Document Type
Article
Publication Title
Antitrust Law Journal
Publication Date
2009
Volume
76
First Page
97
Abstract
(Excerpt)
This article examines the question of whether the statutory rule of mandatory treble damages should continue to apply in monopolization cases brought under Section 2 of the Sherman Act. The law of monopolization "has been a source of puzzlement to lawyers, judges and scholars." Compared to Section 1 of the Sherman Act, which has generated a plethora of case law and an emerging consensus on liability rules and remedies, the law of monopolization remains largely undeveloped with respect to both liability rules and remedies. In the remedies arena, the conversation has focused principally on equitable relief—conduct remedies versus structural remedies—and with good reason: the law has not evolved much since the Supreme Court's decision in Grinnell over forty years ago; but the playing field has changed drastically in that time with the emergence of a globalized high-tech economy. Lost in this conversation about equitable remedies is any discussion of monetary relief, including mandatory treble damages. Only recently have enforcement authorities analyzed the issue of monetary remedies in monopolization cases. Nevertheless, treble damages remain an important weapon in the Section 2 arsenal, and it is the very potency of the treble damage remedy that has led to the Supreme Court's skepticism of private damage actions in monopolization cases and in antitrust cases generally. As a result, the availability of treble damages is driving substantive outcomes in monopolization cases. For example, the Supreme Court in Trinko, concerned about the perverse incentives created by mandatory trebling, the high cost of error, the potential chilling of innovation, the enormous expense of monopolization litigation, and the inability of district judges to manage complex cases and reach the right decisions, dismissed the complaint at the pleading stage and, in so doing, significantly narrowed the bases for liability in Section 2 cases. Echoing these themes, the Court subsequently in Twombly raised the bar for pleading antitrust claims generally. Query whether the outcomes in Trinko and Twombly would have been different had the suits been for actual as opposed to treble damages.
Comments
©2009. Published in Antitrust Law Journal, Vol. 76, Issue. 1 (2009), by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.