinal Health, 200, LLC, No 12-2760-RDR, 2013 WL 6909158 (D Kan Dec 31, 2013)).
A private claimant may seek a preliminary injunction under section 16 of the Clayton Act (15 USC § 26; FRCP 65). A court may issue a preliminary injunction if the claimant establishes that "the danger of irreparable loss or damage is immediate", and that it is likely that the claimant will succeed on the merits of its claim (15 USC § 26; FRCP 65).
Preliminary injunctions may be issued in cases involving proposed mergers or in cases where allegedly unlawful conduct, if allowed, would result in irreparable harm to competition (Boardman v Pac Seafood Grp, 2016-1 Trade Reg Rep (CCH) P79,614 (9th Cir 2016)).
A defendant can seek to dispose of all or part of the action prior to a full trial. A motion to dismiss is the first opportunity for a defendant to seek disposal of all or part of a case. In particular, a defendant may move to dismiss for "failure to state a claim upon which relief can be granted" (FRCP 12(b)(6)). When faced with a motion to dismiss, courts inquire whether the complaint contains sufficient factual allegations, which, if accepted as true, "state a claim for relief that is plausible on its face" (Bell Atlantic Corp v Twombly, 550 US 544, 570 (2007)). The Supreme Court provided additional guidance on the requisite pleading standards two years after its Twombly decision, "[w]here a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief''" (Ashcroft v Iqbal, 129 S Ct 1937, 1949 (2009) (quoting Twombly, 550 US at 557)).
If a complaint survives a motion to dismiss, the defendant has another opportunity to try to dispose of all or part of a case by moving for summary judgment (FRCP 56). Although defendants may file a summary judgment motion at any time, antitrust defendants typically wait until the close of fact discovery before filing the motion. To prevail, an antitrust defendant must establish that there is no genuine issue of material fact on at least one essential element of the claimant's claim. In opposing the motion, the claimant, as the non-moving party, must demonstrate specific facts showing that there is a "genuine issue for trial" and, as the non-moving party, that there is no genuine issue for trial (Matsushita Elec Industrial Co v Zenith Radio Corp, 475 US 574, 587 (1985) (quoting FRCP 56(e)) (citations omitted)).
Additional motions may be filed during the course of the trial to preclude some or all of the antitrust case from going to the jury (FRCP 50 (motion for directed verdict)).
Staying a claim
A defendant can seek to stay an action. The most common circumstances in which a private antitrust case will be stayed are when federal regulators are engaged against the same defendant(s) in a:
A defendant can also seek a stay in the district court when one or more issues are subject to an interlocutory appeal to the court of appeals, including appeals of class certification orders under FRCP 23(f).
A party may seek a separate trial on a specific issue "[f]or convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims" (FRCP 42(b)). For example, it is not uncommon for a court to bifurcate for trial the issues of antitrust liability and damages.
Courts also rely on FRCP 42(b) in ordering bifurcation of trials to adjudicate defenses separately, including, for example, the statutes of limitations defence (Gomez v City of Torrance, 438 F. App'x 626, 628 (9th Cir 2011))
The claimant's entitlement to attorneys' fees and the amount of its fee recovery is another issue that may be subject to bifurcation (Malin Int'l Ship Repair & Drydock, Inc v Veolia Es Special Servs, Inc, 369 F. App'x 553, 555 (5th Cir 2010)).
Evidence and legal privilege
The determination of whether a prior administrative agency's decision is admissible as evidence in a private litigation is typically left to the discretion of the court (BoDeans Cone Co v Norse Dairy Sys, LLC, 678 F. Supp. 2d 883, 897 (ND Iowa 2009)). Courts will consider the probative value of such findings or decisions (FRE 401 & 402). If the court finds that the evidence is probative, it will analyse whether unfair prejudice would result from allowing the evidence to be admitted (FRE 403).
For an agency determination to have preclusive effect, it needs to satisfy the requirements of collateral estoppel (that is, the issue was identical, the precluded party had full and fair opportunity to litigate, the factual finding was essential to the decision, and there was a valid and final judgment), and the administrative agency must be operating in a judicial capacity. "When an administrative agency is acting in a judicial capacity and resolved disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose" (citations omitted) (United States v Utah Const & Min Co, 384 US 394, 422 (1966)).
In civil lawsuits stemming from a criminal investigation, civil claimants may rely on Department of Justice investigations and convictions to support their allegations (Hinds Cty, Miss v Wachovia Bank NA, 700 F. Supp. 2d 378, 394-95 (SDNY 2010)). If there are guilty pleas in the criminal matter, those pleas may be admissible in any subsequent civil proceeding (for example, against the corporation) as a declaration against interest.
Section 5(a) of the Clayton Act further provides that a final judgment or decree rendered in any civil or criminal proceeding brought by the United States must be "prima facie evidence" that the defendant in the private litigation has violated the antitrust laws (15 USC 16(a)). However, this provision of the Clayton Act does not apply if the consent decree is entered before any testimony has been taken.
According to the doctrine of international comity, a judgment or findings by a foreign tribunal may be given preclusive effect in US proceedings if the judgment or findings are entered with impartiality and due process (United States v Kashamu, 656 F.3d 679, 683 (7th Cir 2011)). The comity doctrine cannot be reduced to a precise formula. However, the courts are in general agreement that differences between legal systems will not alone be sufficient to deny application of the doctrine.
US courts have had occasion to consider findings from foreign jurisdictions in antitrust cases. For example, the US District Court for the District of Columbia considered findings by the European Commission (EC) in antitrust litigation involving bulk vitamins (In re Vitamins Antitrust Litig, 320 F. Supp. 2d 1 (DDC 2004)). The EC found that one of the defendants, Roche, the largest vitamin producer in the world, was heavily involved in collusive arrangements. The court relied on this information when ruling on other defendants' summary judgment motions, denying most and granting one (Id. at 19-23).
Generally, discovery is broad in private antitrust actions and other civil litigation. Federal Rule of Civil Procedure Rule 26 provides that parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defence, including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. The court can order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery is proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
The primary types of discovery are deposition testimony, written responses to interrogatories or requests for admission, and the production of documents. Depositions can be taken of fact and expert witnesses (FRCP 26, 30). If a party seeks testimony on behalf of a corporation or other such organisation, the organisation can designate a person to provide testimony about information known or reasonably available to the organisation (FRCP 30(b)(6)).
A party can also seek written discovery from an opposing party in the form of responses to questions (FRCP 33), or requests for admission (FRCP 36). Another common discovery tool is a request for production of documents (FRCP 34). A party can seek discovery from a non-party by issuing a subpoena for testimony or the production of documents (FRCP 45).
Courts typically establish a discrete period for the parties to engage in fact discovery.
A party can oppose the provision of any documents not in their possession or control, as the party's obligation to produce documents is limited to those in its possession, custody or control. However, factual disputes often arise over whether documents are within a party's control. Documents are within the "possession, custody or control" of a party if the party has actual possession or "has the legal right to obtain the documents on demand" (In re Bankers Trust Co, 61 F.3d 465, 469 (6th Cir 1995)). For the purposes of discovery, "control is defined as the legal right, authority, or ability to obtain upon demand documents in the possession of another" (Prokosch v Catalina Lighting, Inc, 193 FRD 633, 636 (D Minn 2000)).
A party can rely on the attorney-client, attorney work product, or joint defence privilege in withholding documents or testimony from inspection or production.
Communications between an attorney and their client are protected when they reflect a request for or provision of legal advice.
The attorney work product doctrine protects from disclosure documents and tangible things, as well as intangible work product such as an attorney's mental impressions, created in anticipation of litigation (FRCP 26(b)(3)).
The common interest privilege, also known as the "joint defence" or "joint prosecution" privilege, protects communications between or among two or more clients represented by separate lawyers that agree to exchange information concerning a matter of common interest (Restatement (Third) of the Law Governing Lawyers, § 76). This is an exception to the general rule that the attorney-client privilege does not apply to confidential communications that are communicated to or in the presence of third parties.
A party seeking to withhold requested information must assert the privilege and, for documents, is generally required to provide a log setting out the basis for the asserted privilege. A party seeking the production of documents or testimony can challenge another party's assertion of a privilege. For example, if the requesting party can show substantial need, it may succeed in getting access to certain work product material.
Alternative dispute resolution
As an alternative to litigating in court, private parties can resolve their antitrust disputes through arbitration or mediation. Without an applicable agreement between the parties to arbitrate or mediate, however, there is no requirement to attempt ADR before commencing an antitrust action.
Arbitration is an adjudicative process, in which a single arbitrator or panel of arbitrators decides the dispute after receiving evidence and argument from the parties. Parties can agree to arbitration either before or after a dispute arises, and the Supreme Court has held that federal antitrust claims are subject to arbitration (Mitsubishi Motors Corp v Soler Chrysler-Plymouth, Inc, 473 US 614 (1985)). Among the potential advantages of arbitration are quicker decisions and less litigation expense. However, parties in arbitration may have less access to discovery than is available in federal court, and the grounds of appealing an arbitration decision are generally more limited.
Mediation, in contrast, is a non-binding form of alternative dispute resolution. Judges will sometimes order parties to submit to mediation, when an action is pending, or the parties may agree to mediate their dispute. The mediator acts as an intermediary between the parties to facilitate an amicable resolution, after receiving some background information on the dispute. Often, mediators will offer their views about the merits of the dispute, but they will not decide whether the claims or defences have merit. A successful mediation is one that results in a settlement agreement between the parties. However, given the non-binding nature of the process, there is no guarantee that mediation will resolve the dispute between the parties.
Settlement or discontinuance of an action
As in other forms of commercial litigation, parties in antitrust cases generally pursue settlement for two reasons. First, a settlement eliminates the uncertainty of the final judgment. For a defendant, the threat of paying treble damages, plus attorneys' fees, if the claimant prevails is often a significant incentive to at least consider settlement. Second, a settlement terminates the costs of litigation, in terms of both out-of-pocket fees and possible business disruption. A party may also be motivated by the prospect of a bad legal precedent if the case does not settle.
There are also potential disadvantages to settlements, apart from the compromise inherent in this type of claim resolution. A defendant must consider the possibility that a settlement will incentivise other parties to file similar lawsuits. This disadvantage can be partially mitigated by making the settlement confidential.
The US Supreme Court recently resolved the question of whether making an offer of settlement to named claimants for the full value of their claim would have the benefit to defendants of mooting the class action. The Court held that a class action is not rendered moot by an unaccepted offer to pay the full value of the named claimants' claims (Campbell-Ewald v Gomez, 136 S Ct 663, 672 (2016)).
In non-class action settlements, the private parties are not required to obtain the permission of the court to settle their antitrust dispute. They can submit to the court a stipulation of dismissal signed by all of the parties and need not disclose the terms of the settlement (FRCP 41(a)(1)(A)(ii)).
Some parties will want the district court to retain jurisdiction to enforce the settlement, in case a dispute later arises over compliance with its terms. However, a district court does not necessarily have jurisdiction over such a settlement dispute, even if it had jurisdiction over the underlying claim (Kokkonen v Guardian Life Ins Co of Am, 511 US 3756 (1994)). If the parties wish the district court to retain jurisdiction, they must take steps to have the court issue an order mandating compliance with the settlement agreement.
Settlements of antitrust class actions, in contrast, do require the approval of the court (FRCP 23(e)). First, the judge must decide that the proposed settlement class meets the standards of Rule 23(a) and (b). Second, the judge must determine that the consideration for the class settlement is fair, reasonable, and adequate. Courts have occasionally denied motions to approval class settlements, on the basis that the payment by the defendants to the settlement class was determined to be insufficient.
Proceedings at trial
When the complainant seeks damages, the parties to a federal antitrust action are entitled to a jury trial under the Seventh Amendment to the US Constitution. However, the parties can waive their jury trial right, either by contract or by not making a timely demand for a jury in the pleadings. Contractual waivers of jury trial rights have been upheld by the courts in federal antitrust cases (Merrill Lynch & Co Inc v Allegheny Energy, Inc, 500 F.3d 171, 188 (2d Cir 2007)).
When the claimant in an antitrust case seeks only equitable relief, not damages, there is no right to a jury trial. The court will decide the equitable claims.
Some courts have also recognised a "complexity" exception to the jury trial right, on the theory that a particular antitrust case may be too complex for a jury to decide (In re Japanese Electronic Products Antitrust Litigation, 631 F.2d 1069, 1075-77 (3d Cir 1980)). The denial of a jury trial in those instances is mandated by the Fifth Amendment right of the litigant to have a competent fact finder.
Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure allows for the entry of a protective order to block or at least limit the disclosure of "a trade secret or other confidential research, development, or commercial information" belonging to a party or a third party in litigation. However, not all protective orders proposed by the parties will be accepted by the court. In determining whether there is good cause to grant the request for a protective order, the court will balance the interests of the public in having access to judicial proceedings with the reasonableness of the party's request to maintain the confidentiality of its business information (Pansy v Borough of Stroudsburg, 23 F.3d 772 (3d Cir 1994)).
Generally, documents are admissible at trial if they are:
Not inadmissible hearsay.
The prohibition on the introduction of hearsay is a generally applicable rule of evidence that applies in private antitrust litigation, as well. It covers out-of-court statements offered to prove the truth of the matter asserted, but is subject to a number of exceptions.
One of the hearsay exceptions that is commonly invoked in antitrust cases is the "business record" exception. In particular, Rule 803(6) of the Federal Rules of Evidence provides that records kept in the course of a regularly conducted business, if they meet certain specified requirements, are exempt from the hearsay rule.
The admissibility of expert witness testimony is governed by Federal Rule of Evidence 702. There are three basic requirements for the admission of such opinion testimony (Daubert v Merrell Dow Pharm, Inc, 509 US 579 (1993)):
The expert witness must be qualified.
The data and methodology relied upon by the expert must be reliable.
The expert opinion must fit the facts of the case.
In almost all federal antitrust cases, each side will proffer opinion testimony from at least one expert witness, on such issues as market definition, market power, and damages. In many cases, the admissibility of such expert testimony will be challenged before trial, and the court will conduct a pre-trial Daubert hearing to determine whether the standards of Rule 702 have been met. Recent cases have held that the Daubert standard of admissibility also applies to expert testimony offered in support of class certification (In re Blood Reagents Antitrust Litig, 783 F.3d 183 (3d Cir 2015)).
The passing-on defence is not available under federal antitrust law (Hanover Shoe, Inc v United Shoe Machinery Corp, 392 US 481 (1968)). In Hanover Shoe, the Supreme Court held that defendants cannot avoid antitrust liability by claiming that direct purchaser claimants suffered no injury as the result of having "passed on" the supra-competitive prices, or overcharges, to indirect purchasers. Instead, the Supreme Court determined that a direct purchaser is entitled, except in limited circumstances, to antitrust damages in the full amount of the overcharge, even if the direct purchaser passed on the overcharge to others farther down in the distribution chain.
In addition to denying the essential elements of a claimant's antitrust claims (see Question 9) or its standing to bring such claims (seeQuestion 2), defendants can also assert one or more affirmative defences.
A defendant can assert that the claimant's antitrust claims are barred by the applicable four year statute of limitations (15 USC § 15b) (see Question 6).
Certain exceptions and immunities can also provide the basis of an antitrust defence. For example, conduct constituting the business of insurance may, under certain circumstances, be immune from liability under the US antitrust laws (McCarran-Ferguson Act, 15 USC §§ 1011-1015). In determining whether insurance is immune from liability under antitrust laws, courts consider (Union Labor Life Ins Co v Pireno, 458 US 119, 129 (1982)):
Whether the practice has the effect of transferring or spreading a policyholder's risk.
Whether the practice is an integral part of the policy relationship between the insurer and the insured.
Whether the practice is limited to entities within the insurance industry.
For example, the US Court of Appeals for the First Circuit held that car insurance companies' agreement not to provide compulsory automobile insurance as private insurers and not to use brokers to sell their policies qualified as "business of insurance" under the McCarran-Ferguson Act (Arroyo-Melecio v Puerto Rican Am Ins Co, 398 F.3d 56 (1st Cir 2005)).
The "state action" immunity defence provides that, where anticompetitive conduct is authorised and actively supervised by state officials, it is immune from antitrust liability (NC State Bd of Dental Examiners v FTC, 574 US ___, 135 S Ct 1101 (2015); California Retail Liquor Dealers Assn v Midcal Aluminum, Inc, 445 US 97 (1980); Parker v Brown, 317 US 341 (1943)).
The First Amendment to the US Constitution also limits the application of the state and federal antitrust laws. In particular, the Noerr-Pennington doctrine protects non-sham petitioning activities before governmental authorities from antitrust liability, even when the goal of the petitioning is a reduction in competition (FTC v Ticor Title Ins Co, 504 US 621, 627 (1992) (citing Mine Workers v Pennington, 381 US 657, 670 (1965); Eastern Railroad Presidents Conference v Noerr Motor Freight, Inc, 365 US 127, 136 (1961)).
Persons who suffer antitrust injury to their business or property are entitled to recover three times their damages, plus costs and reasonable attorneys' fees (section 4, Clayton Act, 15 USC § 15(a)). However, punitive damages are not allowed under federal antitrust law, on the basis that the provision of treble damages is itself an enhancement of damages (Brown v Presbyterian Healthcare Servs, 101 F3d 1324, 1332 (10th Cir 1996)). Many state antitrust laws also allow for the recovery of treble damages.
The Clayton Act provision for the recovery of treble damages is subject to a number of statutory and case law limitations. First, the claim must be brought by a "person", defined by section 1 of the Clayton Act (15 USC § 12) to include corporations and associations, and the claim must be for injury to "business or property", although that language is generally construed broadly by the courts.
Damages are also only recoverable under the Clayton Act if the injury is causally linked to a violation of the "antitrust laws", also defined by section 1 of the Clayton Act, and the damages constitute "antitrust injury" (see Question 2).
Section 4(a) provides that a district court "may" award simple pre-judgment interest on the amount of the actual damages for the period between the service of the complaint setting forth the person's antitrust claim and the date of the final judgment, if the court finds that such interest is "just in the circumstances" (15 USC § 15(a)). In evaluating the appropriateness of an award of pre-judgment interest, the court considers whether:
The claims or defences were so lacking in merit as to show intentional delay or bad faith by the party asserting them.
Rules or orders providing sanctions for dilatory behaviour were violated.
A party engaged in litigation conduct primarily for the purpose of delay or increasing costs.
Post-judgment interest, as is the case with money judgments in all civil actions, is awarded in antitrust cases (28 USC § 1961).
The measure of damages in antitrust cases depends on the nature of the alleged violation and the position of the claimant in the distribution chain. When a supplier's price fixing, monopolisation, or exclusionary conduct causes prices to increase, a direct purchaser may recover damages either in the form of an "overcharge" paid for the good purchased or the "lost profits" resulting from the loss of the opportunity to buy and resell a greater volume of goods sold. The "overcharge", which is the difference between the amount the purchaser actually paid for a good and the amount they would have paid "but for" the alleged conspiracy, is generally considered by the courts to be the standard method for measuring a purchaser's damages.
The "lost profit" measure of damages is more likely to be used in antitrust claims brought by competitors who have suffered antitrust injury. For example, if the alleged antitrust violation reduced the market shares of firms competing with the defendant, a competitor's antitrust damages may be measured by quantifying the amount of its lost sales and applying that to a reasonable profit margin for each sale.
Importantly, in federal antitrust cases brought by direct purchasers, recoverable damages are not reduced by the amount that they can "pass on" the overcharge to their downstream customers in the form of higher resale prices (Hanover Shoe, Inc v United Shoe Machinery Corp, 392 US 481 (1968)). At the same time, with few exceptions, these downstream customers, that is, the indirect purchasers of the defendant's goods, have no standing to recover damages under federal antitrust law (Illinois Brick Co v Illinois, 431 US 720 (1977)) (see Questions 2 and 35).
In nearly all antitrust cases, the claimants will retain an expert to quantify damages using established economic techniques. For example, under the "before and after" method, the claimant uses market data from the period before or after the alleged antitrust violation to estimate "but for" prices. While the economist's data and methodology must be reliable, the courts generally do not require the quantum of damages to be measured with absolute precision.
Section 16 of the Clayton Act provides for injunctive relief to stop anticompetitive conduct or to eliminate its effects (15 USC § 26) (see Question 20). In comparison to section 4 claims for antitrust damages, section 16 is not as stringent a standard and only requires the claimant to show a significant threat of antitrust injury (In re New Motor Vehicles Can Exp Antitrust Litig, 522 F.3d 6 (1st Cir 2008)). Therefore, it is possible to obtain injunctive relief under section 16 even in circumstances when antitrust damages may not be available.
It is possible to appeal the judgment of the relevant court or tribunal. Final orders are appealable as of right for at least one level of review. From a federal district court, the appeal is taken to one of the circuit court of appeals. A party can then seek permission to appeal to the US Supreme Court, but that review is discretionary.
Appeals of non-final orders, in keeping with the judicial system's policy against "piecemeal" appeals, are exceptional. Nevertheless, prior to the entry of a final order or judgment, a party may seek permission to appeal certain interlocutory (or non-final) orders to the court of appeals. For example, Federal Rule of Civil Procedure Rule 23(f) allows for petitions to appeal class certification orders to be filed with the court of appeals. Other interlocutory orders require the petitioner to seek and obtain permission from both the federal district court and the court of appeals, before taking its appeal.
There are a number of reforms of the antitrust laws currently under consideration.
Congress is considering a statutory reform to align the merger review processes undertaken by the Department of Justice and the Federal Trade Commission, entitled the Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act. Both agencies have authority to review mergers but have different tools and mechanisms available, the SMARTER Act purports to develop more uniformity.
Congress has also considered adopting a statute that would protect "whistleblowers" from retaliation for disclosing potential antitrust violations. The proposed statute would provide whistleblowers with a private cause of action.
The Federal Trade Commission (FTC) recently released guidance on the state action doctrine in the wake of North Carolina State Board of Dental Examiners v FTC. In addition, the FTC, together with the Department of Justice, recently released proposed revisions to their collective guidelines for the licensing of intellectual property.
Federal Trade Commission (Antitrust Laws)
Description. Views of Federal Trade Commission, a government regulator, on federal antitrust laws.
Federal Trade Commission (Competition Guidance)
Description. Collection of views of Federal Trade Commission on various issues within the Commission's purview. The Commission and the Department of Justice Antitrust Division share jurisdiction over some issues and, therefore, on occasion issue joint statements.
Department of Justice
Description. Department of Justice – Antitrust Division background on federal antitrust laws. Collection of views of Department of Justice – Antitrust Division on various issues within the Division's purview. The Division and the Commission share jurisdiction over some issues and, therefore, on occasion issue joint statements.
Paul H Saint-Antoine, Partner; Co-Chair, Antitrust Group
Drinker Biddle & Reath LLP
Professional qualifications. Admitted to practise law in Pennsylvania and New Jersey
Areas of practice. Antitrust; class actions; commercial litigation.
Non-professional qualifications. JD, Columbia Law School; BA in economics and history, summa cum laude, Kenyon College
Professional associations/memberships. Former co-chair of the Intellectual Property Committee of the American Bar Association's Antitrust Section; current vice-chair of the Section's Civil Practice and Procedure Committee; Fellow of the American Bar Foundation and of the Litigation Counsel of America; and member of the Board of the Public Interest Law Center.
Joanne C Lewers, Partner
Drinker Biddle & Reath LLP
Professional qualifications. Admitted to practise law in Pennsylvania and District of Columbia and in the US District Court, District of Columbia and US District Court, Eastern District of Pennsylvania
Areas of practice. Antitrust; commercial litigation.
Non-professional qualifications. JD, University of Denver College of Law; BA, Fairfield University
Professional associations/memberships. Co-Chair of the Joint Conduct Committee of the Antitrust Section of the American Bar Association.
Todd N Hutchison, Associate
Drinker Biddle & Reath LLP
Professional qualifications. Admitted to practise law in Pennsylvania and New Jersey
Areas of practice. Antitrust; appellate; commercial litigation.
Non-professional qualifications. JD, magna cum laude, Temple University Beasley School of Law; MBA, Temple University Fox School of Business and Management; BA, University of Pennsylvania
Professional associations/memberships. Young Lawyer Representative for the Exemptions and Immunities Committee of Antitrust Section of the American Bar Association.
Kathryn P Bullard, Associate
Drinker Biddle & Reath LLP
Professional qualifications. Admitted to practise law in Pennsylvania and New Jersey
Areas of practice. Antitrust; commercial litigation; white collar and investigations.
Non-professional qualifications. JD, cum laude, University of Michigan Law School; BA, magna cum laude, University of Pennsylvania
Lucas B Michelen, Associate
Drinker Biddle & Reath LLP
Professional qualifications. Admitted to practise law in Pennsylvania and New Jersey
Areas of practice. Antitrust; commercial litigation.
Non-professional qualifications. JD, cum laude, Temple University Beasley School of Law; BS, cum laude, Temple University