Chapter 26


Don T. Hibner Jr.Nels A. PearsallAndrew E. ReismanRoy Weinstein

26.1 Introduction

Antitrust laws protect free enterprise against “contracts, combinations and conspiracies in restraint of trade,” monopolization, misuse of market power, and mergers that pose undue threats to competition. Customers, suppliers, and competitors can sue for damages caused by antitrust violations; indeed, U.S. statutes entitle successful plaintiffs to treble damages, prejudgment interest, and attorneys’ fees to encourage vigorous enforcement of the law.1

The overarching proposition remains that antitrust laws are intended to protect against abuses that would distort or corrupt the workings of competitive markets.

As well stated by the Supreme Court in Spectrum Sports, Inc. v. McQuillan:

The purpose of the [Sherman] Act is not to protect business from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.2

As befits an area of law dealing with market competition, expert testimony from economists is critical to establishing the violation of law: a restraint of trade in a relevant product and geographic market, causation of antitrust injury (injury to the plaintiff attributable to lessening of competition), and, along with other financial experts, quantification of damages.3

An emphasis on economic ...

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