Appendix C. Final Recommendations of Antitrust Modernization Commission

• Pages: 473-474

473

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.2The AMC recognized that the issues were “difficult and

contentious,”3and 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.”5The AMC made the following

recommendations:

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

elements:

Overrule Illinois Br ickand 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 plaintiffs—both

direct and indirect—in full satisfaction of their claims in

1. ANTITRUST MODERNIZATION COMM’N,REPORT &

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.