Antitrust Arbitration and Illinois Brick

Abstract

I. INTRODUCTIONThe proper role of private enforcement in antitrust law has long been debated. One of the most significant judicial reforms of antitrust law associated with the Chicago School was the Supreme Court's decision to limit standing to direct purchasers in Illinois Brick Co. v. Illinois.1 Although that decision has proven controversial, the Illinois Brick doctrine has endured as a principle of federal antitrust law for nearly 40 years.Whatever the merits of the Illinois Brick decision in 1977, subsequent developments have undermined its rationale. In particular, the Supreme Court's 2013 decision in American Express Co. v. Italian Colors Restaurant2 undercuts the fundamental premises of the Illinois Brick doctrine. The Illinois Brick majority assumed that direct purchasers were the most motivated and the best situated to enforce antitrust laws that resulted in supracompetitive prices. But Italian Colors makes it very difficult for direct purchasers to enforce antitrust laws in a wide variety of circumstances, because the decision allows potential antitrust defendants to use arbitration clauses in standard-form contracts to ban antitrust class actions and require individual arbitration of antitrust disputes. The result is to deprive overcharged direct purchasers of the tools antitrust law offers for effective enforcement-class action status, a lengthy statute of limitations, treble damages, and, if successful, attorneys' fees.3 Without effective opportunities for enforcement by direct purchasers, the rationale for excluding indirect purchasers from bringing antitrust claims collapses.Antitrust law is common law and is often based on policy arguments. The decision in Illinois Brick is no exception. The Court based its reasoning on its assessment of the ability of direct purchasers to enforce antitrust laws effectively. After Italian Colors, that is no longer the case. Old doctrines must give way in light of legal developments (including later judicial opinions) that change the underlying environments and undermine the original policy arguments upon which the old common law is based. By eliminating most antitrust enforcement by direct purchasers, Italian Colors has paved the way for reconsideration of Illinois Brick.4II. ILLINOIS BRICK: ITS HOLDING AND RATIONALECourts have long been suspicious of competitors as antitrust plaintiffs,5 in part because competitor interests do not necessarily align well with consumer interests. For example, competitors might object to conduct that benefits consumers, such as aggressive price competition.6 Beginning in the 1970s, courts began creating limits on competitor standing in an effort to tackle that disconnect.7Consumers, by contrast, are, in some sense, the perfect antitrust plaintiffs. They are the intended beneficiaries of the competitive markets that antitrust policy seeks to encourage; consumers are injured by cartels and other anticompetitive conduct, but benefit from aggressive competition on the merits. Accordingly, courts have long permitted purchasers to sue to recover overcharges that result from cartels,8 though some courts have (incorrectly) questioned customers' standing to enforce the antitrust laws.9In Illinois Brick, the plaintiffs were state and local governments who sought recovery for overcharges that resulted from a cartel that fixed the prices of concrete blocks. But the governments did not buy the blocks directly from the defendants. Rather, construction contractors bought the blocks and used them to build buildings, which the governments later bought.10 The governments were indirect purchasers; their injury came from the fact that the contractors, who paid an artificially high price, passed that higher price on to them.11The Supreme Court held that indirect purchasers could not recover the overcharges that direct purchasers passed on to them.12 Illinois Brick was decided on two basic policy considerations. …