Private enforcement under US antitrust law: origins and contemporary context

Abstract

Chapter 3 provides an overview of the origins and status of the private right of action in the United States. The defining features of that right have been established since 1890 when its first iteration was included in the Sherman Act. They include recovery of treble damages and, for a prevailing plaintiff, both attorney’s fees and the costs of suit. Along with several other statutory provisions, these core characteristics were intended to incentivize private antitrust challenges so they could supplement public enforcement and provide for the compensation of victims of antitrust violations. Today’s private right of action operates, however, within the broader context of a system of civil litigation that must be understood if the private action is to be fairly assessed. That system includes extensive motion practice, discovery, class actions, and jury trials. The Supreme Court’s interpretations of the private right of action have been influenced by these features and how they interact with the private right’s provision of treble damages, although not always consistently. That influence can be observed in both constraints on the private right, itself, as well as restrictive interpretations of the liability rules that have affected private and public enforcement, alike. As this chapter concludes, the result is an overall antitrust system in the U.S. that must be understood in its entirety as an interdependent web of substantive and procedural rules that may be unique in the world.