Authors: Jonathan E. Nuechterlein and Timothy J. Muris, Sidley Austin LLP
Antitrust issues have risen to prominence in today’s public policy debates, largely on the back of growing populist sentiments on both sides of the aisle.
A recent staff report (the Report) issued by the House Judiciary Committee’s Subcommittee on Antitrust, Commercial, and Administrative Law advocates for legislation that would revamp antitrust doctrine and practice in a way that would widen the scope of antitrust liability.
As well as calling for expansive public antitrust enforcement, the Report advocates for changes that would effectively open the floodgates for private antitrust litigants—and this is the focus of ILR’s white paper.
First, our research summarizes the current regime for private antitrust remedies in the United States and explains how it systematically stacks the deck in favor of plaintiffs, even compared to non-antitrust litigation.
Next, this paper outlines how, in the context of antitrust litigation launched by private litigants, the Report’s recommendations would eliminate standards for antitrust injury; effectively remove any requirement to prove standing; weaken procedural checks on frivolous litigation; undermine arbitration; and lower pleading requirements.
The paper concludes by urging decision makers not to further stack the deck against private enterprise at a moment of unique economic instability by adopting the recommendations of this Report.View PDF