Controlling the Competitor Plaintiff in Antitrust Litigation

Abstract

In Misuse of the Antitrust Laws: The Competitor Plaintiff Edward Snyder and Thomas Kauper survey a sample of private antitrust cases from the period 1973-1983 and review critically the recent economic literature on raising rivals' costs as an exclusionary practice. Measuring the sample against the theory, they find relatively few meritorious suits brought by competitors of the alleged offenders.2 They also find that the antitrust injury doctrine announced in 1977 in Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. 3 had no significant effect on the relative frequency of competitor suits filed during the period covered by the sample.4 This result, they conclude, suggests that Brunswick does not curb misuse of the antitrust laws. Turning to the present interpretation of the law, they find that careful pleading can so easily circumvent the antitrust injury doctrine that the doctrine holds no prospect for stemming the tide of perverse competitors' suits.5 Plaintiffs, they argue, may easily get past the pleading stage to the merits by modifying their complaints to include the necessary allegations of anticompetitive exclusion. Snyder and Kauper therefore recommend that the private competitor's suit be abolished and replaced by a form of parens patriae suit on behalf of the few legitimately aggrieved competitors.6 Much in Snyder and Kauper's study is worthy of comment. They