Attorneys’ Fees in Antitrust Litigation: Making the System Fairer

Abstract

(Excerpt) Section 4(a) of the Clayton Act entitles prevailing plaintiffs in private antitrust actions to recover, in addition to treble damages, their reasonable attorneys\u27 fees. Unique when adopted as part of the Sherman Act in 1890, this fee-shifting provision has been imitated, at least in part, in over 100 federal statutes. In providing for attorneys\u27 fees, Congress intended to promote private enforcement of the antitrust laws and to insulate the treble damages recovery from expenditures for legal fees. Fee-shifting is mandatory where a plaintiff prevails, but the court has some leeway in setting the amount of the fee. The controversy over the quantum of proof necessary to establish the fee award has been extensively litigated in the district and circuit courts. Although there is now widespread agreement on the principles for measuring fee awards, the criteria include a subjective component that may yield vastly differing results in cases involving similar facts