Antitrust Injury and Standing

It is not sufficient for a private antitrust plaintiff seeking to recover
damages under Section 4 of the Clayton Act to prove that the injury
suffered is causally linked to the alleged violation. A plaintiff must also
show that the alleged injury constitutes an “antitrust injury” and that the
plaintiff is not so far removed, or remote, from the antitrust violation as to
lack “antitrust standing” to bring suit.1
Antitrust standing requires an examination of the “physical and
economic nexus” between the individual harm and the alleged antitrust
violation, i.e., whether the person alleging harm was so far removed from
the injury that standing should not be recognized.2 The related doctrine of
antitrust injury limits the types of economic harm that are compensable
and requires plaintiffs to demonstrate a link between the individual harm
and the type of injury antitrust laws are intended to prevent in preserving
1. The doctrine of “antitr ust standing” is distinct from the constitutional
doctrine of standing. Injury in fact is sufficient to satisfy the constitutio nal
requirement of standing, but the doctrine of antitru st standing requires
courts further to determine whether the plaintiff is a proper party to bring
a private antitrust action). Associated Gen. Contractors v. Cal. State
Council of Carpenters (AGC), 459 U.S. 519, 535 n.31 (1983).
2. See Blue Shield of Virginia v. McCready, 457 U.S. 465, 476-77 (1982).
3. See B runswick Corp. v. Pueb lo Bowl-O-Mat, 429 U.S. 477, 489 (1977)
(stating that “[t]he antitrust laws . . . were enacted ‘for the protection of
competition, not competitors.’”) ( quoting Brown Shoe Co. v. United States,
370 U.S. 294, 320 (1962)); see also Ronald W. Davis, Standing on Shaky
Ground: The Strangely Elusive Doctrine of Antitrust Injury, 70 ANTITRUST
L.J. 697, 698 (2003) (noting that the doctrine of antitrust injury requires
that a plaintiff’s damages theory “correspond to an economic effect that the
statute or case law rule invoked as the basis for liability ai ms to prevent”);
John E. Lopatka & Will iam H. Page, Brunswick at 25: Antitrust Injury and
the Evolution of Antitrust Law, 17 ANTITRUST 20 (2002) (“In Brunswick
the Court held that, to recover damages pursuant to Section 4 of the Clayton
Act, a plaintiff mus t prove ‘antitrust inj ury, which is to say inj ury of the
type the antitrust laws were intended to prevent and that flo ws from that
which makes defendants’ acts unlawful.’”) (quoting Brunswick, 429 U.S.
at 489)); Jonathan M. Jacobson & Tracy Greer, Twenty-One Years of
Antitrust Injury: Down the Alley with Brunswick v. P ueblo Bowl-O-Mat,
66 ANTITRUST L.J. 273 (1998) (defining antitrust injury standard as
20 Proving Antitrust Damages
There is no black letter rule on antitrust standing. Instead, the Supreme
Court established a comprehensive standing doctrine to determine which
private parties are entitled to sue for damages or injunctive relief in
Associated General Contractors v. California State Council of Carpenters
(AGC).4 In AGC, the Court identified certain factors that lower courts must
balance to determine whether a plaintiff has antitrust standing: (1) the
causal connection between the antitrust violation and the harm to the
plaintiff, and whether the plaintiff’s harm was intended; (2) the nature of
the injury, including whether the plaintiff is a consumer or competitor in
the relevant market; (3) the directness of the injury, including whether
determining damages would be too speculative; (4) the danger of
duplicative recovery, and whether it would be too complex to apportion
the damages; and (5) the existence of a class of better-situated plaintiffs,
or more direct victims.5
The first two of these standing elements are effectively incorporated
into the doctrine of “antitrust injury.” The other factors focus on whether
a category of plaintiffs is too remote to the effects of the violation or
whether a person with a more direct injury and a stronger incentive to file
suit would be the more appropriate party to pursue a claim. The antitrust
standing analysis encompasses all factors. As the Supreme Court observed
in Cargill, Inc. v. Monfort of Colorado, Inc.,6 “[a] showing of antitrust
injury is necessary, but not always sufficient, to establish standing under
§ 4, because a party may have suffered antitrust injury but may not be a
proper plaintiff under § 4 for other reasons.”7
The lower courts have at times weighed the AGC factors differently
when balancing antitrust injury with other elements in the antitrust
standing analysis. The majority of courts treat antitrust injury as an
“whether the plaintiff’s injury sufficiently ref lected the adverse effect of
the defendant’s cond uct on competition and consumers”).
4. AGC, 459 U.S. at 519. See also Atlantic Richfield Co. v. USA Petrol. Co.
(ARCO), 495 U.S. 328, 334 (1990) (finding that the antitrust injury
requirement is a distinct matter from the established sta tutory per se
violations); American Ad Mgmt. v. Gen. Tel. Co., 190 F.3d 1051, 1054
(9th Cir. 1999) (recognizing the need for case-by-case analysis and that it
is “virtually impossible” to announce a black-letter rule); SAS v. P.R. Tel.
Co., 48 F.3d 39, 44-45 (1st Cir. 1995) (“[d]espite its statutory framework,
antitrust law is largel y the handiwork of fede ral judges and antitrust
5. AGC, 459 U.S. at 540-45.
6. 479 U.S. 104 (1986).
7. Id. at 104, 110 n.5.
Antitrust Injury and Standing 21
essential threshold component of antitrust standing.8 The First and Ninth
Circuits appear to treat no single factor as decisive, though even they
recognize the central importance of antitrust injury.9 In addition, the courts
emphasize policy considerations in assessing antitrust injury, such as the
avoidance of duplicative litigation and inconsistent judgments, as well as
preserving the effectiveness and efficiency of private antitrust
8. See, e.g., In re Canadian Imp. Antitrust Litig., 470 F.3d 785, 791-92 (8th
Cir. 2006) (recognizing a potentially dispositive point in finding that abse nt
an antitrust injury ca used by defendants ’ conduct, plaintiff l acked
standing); Kochert v. Greater Lafayette Health Servs., 463 F.3d 710, 715-
19 (7th Cir. 2006) (requiring a showing of both antitrust inj ury and antitrust
standing to proceed under § 4); Daniel v. Am. Bd. of Emergency Med., 428
F.3d 408, 438 (2d Cir. 2005) (“the weight to be given the var ious factors
will necessarily vary with the circumstances of particular cases”); Florida
Seed Co. v. Monsanto Co., 105 F.3d 1372 (11th Cir. 1997) (following a
two-prong app roach to deciding anti trust standing, incl uding whether
plaintiff both sufficiently established “antitru st injury” and was an
“efficient enforcer” of the antitrust laws); Balaklaw v. Lovell, 14 F.3d 793,
798 n.9 (2d Cir. 1994) (applying a two-prong analysis focusing first on
whether a plaintiff s uffered an antitrust injury and then turni ng to the other
9. See, e.g., RSA Media v. AK Media Group, 260 F.3d 10, 14 (1st Cir. 2001)
(“Although we technically balance the six factors to determine if standing
is appropriate . . . this Court has emphasized the causation requirements of
that test.”); Serpa Corp. v. McWane, Inc., 199 F.3d 6, 10 (1st Cir. 1999)
(noting that courts must consider the “balance of factors in each case” to
guard against “engraft[ing] artificial limitations on the § 4 remedy,” but
disposing of the case on “the antitrust injury factor since distributors . . .
presumptively lac k antitrust standing.”); American Ad Mgmt., 190 F.3d at
1055 (noting that a conclusi on on antitrust sta nding does not req uire the
court finding in favor on each factor but instead requires a balancing of the
factors, although “great[er] weight to the nature of the plaintiff’s alleged
injury” may be given) ; Lucas Auto. Eng’g v. B ridgestone/Firest one, Inc.,
140 F.3d 1228, 1232 (9th Cir. 1998) (balancing the AGC factors of antitrust
injury, directness, speculative measure of harm, risk of duplicative
recovery and complexity in apportioning damages, althoug h giving great
weight to the nature of plaintiff’s alleged injury); Amarel v. Conne ll, 102
F.3d 1494, 1508 (9th Cir. 1996) (noting that “antitrust standing involves a
case-by-case analysis” in which “no single factor is decisive”); Sullivan v.
Tagliabue, 25 F.3d 43, 47 n.9 (1st Cir. 1994) (“We agree that the absence
of antitrust injur y weighs heavily against a grant of st anding. We need not
consider, however, whether this should b e fatal to standing i n every
instance, because in the circumstances of this case, we conclude that the
balance of factors as a whole weighs against a grant of standing.”).

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