Summaries of Twenty Cases of Successful Private Antitrust Enforcement

This document summarizes twenty cases of successful private antitrust enforcement. These twenty summaries build on earlier summaries of forty additional cases of successful private enforcement available at http://ssrn.com/abstract=1105523. An analysis of the data from the original forty cases is available at http://ssrn.com/abstract=1090661 (published as Robert L. Lande and Joshua P. Davis, Benefits From Private Antitrust Enforcement: An Analysis of Forty Cases, 42 U.S.F. L. REV. 879 (2008)) and an argument based on the forty cases that private antitrust enforcement has greater deterrence effects than criminal enforcement by the Department of Justice is available at http://ssrn.com/abstract=1565693 (published as Robert L. Lande and Joshua P. Davis, Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws, Brigham Young University Law Review, 315, 2011)

The Extraordinary Deterrence of Private Antitrust Enforcement: A Reply to Werden

Our article, Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws, 2011 B.Y.U. L. Rev. 315, documented an extraordinary but usually overlooked fact: private antitrust enforcement deters a significant amount of anticompetitive conduct. Indeed, the article showed that private enforcement probably deters even more anticompetitive conduct than the almost universally admired anti-cartel enforcement program of the United States Department of Justice. In a recent issue of Antitrust Bulletin, Gregory J. Werden, Scott D. Hammond, and Belinda A. Barnett challenged our analysis. They asserted that our comparison “is more misleading than informative.” It is unsurprising that they would question our position, given its heretical nature (not to mention their understandable loyalty to the fine institution that employs them). However, their specific criticisms do not withstand scrutiny. In their Antitrust Bulletin article they offered six separate critiques of our analysis, each of which this response considers and rebuts in turn. Although our original article considered a large number of factors and requires 71 law review pages, the core of the comparison it undertook is relatively straightforward: The article added together the value of every DOJ anti-cartel sanction from 1990 to 2007, including fines, restitution, and an equivalent value for time spent in detention. This totaled $7.737 billion. The article compared this amount to the$21.9 to 23.9 billion in sanctions resulting from just 40 large private antitrust cases that ended during the same period. On the basis of this and other evidence the article concluded, with appropriate qualifiers, that private enforcement probably deters more anticompetitive activity than DOJ anti-cartel enforcement. The article also noted that private enforcement deserves much more praise than it typically receives, not the scorn so frequently given to it by the antitrust field. In this response, we explain why our original conclusions survive the efforts of Werden, Hammond, and Barnett to debunk them

The Extraordinary Deterrence of Private Antitrust Enforcement: A Reply to Werden

Our article, Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws, 2011 B.Y.U. L. Rev. 315, documented an extraordinary but usually overlooked fact: private antitrust enforcement deters a significant amount of anticompetitive conduct. Indeed, the article showed that private enforcement probably deters even more anticompetitive conduct than the almost universally admired anti-cartel enforcement program of the United States Department of Justice. In a recent issue of Antitrust Bulletin, Gregory J. Werden, Scott D. Hammond, and Belinda A. Barnett challenged our analysis. They asserted that our comparison “is more misleading than informative.” It is unsurprising that they would question our position, given its heretical nature (not to mention their understandable loyalty to the fine institution that employs them). However, their specific criticisms do not withstand scrutiny. In their Antitrust Bulletin article they offered six separate critiques of our analysis, each of which this response considers and rebuts in turn. Although our original article considered a large number of factors and requires 71 law review pages, the core of the comparison it undertook is relatively straightforward: The article added together the value of every DOJ anti-cartel sanction from 1990 to 2007, including fines, restitution, and an equivalent value for time spent in detention. This totaled $7.737 billion. The article compared this amount to the$21.9 to 23.9 billion in sanctions resulting from just 40 large private antitrust cases that ended during the same period. On the basis of this and other evidence the article concluded, with appropriate qualifiers, that private enforcement probably deters more anticompetitive activity than DOJ anti-cartel enforcement. The article also noted that private enforcement deserves much more praise than it typically receives, not the scorn so frequently given to it by the antitrust field. In this response, we explain why our original conclusions survive the efforts of Werden, Hammond, and Barnett to debunk them

Arbitration: Trial by Other Means or Settlement by Other Means?

OVER A CENTURY ago, Oliver Wendell Holmes, Jr. wrote, The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. This definition offered a refreshing realism. It directed those who sought the law to turn away from the abstract legal principles found in dusty books and toward the actual decisions of judges in courts

Legal Obstacles to Private Enforcement of Competition Law

Private enforcement of competition law serves many important goals, including deterrence of future anti-competitive harms and correction of past harms. This article sheds light on several potential legal obstacles to such enforcement which could prevent it from achieving its goals. The examples mainly build upon the experience of different jurisdictions with private litigation. It also suggests some possible solutions for dealing with or limiting such obstacles. As Europe is in the early stages of applying its Damages Directive and creating a private competition law enforcement regime, recognising – and possibly avoiding – obstacles to efficient private enforcement is both timely and important

Toward an Empirical and Theoretical Assessment of Private Antitrust Enforcement

The dominant view in the antitrust field is that private enforcement cases, and especially class actions, accomplish little or nothing positive but, on the contrary, are counterproductive. Despite strongly worded convictions, that view has been premised on anecdotal, self-serving and insufficiently substantiated claims. Indeed, the authors\u27 2008 study of 40 private cases appears to constitute the only systematic effort to gather information about a significant number of private antitrust actions. That study generated a great deal of controversy, including questioning of our conclusions by high officials at the Department of Justice and by Professor Daniel Crane at the University of Michigan Law School. Given this subject\u27s importance and controversial nature we undertook a supplemental study of 20 additional private antitrust cases. This article analyzes the 20 new cases, compares and contrasts them with that of our earlier group, and draws insights from all 60. The studies demonstrate that private litigation has provided substantial cash compensation to victims of anticompetitive behavior: at least $33.8 to$35.8 billion. The studies also show that private antitrust enforcement has had an extremely strong deterrent effect. In fact, private enforcement probably deters more anticompetitive behavior than even the appropriately acclaimed anti-cartel program of the U.S. Department of Justice Antitrust Division. Another purpose of our study was to ascertain important characteristics of private antitrust cases that could help influence the debate over their efficacy. These include whether there were indicia that the cases had underlying merit, the significance of recoveries from foreign violators of U.S. antitrust law, and the sizes of attorney’s fee awards and claims administration expenses. Finally, this article responds to criticisms of our analysis and our conclusions. In particular, we explain why the Department of Justice officials are incorrect in challenging our claims about the deterrence effects of private antitrust enforcement and why Professor Crane is similarly mistaken regarding its compensation effects. We explain why our earlier study did indeed demonstrate the truly significant benefits of private antitrust actions — conclusions our new empirical work confirms and strengthens

The Proposed Damages Directive: The Real Lessons from the United States

Europeans should be doubly cautious when they study the U.S. experience with private antitrust enforcement. Nevertheless, there are ten specific lessons they can learn. None, however, is consistent with the conventional wisdom in the international competition community that U.S.-style private enforcement has been a disaster. Each should help Europe objectively consider the Commission\u27s proposed Directive concerning private enforcement of Competition law

The Proposed Damages Directive: The Real Lessons from the United States

Europeans should be doubly cautious when they study the U.S. experience with private antitrust enforcement. Nevertheless, there are ten specific lessons they can learn. None, however, is consistent with the conventional wisdom in the international competition community that U.S.-style private enforcement has been a disaster. Each should help Europe objectively consider the Commission\u27s proposed Directive concerning private enforcement of Competition law