Antitrust and Unfair Competition Law

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

THE MISAPPLICATION OF ASSOCIATED GENERAL CONTRACTORS TO CARTWRIGHT ACT CLAIMS

By Jodie M. Williams and Kristen M. Anderson1

I. INTRODUCTION

The private right of action under the federal antitrust laws is conferred by Section 4 of the Clayton Act,2 which provides: "[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor . . . and shall recover threefold the damages by him sustained . . . ." Antitrust standing under Section 4 is distinct from constitutional standing under Article III, in which a showing of harm in fact establishes the necessary injury.3 In Associated General Contractors of California v. California State Council of Carpenters ("AGC"),4 the Supreme Court identified certain factors for determining whether a plaintiff has "antitrust standing" under Section 4.5

Recently, defendants have urged federal courts to apply AGC to determine whether plaintiffs have antitrust standing to bring state law antitrust claims, including claims under California’s Cartwright Act.6 According to defendants, because courts may look to the federal laws for "guidance" in interpreting Cartwright Act claims, the AGC standing test should be applied to determine standing under state antitrust law claims as well.7 The issue has become most prevalent in Cartwright Act claims brought by indirect purchaser plaintiffs.8

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