Antitrust, UCL and Privacy

Competition: Fall 2014, Vol. 23, No. 2

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.

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