Appendix C. Final Recommendations of Antitrust Modernization Commission

• Pages: 371-372

371

APPENDIX C

FINAL RECOMMENDATIONS OF ANTITRUST

MODERNIZATION COMMISSION

On April 2, 2007, the Antitrust Modernization Commission (AMC)

issued its final report and recommendations.1565 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.1566 The

AMC recognized that the issues were “difficult and contentious,”1567 and

even within the AMC, there was “disagreement about which policy

would be best a priori.”1568 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.”1569

The AMC made the following recommendation:

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

did not suffer injury. To facilitate this, Congress should enact a

comprehensive statute with the following elements:

• Overrule Illinois Brick and Hanover Shoe to the extent

necessary to allow both direct and indirect purchasers to sue to

recover for actual damages from violations of federal antitrust

law. Damages in such actions could not exceed the

overcharges (trebled) incurred by direct purchasers. Damages

should be apportioned among all purchaser plaintiffs—both

1565. The full report, ANTITRUST MODERNIZATION COMMISSION, REPORT &

RECOMMENDATIONS (April 2007) is available at http://www.amc.gov/

report_recommendation/toc.htm, with hyperlinks to specific chapters of

the report.

1566. Id. at 265-66. Chapter III.B of the report is available at http://www.amc.

gov/report_recommendation/chapter3.pdf.

1567. Id. at 266.

1568. Id. at 267. Three commissioners would recommend federal preemption

of indirect purchaser claims; three commissioners would favor federal

preemption if they were writing on a clean slate, without thirty years of

history; and five commissioners would allow suits by both direct and

indirect purchasers. Id. at 267 n*.

1569. Id. at 267.