The Supreme Court has issued several decisions designed ostensibly to rein in those cases.[1] But to put it bluntly, I worry that the Supreme Court is not only modifying procedural rules to cabin the private plaintiff’s bar, but that it is curbing the substantive rules as well. Since 2004, the Supreme Court has decided ten antitrust cases – not one of those cases was brought by the government.[2] This means that the vast majority of substantive antitrust law is being made in cases involving private plaintiffs.[3] Notwithstanding all of that, I think the Court is on to something and that we, as prosecutors, should take our discretion seriously and only bring those cases where we have reason to believe there is real harm occurring and where, if it cannot be brought under Section 5, we recognize all of the effects – including supposed chilling effects and follow-on class actions – that may result from filing a complaint.
- ↑ See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557-60 (2007); Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264, 281-82 (2007).
- ↑ Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc., 129 S.Ct. 1109 (2009); Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312 (2007); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Leegin Creative Leather Prods. v. PSKS, 551 U.S. 877 (2007); Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264 (2007); Volvo Trucks N. Am. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006); Texaco Inc. v. Dagher, 547 U.S. 1 (2006); Ill. Tool Works Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006); Verizon Commc’ns v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004); F. Hoffman-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155 (2004).
- ↑ As Dan Crane has observed, this feature of our common law process has negative spillover effects for public enforcement because “[t]he content of these liability rules is shaped by concerns peculiar to private litigation, such as abusive competitor suits, the risk that treble damage awards will chill vigorous competition, and the fear that setting the bar too low will encourage litigiousness.” Daniel A. Crane, Antitrust Antifederalism, 96 Calif. L. Rev. 1, 41 (2008). Thus, he goes on to observe “at least in recent years, courts have often established sharply underinclusive liability norms in private antitrust cases” even though “[l]ogically, the liability rules might very well be less stringent in public litigation where those limiting concerns are absent.” Id. Hence, Crane concludes, in the predatory pricing context and even in the Section 5 context, “the predominance of private antitrust litigation has stymied public antitrust enforcement by precipitating the creation of restrictive liability norms that are then applied to public lawsuits as well.” Id.
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