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)
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