Appendix C. Final Recommendations of Antitrust Modernization Commission

On April 2, 2007, the Antitrust Modernization Commission
(AMC) issued its final report and recommendations.1 Chapter III.B of
the report briefly discusses the background of indirect purchaser
litigation and some of the inefficiencies and duplication that have
arisen because of the substantive difference between state and federal
law.2 The AMC recognized that the issues were “difficult and
contentious,”3 and even within the AMC, there was “disagreement
about which policy would be best a pr iori.”4 Nevertheless, the AMC
“largely reached consensus on a practical approach to reduce the
complexity and costs generated by the existing conflict between
federal and state policies.”5 The AMC made the following
Direct and indirect purchaser litigation would be more efficient and
more fair if it took place in one federal court for all purposes,
including trial, and did not result in duplicative recoveries, denial
of recoveries to persons who suffered injury, and windfall
recoveries to persons who di d not suffer injury. To facilitate this,
Congress should enact a comprehensive statute with the following
Overrule Illinois Br ick and Ha nover Shoe to the extent
necessary to allow both direc t and indirect purchasers to sue to
recover for actual damages from violations of federal antitrust
law. Da mages i n such a ctions could not exceed the
overcharges (trebled) incurred by direct purchasers. Damages
should be apportioned among all purchaser plaintiffsboth
direct and indirectin full satisfaction of their claims in
RECOMMENDATIONS (2007), availa ble at http://govinfo.library.unt.
edu/amc/report_ recommendation/amc_final_report.pdf.
2. Id. at 265-66.
3. Id. at 266.
4. Id. at 267. Six commissioners would recommend allowing direct
purchaser clai ms only if they were writing on a clean slate without
thirty years of history, with three of those commissioners favoring
federal preemption to implement that rule. Five commissioner s would
allow suits by both direct and indirect purchasers. Id. at 266.
5. Id. at 267.

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