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With the Illinois Brick Wall Down, What’s Left?: Determining Antitrust Standing Under State Law | Author: Kellen S. Dwyer

With the Illinois Brick Wall Down, What’s Left?: Determining Antitrust Standing Under State Law | Author: Kellen S. Dwyer

This Article deals with a problem which has repeatedly arisen in state and federal courts, resulting in a number of splintered opinions. In 1977, the Supreme Court ruled that only direct purchasers of a price-fixed product may sue under the Sherman Act. Thus, under the “Illinois Brick rule,” consumers who buy a price-fixed product from a middle-man may not sue. Many states responded by passing “Illinois Brick repealers” which aimed to allow such suits. This Article addresses two questions which have divided the state and federal courts: Did the Illinois Brick repealers grant automatic standing to any indirect purchaser of a price-fixed product, or did they simply repeal the per se rule that indirect purchasers can never sue, leaving the question of which indirect purchasers may sue to a traditional “antitrust standing” analysis? If the latter, to what extent must the traditional antitrust standing doctrine be modified to render it consistent with the policies of the Illinois Brick repealers? Although no academic piece has considered these questions, twenty state and federal courts have-all within the last ten years. This Article summarizes the approaches the courts have taken to both of these questions, criticizes those that have gone wrong in its view, and offers a modified test that is both practical and faithful to the policy choices embodied in the repealers.

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