Misuse of the Antitrust Laws: The Competitor Plaintiff

In this article we ask (1) under what circumstances are competitor suits meritorious, and (2) do existing rules, such as those requiring proof of market power or other so-called filters and the requirement that plaintiffs suffer "antitrust injury," afford a reasonable prospect of eliminating anticompetitive misuses of the remedy by competitor plaintiffs? We evaluate a sample of seventy-four cases in which plaintiffs sued their rivals to learn how competitor plaintiffs use the private antitrust remedy. And because many of these cases allege anticompetitive exclusionary practices, we consider how recent theories of exclusionary practices may be used to support competitor claims. The sample, which was drawn from over 1900 private antitrust cases filed in five federal district courts over an eleven-year period, offers three advantages.

First, we can avoid the biases associated with studies that rely exclusively on litigated cases. As is well known, these do not represent the population of claims filed and, as a result, research that relies solely on published opinions cannot offer accurate insights into the overall character of private antitrust enforcement. Second, the time period covered by our sample permits an inquiry into the effectiveness of the Supreme Court's 1977 decision in Brunswick Corp. v. Pueblo Bowl-0-Mat, Inc., which articulated the principle that plaintiffs must allege that they suffered "antitrust injury" in preventing misuse (at least from the viewpoint of economic efficiency) of the remedy by competitors. Third, a substantial number of the competitor cases in the sample involve claims of anticompetitive exclusion and so allow us to gauge the quality of such claims.