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Grimes, Warren S. --- "Fifteen Years of Supreme Court Antitrust Jurisprudence: The Defendant Always Wins" [2010] ELECD 234; in Zäch, Roger; Heinemann, Andreas; Kellerhals, Andreas (eds), "The Development of Competition Law" (Edward Elgar Publishing, 2010)

Book Title: The Development of Competition Law

Editor(s): Zäch, Roger; Heinemann, Andreas; Kellerhals, Andreas

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444461

Section: Chapter 2

Section Title: Fifteen Years of Supreme Court Antitrust Jurisprudence: The Defendant Always Wins

Author(s): Grimes, Warren S.

Number of pages: 32

Extract:

2. Fifteen Years of Supreme Court
Antitrust Jurisprudence: The
Defendant Always Wins*
Warren S. Grimes**

1 INTRODUCTION

In June of 1993, the Supreme Court decided Eastman Kodak Co v Image
Technical Services, Inc in a manner favourable to private plaintiffs.1 A year
later, in Hartford Fire Insurance Co v California, in an enforcement pro-
ceeding brought by US States and private parties, the court handed down
another decision largely favourable to plaintiffs. That was to be the last
Supreme Court decision favourable to plaintiffs in any sort of antitrust suit
in a 15-year period extending through today. The clock is still ticking.2
Examining only the private suits decided in the 16 years since Kodak, all
13 of them have been decided adversely to plaintiffs. In addition, in the only
post-Kodak decision involving a claim brought by a Federal agency, the
court in 1999 ruled unfavourably for the Federal Trade Commission.3 The
purpose of this chapter is to provide an overview of the Supreme Court's
approach to antitrust issues involving the 15 post-Kodak decisions, all but
one of them favouring defendants.4


* The title recalls Justice Potter Stewart's famous remark in his dissent in
United States v Von's Grocery Co [1966] USSC 105; 384 US 270, 301 (1962), that the `sole consist-
ency' to be found in merger litigation was that `the Government always wins'.
** Professor, Southwestern Law School, Los Angeles, CA, Senior Fellow,
American Antitrust Institute, Washington, DC, USA.
1 [1992] USSC 73; 504 US 451 (1992).
...