Impact: Injury and Causation

Section 4 of the Clayton Act establishes a treble damages remedy for
any person who is “injured in his business or property by reason of
anything forbidden in the antitrust laws.”1 While this statutory language
has spawned a host of judicial elaborations and limitations, this chapter
addresses the minimum requirement for recovery: whether the plaintiff can
prove an injury that was caused by an antitrust violation.
Antitrust violations may inflict harm in a number of ways. Collusive
or monopolistic practices may increase the price that consumers or
businesses pay for what they buy. Suppliers’ refusals to deal may limit or
deny access to inputs that businesses purchase to use in their operations or
for resale. Businesses also may suffer in their output markets because of
violations that limit or foreclose access to customers, such as a
competitor’s exclusive contracts, or violations that force reductions in
their selling prices, such as a competitor’s predatory pricing or collusion
among purchasers. An exhaustive list of how antitrust violations inflict
private harm on consumers and commercial enterprises would be a long
These various types of harm produce tangible financial consequences.
Paying more than they otherwise would for what they buy takes money
out of consumers’ pockets and cash out of firms’ coffers. Disruptions in a
business’s input and output markets may produce lower revenues or higher
expenses, which translate into lower profits and, in some cases, losses, as
well as an inability to continue operations. For a start-up business, the
consequences may include a failure to begin what would otherwise be
profitable operations, or wasted sunk costs. Efforts to counteract or
minimize the effect of a violation may entail substantial disruptions and
out-of-pocket costs.
1. 15 U.S.C. §15. If liability can be e stablished, the Clayton Act provides
mandatory attorneys’ fees and costs as well as damages. A settlement with
one defendant that gi ves plaintiffs more t han the damages the y could
recover at trialand thus moots a claim for compensatory damagesdoes
not impair their right to recover attorneys’ fees and co sts against another
defendant. Funeral Consumers Alliance v. Service Corp. Int’l, 695 F.3d
330, 340-42 (5th Cir. 2012).
4 Proving Antitrust Damages
These potential financial effects of antitrust violations suggest a
comparison: if the violation had not occurred, the plaintiff would be better
off than it actually is. This is the familiar “but-for” proposition, and it is
the central analytical approach to determining the impact of an antitrust
violation.2 The but-for principle requires one to envision exactly how the
world would be different without (“but for”) the challenged conduct. An
antitrust plaintiff is harmed by a violation when the plaintiff would be in a
better financial position but for the violation; conversely, if the plaintiff
would be in the same position without regard to whether the violation
occurred, the violation produced no harm.3
The but-for principle fuses into one inquiry the concepts of injury and
causation, the subjects of this chapter, and the measurement of damages,
the subject of Chapters 4 to 6. If the plaintiff’s actual condition is worse
than what it would have been in the hypothetical but-for world, a violation
can be said to have “caused” an “injury” in but-for terms. Likewise, a
damages award measures the extent of the difference in outcomes between
the actual world and the but-for world to compensate the plaintiff for this
injury. See Chapters 4 to 6 for a more thorough discussion of the
2. See, e.g., Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433-34 (2013)
(damages resulting fr om an antitrust inj ury measured by co mparison to a
“but-for” world that reflects conditions in the actual world in all resp ects
except the alleged anticompetitive conduct); J. Truett Payne Co. v.
Chrysler Motors Corp., 451 U.S. 557, 566 (1981) (damages turn on “what
plaintiff’s situation would have been in the absence of the defendant’s
antitrust violation”); Reiter v. Sonotone Corp., 442 U.S. 330, 340 (1979)
(a price-fixing conspiracy injures a consumer when it causes the consumer
“to pay a higher price . . . than it otherwise would have paid”); Story
Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 561-62
(1931) (the harm of a predatory pricing conspiracy is measured by “the
difference between the prices [plaintiff] actually received and what would
have been received but for the unlawful conspiracy”); In re Cardizem CD
Antitrust Litig., 332 F.3d 896, 904 (6th Cir. 2003); Greater Rockford
Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391, 401-02 (7th Cir.
1993); Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381,
394 (8th Cir. 1987); Argus, Inc. v. Eastman Kodak Co., 80 1 F.2d 38, 41
(2d Cir. 1986).
3. See, e.g., Warrior Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d
281, 285 (6th Cir. 2010) (rule changes that never went into effect d id not
cause or threaten any injury); MetroNet Servs. Corp. v. US West
Commc’ns, 329 F.3d 986, 1009 (9th Cir. 2003), superseded on other
grounds sub nom. MetroNet Servs. Corp. v. Qwest Corp., 383 F.3d 1124
(9th Cir. 2004).

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