Antitrust and Consumer Protection
Competition: Fall 2014, Vol. 23, No. 2
Content
- "All Natural" Class Actions: a Plaintiff Perspective
- Appellate Courts Grapple With the Foreign Trade Antitrust Improvements Act—Plaintiffs' Perspective
- Cafa: Recent Developments On the Jurisdictional and Settlement Fronts
- Chair's Column
- Defense Perspective: "All Natural" Class Actions
- Editor's Note
- Federal and State Class Antitrust Actions Should Not Be Tried In a Single Trial
- Ftc V. Wyndham Worldwide Corporation, Et Al. and the Ftc's Authority To Regulate Companies' Data Security Practices
- Joint Trial of Direct and Indirect Purchaser Claims
- Masthead
- Plaintiff Perspective: the Long Arm of State Antitrust Law
- Recoveries For Violations of Federal and California Antitrust Statutes Should Not Be Apportioned
- So Your Suppliers Conspired Against You: An Antitrust Class Action Opt-out Primer
- The Ftaia Limits the Extraterritorial Reach of State Antitrust Laws
- The Misapplication of Associated General Contractors To Cartwright Act Claims
- Why Associated General Contractors Should Be Used To Assess Standing In Cartwright Act Cases
- The Problem of Duplicative Recovery Under Federal and State Antitrust Law
THE PROBLEM OF DUPLICATIVE RECOVERY UNDER FEDERAL AND STATE ANTITRUST LAW
By Kyle W. Mach and Bradley E. Markano1
I. INTRODUCTION
Violations of the antitrust laws can have serious consequences for consumers and other players in the US economy. Understandably, federal and state legislatures have imposed significant penalties for those who commit such violations, and particularly for those who do so deliberately. These include not only criminal penalties, such as monetary fines and prison time, but also very substantial civil liabilities, with some allowing plaintiffs to recover treble damages.
Standing alone, any one of these types of actions—federal or state, criminal or civil—could serve as a strong deterrent to illegal behavior, and rightly so. But antitrust actions often do not come one-by-one. Instead, overlapping regulatory schemes allow concurrent enforcement by federal prosecutors, state attorneys general, and a long list of private plaintiffs, which can simultaneously hit defendants with enormous overlapping liabilities for the same conduct. Taken together, these liabilities create what Judge Richard Posner has called a "cluster-bomb effect" on the subject defendant,2 in which the costs of the anti-competitive conduct are borne repeatedly through related litigation of many different types in many different fora.