The Evolving Role of Business Torts in Antitrust Litigation

• Pages: 1-11

CHAPTER I

THE EVOLVING ROLE OF BUSINESS

TORTS IN ANTITRUST LITIGATION

Many violations of the antitrust laws do not involve

attempts to injure competitors; indeed, so-called “hard core”

antitrust violations – such as price-fixing and customer

allocation – benefit competitors at the expense of consumers.

Attempts to injure competitors, however, also may result in

antitrust injury. This chapter traces the role of business torts

and unfair competition in private civil litigation under the

antitrust laws. Chapter 2 reverses the lens, examining the

application of antitrust principles to business tort claims. –

Eds.

A. Introduction

Antitrust and business tort claims and defenses frequently converge

in the same litigation. Although these two areas of the law cover

common ground, they have developed separately and reflect different

policy concerns.

The U.S. Supreme Court has stressed that the antitrust laws were

enacted for “the protection of competition, not competitors.”1 A federal

appellate court similarly has remarked:

1. Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962); Brunswick

Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488 (1977) (quoting

Brown Shoe); see also Hunt v. Crumboch, 325 U.S. 821, 826 (1945)

(Sherman Act “does not purport to afford remedies for all torts committed

by or against persons engaged in interstate commerce”); Brooke Group

Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225 (1993)

(“Even an act of pure malice by one business competitor against another

does not, without more, state a claim under the federal antitrust laws[.]”);

see generally 1 LOUIS ALTMAN, CALLMANN ON UNFAIR COMPETITION,

TRADEMARKS & MONOPOLIES § 4:3 (4th ed. 2004) (“Unfair competition

and obstruction of free competition are both included in the definition of

‘unfair methods of competition’ contained in section 5 of the Federal