Editors' Note

• Author: Richard M. Brunell and Andrew I. Gavil
• Position: Respectively, Member of the Massachusetts Bar; and Professor of Law, Howard University School of Law
• Pages: 309-314

SYMPOSIUM

PERSPECTIVES ON INDIRECT PURCHASER

LITIGATION: TIME FOR REFORM?

EDITORS’ NOTE

R

ICHARD

M. B

RUNELL

A

NDREW

I. G

AVIL

*

This Symposium grew out of interest in exploring the implications of the

Supreme Court’s 2019 decision in Apple Inc. v. Pepper,

1

and the intriguing

questions posed by the Court during oral argument. Although neither party

asked the Court to reconsider Illinois Brick’s ban on the recovery of damages

by indirect purchasers,

2

a seemingly bipartisan coalition of 31 states led by

Texas submitted an amicus brief on the merits inviting the Court to do just

that.

3

The states urged the Court to adopt the dissenters’ position in Illinois

Brick, namely that indirect purchasers should be able to sue, but that Hanover

Shoe’s rejection of a “pass-on defense” for antitrust defendants

4

should be

retained. Any possible risk of multiple damages if a right to sue was restored

to indirect purchasers could be largely avoided through procedural mecha-

nisms.

5

Amicus briefs submitted by a group of antitrust scholars and the

* Respectively, Member of the Massachusetts Bar; and Professor of Law, Howard University

School of Law. They are the Symposium Co-Editors.

1

139 S. Ct. 1514 (2019).

2

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). The Solicitor General, arguing that the

plaintiffs’ suit should been barred under Illinois Brick, seemed to call into question the wisdom

of the current regime, but noted that “[t]he parties have not asked the Court to revisit Illinois

Brick or Hanover Shoe, [so] the only question presented is how to apply those precedents here.”

Brief for the United States as Amicus Curiae Supporting Petitioner at 18–19, Apple Inc. v. Pep-

per, 139 S. Ct. 1514 (2019) (No. 17-204).

3

Brief for Texas, Iowa, and 29 Other States as Amici Curiae in Support of Respondents at

24–35, Apple Inc. v. Pepper, 139 S. Ct. 1514 (2019) (No. 17-204) [hereinafter States’ Amicus

Brief].

4

Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481 (1968).

5

States’ Amicus Brief, supra note 3, at 17–21. This was also, as the states pointed out, the

original position of the United States in Illinois Brick.

309