| Joshua P. Davis
Public Enforcement, Private Enforcement, Section 1 of the Sherman Act, Competition Policy
The American Antitrust Institute (AAI) and the University of San Francisco School of Law (USF Law) released a commentary (Commentary) on a new report examining antitrust class actions in federal court from 2013 to 2018. The 2018 Antitrust Annual Report (2018 Report) finds that cases settled since 2013 have recovered more than $19 billion on behalf of victims of antitrust violations, with settlements in 2018 totaling about $5 billion. The 2018 Report was jointly produced by USF Law and Huntington National Bank.
Private enforcement actions are brought under two main federal statutes: the Sherman Antitrust Act and the Clayton Antitrust Act. The laws prohibit collusive agreements, monopolization, and mergers that are likely substantially to lessen competition. Federal courts oversee many private enforcement actions. The 2018 Report finds that most cases are filed in four judicial districts: the Northern District of California, the Southern District of New York, the Eastern District of Pennsylvania, and the Eastern District of Michigan.
“As concern over declining competition in the U.S. mounts, private enforcement is more important than ever,” said American Antitrust Institute President Dr. Diana Moss. “We see strong evidence of successful decisions and recoveries in antitrust class actions from 2013-2018, most of which involve illegal, anticompetitive agreements or conspiracies. Private enforcement remains a critical tool in the U.S. enforcement system and can deliver meaningful compensation to victims and deter future illegal conduct,” explained Moss.
“The 2018 Antitrust Annual Report is the first such annual research effort,” Professor Joshua Davis, Director of the Center for Law and Ethics, University of San Francisco School of Law, noted. “The law firms prosecuting private antitrust enforcement actions play a crucial role in the public interest as private attorneys general because there are not enough government ‘cops’ on the antitrust beat. The U.S. system relies almost entirely on private enforcement to compensate victims. Moreover, private damages often dwarf the sanctions imposed by government actors, providing a critical deterrent to wrongdoers,” Professor Davis explained.
The AAI-USF Law Commentary highlights a number of key takeaways from the 2018 Report’s data on antitrust actions over the period 2013-2018. These collectively signal the efficiency and effectiveness of private enforcement — and the antitrust class action in particular.
- Private enforcement resources are focused efficiently on violations that harm victims, such as consumers and businesses. The process reflects, among other things, consolidation of cases and settling cases within a relatively short period of time. “The data demonstrate that private enforcement works efficiently, often against well-resourced defendants,” commented AAI’s Moss.
- Private antitrust enforcement continues to be effective, across the board. From to 2013 to 2018, there was robust growth in total annual settlement amounts across settlement sizes. Smaller settlements of up to $99 million per case grew by more than 30 percent per year and larger settlements of $100-$499 million per case grew at almost 120 percent per year. “This growth in recoveries across most settlement size categories signals that private enforcement is effective across the board,” noted Moss.
- Private enforcers obtain sizable recoveries associated with large, often global antitrust conspiracies that disrupt commerce and victimize thousands, or even millions, of U.S. consumers. While there were many more smaller settlements than larger ones over the period 2013-2018, more than half of the total recovery over the period 2013-2018 came from 14 large settled cases. “These cases often target antitrust conspiracies, which are often perpetrated by foreign companies and can result in billions of dollars of overcharges and other market distortions in the U.S. economy,” observed Professor Davis.
The Commentary provides additional insight into antitrust class actions over the period 2013-2018, with sections on influential case law surrounding two-sided transaction platforms, the indirect-purchaser rule, classes containing uninjured members, and agreements among employers that restrict employee hiring and wages.
The Commentary also highlights four major antitrust class action cases settled within 2013 to 2018. These include, among others, the alleged decade-long conspiracy to rig foreign currency prices by the world’s largest banks, designed to overcharge public pension funds and other investors by many billions of dollars. Another is a criminal conspiracy to fix the prices of auto parts that raised prices for American auto dealers and consumers.
“The Commentary uses the occasion of the 2018 Report to step back and observe the U.S. private enforcement system and the antitrust class action device through a broader lens, both empirically and qualitatively,” Moss stated. Davis noted further that the 2018 Report “Highlights fruitful areas for further academic work in studying private antitrust enforcement actions, their deterrence effect, and compensation for victims of illegal activity.”
“It is our hope that the 2018 Report and Commentary together will provide a greater understanding about the significant results achieved through private antitrust enforcement,” Moss added. The 2018 Report relied to a significant degree upon data gathered using artificial intelligence provided by Lex Machina, a litigation data system that emerged from Stanford University’s Law School and Computer Science department.
###
Based in Washington, D.C., the American Antitrust Institute is an independent, nonprofit organization devoted to promoting competition that protects consumers, businesses, and society. It serves the public through research, education, and advocacy on the benefits of competition and the use of antitrust enforcement as a vital component of national and international competition policy.
Founded in 1912, the University of San Francisco School of Law provides a rigorous education – from intellectual property law to litigation and more — with a global perspective in a diverse, supportive community. It is fully accredited by the American Bar Association and a member of the Association of American Law Schools.
For more information, contact:
Diana Moss, President, American Antitrust Institute
720-233-5971
dmoss@antitrustinstitute.org
Joshua Paul Davis, Professor of Law, University of San Francisco School of Law
415-422-6223
davisj@usfca.edu
