Annual Survey of Virginia Law: Antitrust and Trade Regulation

In this past year, as in previous years, Virginia courts have imposed strict requirements on plaintiffs bringing antitrust claims. While antitrust claims remain popular, many have foundered because the plaintiff either failed to show the existence of an antitrust conspiracy or antitrust injury, or the plaintiff inadequately defined the market allegedly affected by the antitrust violation. The courts' exacting scrutiny extends beyond the elements of the action itself to procedural rules, evidentiary requirements and remedies. While one Fourth Circuit case suggests a slight relaxation in the analysis of state action immunity, the apparent adoption of the "market screen" analysis in the Fourth Circuit imposes a threshold burden on private plaintiffs of showing that the defendant has market power.