Antitrust Damages for Consumer Welfare Loss

Section 4 of the Clayton Act provides that any person who is injured in his business or property by reason of anything forbidden in the antitrust laws shall recover threefold the damages by him sustained. The current private enforcement model usually permits plaintiffs to recover damages based upon the excessive prices charged to consumers. However, economists see the real loss to society from an antitrust violation to be the consumer welfare loss which results from reduced output. The authors have been unable to locate any antitrust case which has permitted recovery of damages for this consumer welfare loss. Therefore, this article addresses the following issues: if consumer welfare loss is the true measure of the damage to society from an antitrust violation, should it be included in a damage recovery; if consumer welfare loss is recoverable, who is the proper party to recover for the loss; and what difficulties are there in measuring such a loss for purposes of awarding damages