Procedural Directions in Antitrust Treble Damage Litigation: An Overview of Changing Judicial Attitudes

Published date01 December 1972
Date01 December 1972
AuthorSheidon O. Collen
DOI10.1177/0003603X7201700402
Subject MatterArticle
PROCEDURAL
DIRECnONS IN
ANTITRUST
TROLE
DAMAGE UTIGAnON: AN
OVERVIEW
'OF
CHANGING JUDICIAL AmTUDES
by
SHELDON
O.
COLLEN-
I.
PRACTICE
AND PROCEDURE Is
THE
ESSENCE
OF
TREBLE
DAMAGE
LITIGATION
The lawyer who brings or defends a treble damage action
does so
after
the fact. He looks
at
the past. He makes use
of an
array
of practices and procedures to discover the his-
torical parts, to reconstruct them and to combine them into
apattern that either establishes or negates violation of the
law, injury and damages.
Substantively, the inventory of antitrust prohibitions is
misleadingly compact and simple. Section 1 of the Sherman
Act prohibits conspiracies in restraint of trade. Section 2 pro-
hibits monopolies, attempts to monopolize and conspiracies to
monopolize. Section 3 of the Clayton Act condemns exclusive
dealing and unlawful tie-ins. Section 7 of the Clayton Act
prohibits anticompetitive mergers and acquisitions. The
Robinson-Patman Act describes and condemns unlawful price
discrimination and sales
at
unreasonably low prices. Section
5 of the Federal Trade Commission Act describes and pro-
scribes unfair methods of competition.
The prohibitions become illusive and indefinite, however,
8S
each particular attempt is made to apply any of them to the
structure and dynamics of an industry, to any line of com-
merce, to any relevant market, to any competitive
practices-
or to any business practices or institutions. One of the major
reasons so much antitrust litigation is so complex and pro-
Friedman &Koven, Chicago, Ill.
997
998
THE
ANTITRUST
BULLETIN
tracted is
that
the attorneys generally need to expend
vast
amounts of time and effort to understand the business mean-
ing of the practices in controversy.
After
a few years
(it
may
be anywhere from two to fifteen years) of conferences, study,
depositions, interrogatories, document inspection, brief writ-
ing, oratory, negotiations and posturing, counsel on both
sides may
learn
enough about the kind of business and prac-
tices involved to convert themselves from adversaries to
judges. The battle may then simmer down, a community of
knowledge and even fellowship may develop, and settlements
become possible. The
truth
is
that
practice, procedure and
settlement constitute the beginning and the end of almost
every lawsuit. This is particularly
true
in
private
treble dam-
age actions. Of the many thousands of private actions filed
since the inception of the Sherman Act in 1890 and the addi-
tional uncounted numbers
that
have been recognized and as-
serted
but
never filed, it is doubtful if more
than
150 were
tried and went to judgment. Thus, both prosecution and de-
fense
are
matters
of
pretrial
tactics,
strategy
and procedure
rather
than
of actual
trial
technique and definitive climax.
II.
THE
EXPANDING
UNIVERSE
OF
PRIVATE
ANTITRUST
TREBLE
DAMAGE
LITIGATION
We can divide the universe of private treble damage litiga-
tion into three distinctive periods of accelerating activity.
In
the first period, from the passage of the Sherman Act
until the end of World
War
II
in 1945, private actions were
Infrequent.' Filings ranged from a
total
of 5 between 1890
and 1894 to a high of 270 between 1940and 1944.
In
the second
period, the years from 1945 through 1959, the filings increased
markedly. This period began with the Supreme Court's deci-
sion in Bigelow v.
RKO
Radio Pictures, Inc., 327 U.S. 251
(1946) upholding a 1945 motion picture exhibitor treble dam-
1Data, except as otherwise indicated, from Posner, A Statistical
Study of Antitrust Enforcement," 13 J. of Law
and
Econ. 365 (1970)
at 371,et seq.
DIRECTIONS
IN
TREBLE DAMAGE LITIGATION 999
age judgment which vastly simplified proof of damages.
It
ended with the
last
filings of such cases in 1958 or 1959. A
total of
2,545
private
actions were filed in the period, in-
cluding approximately 400 motion picture exhibitor eases,"
The
third
period, the decade of the 1960's to the present,
marks the coming of age of private treble damage litigation.
The major forces were the Electrical Equipment cases,'
erosion of the rule of
grand
jury
secrecy," the work of the
Coordinating Committee on Multiple Litigation, enactment of
the Multidistrict Litigation Act," deliberate encouragement
of class suits through revamping Rule 23 of the Federal Rules
of Civil Procedure," demise of the "passing on" doctrine,"
and the virtual destruction of the in-pari delicto defense,"
An important catalyst with its foundation in the Electrical
Equipment cases has been the willingness of states, counties,
villages and numerous other kinds of government agencies
throughout the country to file suits
for
treble damages based,
no doubt, on their satisfactory experience in the Electrical
Equipment eases,"
Between
January
1, 1960 and December 31, 1971, 6,579
private treble damage actions were filed, together with 2,233
2As to filing of motion picture exhibitor cases see material infra
under caption "Class Actions."
a The definitive story of administration of
the
Electrical Equip-
ment cases by the Coordinating Committee was presented in Neal &
Goldberg, The Electrical Equipment Antitrust Cases: Novel Judicial
Administration, 50 A.B.A.J. 621 (1964).
Dennis v. United States, 384 U.S. 855 (1966).
s28 U.S.C.A. sec. 1407 (adopted
April
29, 1968).
6Rule 23,
Federal
Rules of Civil Procedure, amended
February
28, 1966, effective
July
1, 1966, Title 28, U.S.C.A.
7Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S.
482 (1968).
8Permo Life Mutfters, Inc. v.International Parts Corp., 392 U.S.
134 (1968).
9According to a
January
18, 1972 article in The Wall
Street
Journal
(p. 1)
at
that
time
at
least 33 states
had
antitrust
cases pend-
ing.

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