BLUE SHIELD OF VIRGINIA V. MCCREADY: THE LIMITS OF THE ANTITRUST INJURY DOCTRINE
| DOI | http://doi.org/10.1111/j.1744-1714.1984.tb00391.x |
| Published date | 01 March 1984 |
| Author | VIRGINIA G. MAURER |
| Date | 01 March 1984 |
COMMENTS
BLUE SHIELD
OF
VIRGINIA
V.
MCCREADY:
THE
LIMITS
OF
THE ANTITRUST INJURY DOCTRINE
*VIRGINIA G. MAURER
The purpose of this comment
is
to evaluate the effect of the recent
United States Supreme Court decision
Blue Shield
of
Virginia
v.
Mc-
Cready'
on the standing of plaintiffs to sue for treble damages under
section
4
of the Clayton Act.' The comment argues that the Supreme
Court has maintained doctrinal confusion regarding the section
4
remedy. Moreover, the Court has limited the trend in the lower federal
courts to expand the antitrust injury doctrine.8 That doctrine has
limited the availability of the section
4
remedy.
The comment
is
divided into four parts. The first part introduces the
legal doctrines associated with the problem of antitrust standing.
It
also provides the factual background
of
the
McCready
case. The
se-
cond part traces in greater detail the development of antitrust stand-
ing doctrine in Supreme Court decisions, and also the development of
the antitrust injury doctrine from
its
origin in
Brunswick
Gorp.
v.
Pueblo Bowl-0-Mat, Inc.'
to recent lower federal decisions. The third
*
Assistant Professor of Business Law, University of Florida.
I
wish to acknowledge
the research support provided by the Public Policy Research Center of the University of
Florida and helpful discussions with my colleague, Roger
D.
Blair.
Blue Shield of Virginia v. McCready,
102
S.Ct.
2540 (1982).
Clayton Act
§
4,15
U.S.C.
9
15
(Supp. V
1981)
provides a treble damage remedy for
antitrust violations:
Any person who shall be injured in his business
or
property by reason of any-
thing forbidden in the antitrust laws may sue therefor in any district court of
the United States in the district in which the defendant resides
or
is found
or
has an agent, without respect to the amount of controversy, and shall recover
three-fold the damages by him sustained, and the cost
of
suit, including a
reasonable attorney's
fee.
a
See
infra
text accompanying notes
75-88.
'
429
U.S.
477 (1977).
68
1
Vol.
22
I
American
Business
Law
Jouml
part considers the reasoning of the majority and minority opinions in
the
McCready
case. The final part evaluates the likely implications
of
the
McCready
decision for access to the section
4
remedy.
The question of who should have access to the courts to redress in-
juries that arise out of
a
violation of the federal antitrust laws is an
abiding problem. Section
4
of the Clayton Act, which provides
a
treble
damage remedy for violations of the antitrust laws of the United
States?
has become an important instrument
for
enforcement of the
antitrust laws? The prospect of treble damage recovery provides an
incentive for private enforcement of the antitrust laws? Moreover, re-
covery under the Act provides compensation for the injured party’ and
serves as a deterrent to future violation of the law? The Supreme
Court however, has concluded that “Congress did not intend the anti-
“Antitrust laws,’’ for Clayton Act purposes, include the Sherman Act, the Wilson
Tariff Act, and the Clayton Act, including RobinsonPatman Act section 2, but not section
3
of that Act.
See
P.
AREEDA, ANTITRUST ANALYSIS 75 n. 82 (3d ed. 1981).
The growth in volume of private federal antitrust suits since the second world war is
attributable to decisional law in the post-war period that has increased the availability of
the action.
See
Berger and Bernstein,
An Analytical Framework for Antitrust Standing,
86 YALE
L.
J.
809 (19771, and authority cited at n.
1
therein: Blair,
Antitrust Penalties:
Deterrence and Compensation,
1980 UTAH
L.
REV. 57,60-62 and authority cited therein.
The private antitrust action is particularly important where there has been a success-
ful government action against
a
potential defendant. Clayton Act
§
5(a),
15
U.S.C. $16(a)
(Supp.
V.
1981) permits the private plaintiff to use judgments from criminal antitrust ac-
tions against the defendant to meet the burden of proving a violation of the antitrust law.
Section 5a provides:
A final judgment
or
decree..
.
rendered in any.
. .
proceeding brought by..
.
the United
States
under the antitrust laws to the effect that a defendant has
violated said laws shall be prima facie evidence against such defendant in any
action
or
proceeding brought by any other party against such defendant under
said laws
as
to all matters respecting which said judgment
. .
.
would be an
es-
toppel as between the parties thereto..
.
.
’
The legislative history of the antitrust laws indicates that the civil damage remedy
was intended to continue the common law treble damages remedy for restraint
of
trade.
See
H.
THORELLI, THE
FEDERAL
ANTITRUST
POLICY
225 (1955) (“The obvious purpose of the
[damages] section was not only to provide redress
for
private wrongs but also to build into
the act one feature of self-enforcement that had been typical in cases of restraint of trade
at common law.”).
Treble damage recoveries achieve more than compensation to the victim for actual
injuries. They are, in effect, a form of punitive damages. Some commentators have criti-
cized the use of treble damage recoveries that over-compensate the plaintiff, either
on
the
ground that they are unfair to the defendant firms’ shareholders
or
on the ground that the
availability of such damages minimizes the vigilance of potential victims.
See
K.
ELZINCA
AND
W. BREIT, THE ANTITRUST
PENALTIES
114 (1976); Blair,
supra
note
6;
Wheeler,
Anti-
trust Treble-Damage Actions: Do
They
Work?,
61 CALIF.
L.
REV. 1319 (1973).
’
See
American Soc’y of Mech. Eng’rs, Inc. v. Hydrolevel Corp, 102 S.Ct. 1935 (1982);
Pfizer. Inc. v. India, 434
US.
308,313-314 (1978); Perma Life Mufflers v. Int’l
Parts
Corp.,
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