JOURNAL OF BUSINESS ENTREPRENEURSHIP & THE LAW
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Let the State Decide: The Efficient Antitrust Enforcer and the Avoidance of Anticompetitive Remedies

Let the State Decide: The Efficient Antitrust Enforcer and the Avoidance of Anticompetitive Remedies

If the antitrust remedy a private party pursues would likely have anticompetitive consequences, would only the government constitute an efficient enforcer of the antitrust laws? Imagine that a plaintiff sues for a remedy so large that the award of the remedy would meaningfully increase market concentration by sending the defendants into bankruptcy. Is such a plaintiff an efficient enforcer of the antitrust laws? Should courts hold that in this situation only the government should be able to challenge the alleged conduct? These questions have gone unaddressed in academic literature because litigation rarely raises the specter of the anticompetitive remedy. Recently, however, the U.S. Court of Appeals for the Second Circuit stated the plaintiffs in the ongoing London Interbank Offered Rate (LIBOR) case are pursuing damages that, if granted, would have anticompetitive consequences. This raises two related questions. First, can there be an anticompetitive remedy? Second, if such a remedy is economically plausible, how should the law address it? This Article argues that anticompetitive remedies are plausible and that private parties pursuing them constitute inefficient antitrust enforcers without standing. The government would be a more efficient enforcer than such private parties because it has a greater incentive to seek genuinely procompetitive outcomes. Although the Sherman Act’s private treble damages provision facilitates competition by creating enormous financial incentives for private litigants and their counsel to initiate antitrust actions, such incentives may have anticompetitive consequences where bankruptcy-inducing damages would result. This Article proposes a three-prong test for courts to use in deciding whether to deny a plaintiff standing because of the remedy he or she seeks.

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