At the federal level, the U.S. Department of Justice (DOJ) and the Federal Trade Commis-
sion (FTC) have the authority to enforce antitrust laws. On the private side, U.S. antitrust law permits
enforcement by victims of antitrust infringements. In enacting the antitrust laws, private enforcement
was meant to supplement public enforcement, which lacks sufficient resources to detect and prosecute
antitrust violations. However, private claims have become much more prominent and far outpace
government claims. Over 90%of antitrust litigation was filed by private plaintiffs between 1975 and
More recently, in 2013, it was indicated that 98%of antitrust cases in federal courts were
In fact, private enforcement has become so powerful that private enforcers indeed fill
in gaps of public enforcement of low detection and suboptimal fines.
A. Two Interrelated Goals of Private Antitrust Enforcement: Compensation and Deterrence
The U.S. Supreme Court has repeatedly held that the private right of action under the antitrust laws
serves two purposes: compensation and deterrence.
As regards the first objective, the enactment of
both the Sherman and Clayton Acts appreciated the compensation role of private claims. In order to
facilitate the objective of compensation, federal antitrust law authorizes the award of automatic treble
In fact, treble damages are the only meaningful tool to provide compensation to antitrust
However, considering the complexities in compensating antitrust victims, treble damages
are considered to provide only “rough justice” to sufferers.
Indeed, an overcharge can be so wide-
spread that the estimation of actual harm may be an insurmountable burden.
Another viewpoint holds that private suits are necessary to deter potential wrongdoers.
concept is based on the idea that public authorities have insufficient time and resources to prosecute
all the unlawful conduct and hence private litigators can secure additional layer of antitrust enforce-
ment. Trebling ensures that infringers internalize the sufficient cost of the harm caused by antic-
ompetitive behavior. In that regard, the Supreme Court noted that the “treble -damages provision
wielded by the private litigant is a chief tool in the antitrust enforcement scheme,” because the fear
of treble damages creates “a crucial deterrent to potential violators.”
Moreover and most importantly,
8. Clayton Act, 15 U.S.C. §§ 13–15.
9. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE, Table 5.41 (Antitrust Cases Filed in U.S. District Courts, by Type of
Case 1975-2004) (Aug. 1, 2016), http://www.albany.edu/sourcebook/pdf/t5412004.pdf.
10. Fed. Judicial Caseload Statistics, Table C-2: U.S. District Courts—Civil Cases Commenced, by Basis of Jurisdiction and
Nature of Suit, During 12-Month Period Ending March 31, 2012 and 2013, http://www.uscourts.gov/Statistics/
FederalJudicialCase loadStatistics/caselo ad-statistics-2013.a spx (last visited Aug. 1, 2016) (i ndicating that out of 776
antitrust cases in federal courts 762 were private actions).
11. See,e.g., Pfizer, Inc. v. Gov.’t of India, 434 U.S. 308, 314 (1978) (stating that “[the Clayton Act] has two purposes: to deter
violator and deprive them of ‘fruits of their illegality,’ and “to compensate victims of antitrust violators for their injuries”)
(citations omitted); Am. Soc. of Mech. Eng’rs v. Hydrolevel Corp., 456 U.S. 556
, 575–76 (1982) (asserting that “treble
damages serve as a means of deterring antitrust violations and of compensating victims”).
12. 51 Cong. Ch. 647, July 2, 1890, 26 Stat. 209, part 7 (1890). The private right of action provision was slightly modified in
1914 in Section 4 of the Clayton Act; 63 Cong. Ch. 323, 38 Stat. 73, part 4 (1914).
13. See,e.g., Blue Shield of Va. v. McCready, 457 U.S. 465, 472 (1982) (noting that treble damages “would provide ample
compensation to victims of antitrust violations”). For further discussion, see,e.g., Steven C. Salop & Lawrence. J. White,
Economic Analysis of Private Antitrust Litigation,74G
EO. L.J. 1001, 1051 (1986).
14. Edward D. Cavanagh, The Private Antitrust Remedy: Lessons from the American Experience,41LOY.U.CHI. L.J. 629, 632
(2010) (citing Robert H. Lande, Are Antitrust “Treble” Damages Really Single Damages? 54 OHIO ST. L.J. 115, 118
(1993)). Cavanagh provides a monopolization example where the difficulties occurred in reconstructing the “but for” test in
the case LePage’s, Inc. v. 3 M Co., 324 F.3d 141
, 164–66 (3d Cir. 2003) (en banc), cert.denied, 542 U.S. 953
Blue Shield of Va. v. McCready, 457 U.S 465
, 472 (1982). On this point see,e.g.,A
NTITRUST MODERNIZATION COMMISSION,
REPORT AND RECOMMENDATIONS, 246–47 (2007), http://govinfo.library.unt.edu/amc/report_recommendation/
amc_final_report.pdf (last visited Aug. 11, 2016).
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614
, 635 (1985) (citations omitted).