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Antitrust injury

Antitrust injury: Plaintiff must show that (Brunswick):

(1) P suffered an injury

  • P is a rival firm: exclusion
    • Harm P suffers because D has just made a better product is not cognizable: while the rival firm is harmed, the harm is unlikely to affect other downstream parties, so there is no harm to competition
  • P is a transaction partner: exclusion and collusion

(2) Caused by D’s (unlawful) collusive or exclusive conduct

  • Exception: tying under the per se rule is neither exclusive nor collusive and does not require P to prove causation

(3) Of the kind antitrust law is intended to prevent

  • Equivalent to an injury to competition (collusion or exclusion)
Examples:

Brunswick: P cannot recover damages under Clayton Act S7 for D’s acquisition of P’s failing competitor

  • To recover, a consumer must show collusion, a competitor must show exclusion

Cargill v. Monfort: P competitor must show a reasonable likelihood of exclusionary conduct to enjoin a merger under Clayton Act S7 (S16)

  • Nonprofit hospital doesn’t like that their patients are likely to be affected by a hospital merger. However, the nonprofit hospital can’t sue because they are not suffering from collusion or exclusion.

Competitors cannot recover damages for a Section 1 price-fixing claim – only customers can

  • Exam note: for every fact pattern,

Where is there potentially collusion or exclusion?

If there is exclusion, can you bring a claim under S1 or S2?

  • If exclusion, competitors can bring the action

If collusion, bring under S1

  • If collusion, consumers can bring the action

In any instance, government can bring the case