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Rubinfeld, Daniel L. --- "Antitrust Damages" [2012] ELECD 227; in Elhauge, R. Einer (ed), "Research Handbook on the Economics of Antitrust Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Antitrust Law

Editor(s): Elhauge, R. Einer

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440807

Section: Chapter 14

Section Title: Antitrust Damages

Author(s): Rubinfeld, Daniel L.

Number of pages: 17

Extract:

14 Antitrust damages
Daniel L. Rubinfeld*


I INTRODUCTION

Antitrust private actions have been an important component of civil enforcement in the
United States since the passage of the Clayton Act.1 Private actions have been seen, in
combination with public enforcement, as a means of achieving an appropriate level of
deterrence. However, they have also been viewed as a mechanism for compensating those
who were injured by illegal anticompetitive activities.2 In recent years, private antitrust
enforcement has been growing outside the United States. Such actions are now available
in parts of Asia (e.g., Japan) and in England. Private actions will almost certainly grow
throughout the European Union as well.3
To obtain a financial recovery in a private action, the plaintiff must prove three distinct
elements: (1) an antitrust violation; (2) antitrust injury;4 and (3) damages ­ a measure of
the extent of the injury. In this chapter, I focus entirely on the important third element
­ antitrust damages. While much of the analysis is conceptual in nature, the analytical
details do depend on the institutional context in which damages are applied. Therefore,
unless otherwise noted it will be presumed that we are operating within the US private
civil litigation system.5
In order to pursue an antitrust case, the plaintiff must have been injured, i.e., have
standing to sue. Under federal law, only direct purchasers have such standing.6 Direct
purchaser suits can be brought through the class action mechanism or individually.7


* I wish to thank ...