Introduction

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CHAPTER I

INTRODUCTION

Since Congress enacted the Clayton Act in 1914, private parties have

been authorized to maintain private causes of action for alleged

violations of the antitrust laws.1

The provisions of the Sherman and Clayton Acts permitting the

recovery of treble damages and awarding attorneys’ fees increase the

incentive for plaintiffs to pursue antitrust claims. As the U.S. Supreme

Court has noted, “[b]y offering potential litigants the prospect of a

recovery in three times the amount of their damages, Congress

encouraged these persons to serve as ‘private attorneys general.’”2The

Supreme Court also has called the “treble-damages provision wielded by

the private litigant . . . a chief tool in the antitrust enforcement scheme”

because the treble damage threat creates “a crucial deterrent to potential

violators.”3

This “crucial deterrent” effect is viewed as a primary purpose of the

antitrust laws. “[T]he purposes of the antitrust laws are best served by

insuring that the private action will be an ever-present threat to deter

anyone contemplating business behavior in violation of the antitrust

laws.”4

Some say these incentives have had their intended effect, in that

there are “roughly ten private federal cases for every case brought by the

Department of Justice or Federal Trade Commission.”5 “In major cartel

1. Under the Clayton Act, “any person who has been injured in his business

or property by reason of anything forbidden in the antitrust laws may sue

therefor . . . and shall recover threefold the damages by him sustained,

and the cost of suit, including a reasonable attorney’s fee.” 15 U.S.C.

§ 15(a).

2. Hawaii v. Standard Oil Co., 405 U.S. 251, 262 (1972).

3. Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614, 635 (1985).

4. Perma Life Mufflers, Inc. v. Int’l Parts, 392 U.S. 134, 139 (1968).

5. Daniel A. Crane, Optimizing Private Antitrust Enforcement, 63 VAND. L.

REV. 675, 675-76 (2010).