Treble damages are perhaps the most well-known aspect of private antitrust litigation in the United States. A plaintiff successfully prosecuting an antitrust claim can indeed recover, not just the damages the plaintiff suffered, but three times that amount. Further, the plaintiff can also force the antitrust law violator to pay the attorney’s fees the plaintiff incurred. The possibility of recovering such a huge damages award has led to extensive litigation in the United States.
Plaintiffs often base their private enforcement claim on a claim one of the federal antitrust enforcers, the Antitrust Division of the Dept. of Justice and the Federal Trade Commission, or a state attorney general, has brought. State attorneys general can enforce federal antitrust law. The public enforcement litigation could relate to competition law, and thus statutes such as the Sherman Act and Robinson Patman Act or, pursuant to the FTC Act, to what is technically consumer protection law. The plaintiff thus lets these antitrust enforcers prove the main antitrust violation, and thereby makes it much easier and less expensive for the plaintiff to prove its antitrust case.
To succeed in its private antitrust enforcement action the plaintiff must, most importantly, prove antitrust injury. To prevail in this litigation, as the Supreme Court has made very clear, the plaintiff must show that it has itself suffered antitrust injury and can therefore recover damages. For example, indirect purchasers cannot recover damages. Only a direct purchaser, one who bought products at, for example, too high a price has suffered antitrust injury. A district court has, in many cases, dismissed an enforcement claim because the plaintiff failed to satisfy this demanding federal rule.
To make a private antitrust enforcement economical a plaintiff will often start a class action. Instead of many separate pieces of litigation, in a class action each antitrust plaintiff combines his claim with those of others. Each individual may have suffered only small antitrust injury, but by combining their claims each plaintiff may find it worthwhile to prosecute the litigation. A district court will usually appoint one lead counsel, who will manage such a class action.
Since a class action could recover treble damages, and attorney’s fees, private antitrust actions can recover quite a considerable sum of money. For this reason, unlike in Europe where a plaintiff will very often wait until the European Commission has started an antitrust action, in the United States much antitrust litigation starts with a plaintiff simply starting the litigation in a federal court. Given the amount of money at stake, an antitrust plaintiff will, very often, not wait for the antitrust enforcers to act. The plaintiff simply wants his money.