Causation and Remoteness: the US Perspective
Joint and several liability, treble damages and attorneys’ fees make antitrust cases particularly attractive to private plaintiffs in the United States. Designed as a deterrent to anticompetitive conduct, these features also incentivise litigation, but only for those who can show a connection between the alleged unlawful conduct and their injury. Courts and commentators have long recognised that an ‘over-broad’ application of treble damages ‘could result in overdeterrence’, potentially ‘ruinous costs on antitrust defendants’, ‘severely burdening the judicial system’ and ‘possibly chilling economically efficient competitive behavior’. Given this, the Supreme Court has found it ‘reasonable to assume that Congress did not intend to allow every person tangentially affected by an antitrust violation to maintain an action to recover threefold damages for the injury to his business or property’.
At core, the antitrust laws care about the health of competition. The causation requirement has become a fundamental gatekeeper, used to weed out those plaintiffs who are not actually harmed by an alleged reduction in competition. In this chapter, we discuss how the causation requirement flows through every stage of litigation, from the initial filing of the complaint, to motion for class certification and summary judgment, and then again at trial.
Causation and the complaint
The causation requirement begins at the beginning, with the filing of a complaint. Every plaintiff in the United States must show the ‘irreducible constitutional minimum’ of Article III standing. As part of this showing, a plaintiff must show ‘injury in fact’ that is ‘fairly traceable’ to the challenged conduct. An antitrust plaintiff must go even a step further to show ‘antitrust standing’, which typically requires that it plausibly allege an ‘antitrust injury’ and that it is an ‘efficient enforcer’ of the antitrust laws. Both requirements delve into causation: the connection between the alleged conduct and its effects.
The antitrust injury requirement
Antitrust injury is defined, somewhat circularly, as ‘injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants’ acts unlawful’. This requires that the plaintiff prove not only that it suffered an injury, but that the injury is of a particular type that would bring it under the ambit of the antitrust laws.
An anticompetitive merger, for example, can have multiple effects. It could harm consumers by consolidating power in the hands of two formerly competing firms, causing prices to rise. Consumers would clearly be injured, and that injury would be antitrust injury, as the antitrust laws are designed to prevent exactly that from happening. But that same merger could also result in deficiencies, such as allowing the two firms to consolidate their suppliers to negotiate bigger volume discounts. Assuming no monopsony concerns, the jilted vendors may have suffered an injury, but that is not an antitrust injury, as the injury flows from what is good about the merger, not what is bad.
In Aluminum Warehousing, for example, the Second Circuit took a nuanced approach to antitrust injury in two related cases, finding first that purchasers of ‘primary aluminum’ suffered antitrust injury from the defendants’ conspiracy to manipulate prices by traders of aluminum futures on the London Mercantile Exchange, but purchases of ‘fabricated aluminum’ – one step further downstream in the manufacturing process – did not. Notably, this case was not decided on remoteness grounds, but antitrust injury. In both cases, the plaintiffs claimed the financial firms with large positions in aluminium acquired control over warehousing facilities and conspired to limit aluminium outflows, thus restricting output and raising price. Both purchasers of primary (pre-fabricated) aluminium and primary aluminium sued.
In the first case, the fabricated aluminium purchasers argued that they suffered injury because the purpose of the scheme was to inflate the price of aluminium, increasing the value of the defendants’ aluminium futures. The court, however, held that purchasers did not participate in either the futures trading market (where the defendants’ realised their anticompetitive profits) or the warehousing market (which the defendants allegedly restrained in order to inflate prices in the trading market). As the court held, ‘[g]enerally, only those that are participants in the defendants’ market can be said to have suffered antitrust injury’ or, at the very least, ‘the putative plaintiff must be a participant in the very market that is directly restrained.’
Three years later, a different panel of the Second Circuit appeared to walk back the prior decision, this time reversing the dismissal of claims by purchasers of primary aluminium. In doing so, the court acknowledged that, as in the earlier case, the purchasers of primary aluminium also did not participate in the futures or warehouse markets and thus did not participate in the same markets as the defendants. But because they purchased primary aluminum, they suffered antitrust injury, since the purpose of the scheme was to inflate the price of primary aluminum to make the defendants’ trading positions more valuable. As the court explained, even though the defendants did not buy or sell primary aluminum, the ‘defendants allegedly restrained the market for purchase and sale of primary aluminum’ and that was the same market ‘in which the plaintiffs were injured’.
The efficient enforcer requirement
Even if a plaintiff can establish antitrust injury, it still has more to do to satisfy its pleading requirements. It must also show that it is an ‘efficient enforcer’. The antitrust laws do not give a remedy to all who can claim an injury – or even an ‘antitrust injury’ – from defendants’ unlawful conduct. Instead, the law concentrates the power to sue (and the spoils of victory) on those best positioned to vindicate the goals of the antitrust laws: the eradication of anticompetitive conduct. The tendency of the law, as the Supreme Court often reminds, is ‘not to go beyond the first step’. Courts have embraced that tendency and created two related ‘efficient enforcer’ rules, one a bright line prohibition on indirect purchaser claims and the other a case-by-case assessment of remoteness.
Under the Supreme Court’s seminal Illinois Brick decision, a plaintiff seeking damages who is within the same chain of distribution as the defendant must show that it is a direct purchaser from the defendant or in privity of contract with the defendant; ‘indirect purchasers may not sue.’
Illinois Brick involved claims against the Illinois Brick Company, which manufactured concrete blocks and sold them primarily to masonry contractors. Those contractors incorporated the blocks into structures that were then sold to general contractors, who in turn sold their construction services to ultimate consumers of the blocks. The State of Illinois was one such consumer and sued Illinois Brick for an alleged price-fixing conspiracy. But the Court ruled that the proper plaintiff to bring the claim would be an entity that had purchased directly from Illinois Brick. Thus, the Illinois Brick rule was born.
In 2019, the Supreme Court affirmed Illinois Brick in a case brought against Apple for monopolising the app development market through the iTunes Store. Apple moved to dismiss the complaint, arguing the plaintiff iPhone owners were direct purchasers of the app developers, who set the prices, not Apple, and were thus too far removed in the distribution chain to sue. However, the Court held remoteness was not a problem because ‘iPhone owners purchase apps directly from the retailer Apple’ and ‘pay the alleged overcharge directly to Apple’. ‘There is no intermediary in the distribution chain between Apple and the consumer,’ which the Court found ‘dispositive’. Thus, because there was privity between the consumers and Apple, consumers could sue, even though the app developers set the prices that consumers pay.
The majority opinion, penned by Justice Kavanaugh, elicited a strenuous dissent from Justice Gorsuch, who wrote that the majority ‘exalts form over substance’ and ‘displaces a sensible rule in favor of a senseless one’. To the dissent, Illinois Brick’s use of the phrase ‘direct purchasers’ was merely shorthand for the ‘traditional proximate cause question’ and that ‘those directly injured are always the best plaintiffs to bring suit’. The dissent argued, ‘[t]he notion that the causal chain must stop somewhere is an ancient and venerable one’.
While the majority did not go as far as the dissent would have liked in extending Illinois Brick, it came nowhere close to overruling Illinois Brick, though 30 states and the District of Columbia filed an amicus brief asking it to do just that. Indeed, the bright-line direct purchaser rule is arguably outdated given that over two-thirds of the states have passed Illinois Brick repealer statutes that allow consumers to bring indirect purchaser claims under their respective state laws.
Since Apple, courts have continued to whittle away at Illinois Brick. The Seventh Circuit, applying Apple, held that Illinois Brick did not bar a suit by providers against a medical device manufacturer, a group purchasing organisation, and distributors who conspired to increase the price of certain devices. The court observed that if the manufacturer had simply sold its products through an independent distributor, then Illinois Brick ‘would bar the provider from suing’ the manufacturer. But the web of contracts between the manufacturer, distributors and GPOs was far more complex. Even though plaintiffs did not purchase directly from the manufacturer, the court looked ‘to the first sale outside of the [alleged] conspiracy’, which was to plaintiffs. Otherwise, the court reasoned, a ‘contrary rule that looked behind the conspiracy to the role of each member played would render upstream antitrust violators effectively immune from suit through the simple expedient of conspiring with a middleman or distributor to pass on the inflated prices.’
Even if plaintiffs can get around Illinois Brick, each plaintiff – direct, indirect or otherwise – must show that its claims are not remote. As Areeda and Hovencamp note, ‘undue remoteness’ is particularly relevant to causation because ‘the intervening causes affecting the plaintiff become more numerous as the plaintiff is more remote from the violation’. Assessing remoteness requires an examination of the nature of plaintiffs’ injury and the causal chain between conduct and effect. Where causation is unusually complex, or where there are more directly injured victims, a plaintiff’s claims will often be deemed too remote, and standing will be denied in favour of more efficient enforcers.
In general, while ‘an antitrust violation need not be the sole cause of the alleged injuries’, a plaintiff ‘must establish, with a fair degree of certainty, that the violation was a material element of, and substantial factor in producing, the injury’. But the injury cannot be too remote from the antitrust violation.
In Associated General Contractors, for example, the Supreme Court dismissed an antitrust action in which carpenter unions alleged a conspiracy by a rival union and its members to restrain trade for construction subcontractors. The Court affirmed dismissal in part because the plaintiff union’s injuries ‘were only an indirect result’ of the alleged coercion of contractors. The plaintiff accused the defendants of coercing contracting parties to divert business from union to non-union contractors. But to trace the ‘chain of causation’ to the plaintiffs’ member carpenters was too full of ‘vaguely defined links’.
In contrast, the Supreme Court upheld a patient’s antitrust claim against her insurer for failure to cover treatment by a clinical psychologist where the insurer allegedly conspired with physicians to bar clinical psychologists from coverage. In that circumstance, the very means by which the alleged conspiracy was carried out – denying coverage for treatment by clinical psychologists – caused the plaintiff’s injury. The injury was not too remote because it ‘was inextricably intertwined with the injury the conspirators sought to inflict on psychologists and the psychotherapy market’ and thus ‘flow[ed] from that which makes defendants’ acts unlawful’. The Court rejected defendants’ argument that the plaintiff’s injuries were too remote because the plaintiff’s injuries were ‘clearly foreseeable’ as a result of the alleged conspiracy, and in fact ‘a necessary step in effecting the ends of the alleged illegal conspiracy’.
Remoteness is a fact-specific inquiry and can be implicated in a variety of circumstances. In competitor suits, plaintiffs often claim that they were the target of a boycott or a scheme to foreclose access to the market. This often arises in the context of new and innovative forms of competition that threaten more traditional ways of doing business. Particularly if the plaintiff is an actual or potential competitor of a defendant, remoteness may not present a significant obstacle. But if the plaintiff does not actually compete with the defendant but instead facilitates entry into the market by others, remoteness can be trickier. Remoteness concerns are also more likely where the plaintiff is not a customer of the defendant.
Causation and the class
Surviving a motion to dismiss, however, is just the first step in a plaintiff’s long road to recovery. Many antitrust cases are large, not because any one plaintiff’s claim is large, but because many smalls claims are consolidated into a single class action. A case can only proceed as a class, however, if the class plaintiffs can show that all class members were in fact injured, a requirement called ‘common impact’. This is often no easy task.
To establish common impact, the class plaintiffs must introduce evidence common to all class members that they each suffered measurable injury, without requiring each class member to testify at trial. In antitrust cases, this task is largely laid in the laps of expert economists. At its core, the ensuing ‘battle of the experts’ centres on how to prove causation in the class action context, and it often requires courts to evaluate the admissibility of experts’ testimony under the Federal Rules of Evidence and the Supreme Court’s governing Daubert decision. Under Daubert, courts are supposed act as ‘gatekeeper’. To get through the gate, the expert must be qualified, his or her work must be based on a reliable methodology and his or her opinions must have a solid foundation in the facts of the case. If the expert passes muster, then the court must consider that evidence along with the other record evidence to determine, under a preponderance of the evidence standard, whether class-wide injury can be fully adjudicated without the need for testimony from absent class members.
A plaintiff’s ability to prove common impact depends on the nature of the claims. At one end of the spectrum are direct-purchaser price-fixing claims where prices are fairly uniform and set formulaically based on a list price alleged to have been inflated by conspiracy. In that case, the plaintiffs’ experts typically follow a two-part analysis, called the Bogosian presumption, named after a 1977 Third Circuit case. Under Bogosian, the plaintiff must first prove that the defendants had a ‘rigid price structure’ in which prices were set formulaically, usually with respect to list price or another similar benchmark, and that the conspiracy targeted that reference price. Plaintiffs’ experts then conduct a quantitative study to show that average prices paid by class members were inflated, often using a regression that compares actual prices during the conspiracy period to prices outside the conspiracy period. Combining the two forms of proof – a rigid conspiratorially manipulated price structure with an average overcharge for the class – creates a presumption that injury can be proven on a class-wide basis.
The further the facts move away from this paradigm, however, the more difficult it becomes to prove common impact and class-wide causation. What happens, for example, when prices are individually negotiated? Without the ability to prove a rigid price structure, the Bogosian paradigm shows, at most, an average overcharge, not that all class members were injured. Some courts would allow such a claim; others would not.
Boycott claims involving competitive foreclosure are often even more problematic for would-be classes. There, plaintiffs’ expert must somehow analyse, not just what the effect on average prices would be if the rival were not excluded from the market, but also that the impact of such entry would affect all class members. In some industries, that may be particularly difficult. Perhaps the starkest example of this is in pharmaceutical markets, where plaintiffs allege that branded manufacturers blocked entry by generic competitors. However, it is an empirical fact – proved by study after study – that the introduction of a generic product often causes the branded product to paradoxically increase price, as it targets its sales efforts on brand-sensitive customers, leaving the rest of the market – often as much as 80 per cent – to switch to the cheaper generic. Under those facts, there is no common impact because consumers purchasing the brand at higher prices – 20 per cent or more of the market – will not be injured. It is a conundrum courts continue to grapple with.
Boycott cases generally can also pose a causation problem for classes. If the boycott was successful, the potential entrant never entered the market. There is no ‘before’ and ‘after’ period to use as benchmarks for an average overcharge, let alone common impact. Plaintiff economists therefore must get creative. One of the more recent trends in antitrust cases is to replace tried-and-true regression techniques with game-theory simulations. The use of simulations to prove causation has its genesis in merger cases, which are mirror images of boycott cases. In merger cases, the actual world is full of competition, while the but-for, post-merger world has one less competitor. In boycott cases, the opposite is true: the actual world lacks the competitive entrant and the but-for world is supposedly competitive. In merger cases, the Federal Trade Commission and the Department of Justice use simulations to model – from a theoretical perspective and without the need to prove an actual impact – the effects of increasing concentration in the market. In private boycott cases, plaintiff experts have started using similar simulations to model what would happen if there were additional competitors. Such models pose particular Daubert issues, however, as they are subject to subjective manipulation and fail to account for many actual market dynamics, such as lawful interdependent or oligopolistic behaviour.
Causation and summary judgment
Causation rears its head again when a case reaches summary judgment. A defendant is entitled to summary judgment if it can show that there is no genuine disputed issue of material fact with respect to an element of plaintiffs’ claim. Because causation by this point in a case is extremely fact-intensive – plaintiffs will focus on defendants’ conduct while defendants’ focus on plaintiffs’ own shortcomings – the resolution of causation often requires a trial. But in some cases, causation requires so many logical leaps and such speculation that summary judgment is appropriate. While a plaintiff need not show the antitrust violation was the ‘sole cause of the alleged injuries’, if the evidence of causation is weak and the defendant provides substantial evidence of ‘alternative explanation for the injuries which the plaintiffs allege’, causation may be a ripe issue for summary judgment. If not, the last stop on a plaintiff’s road to proof of causation is trial.
Causation at trial
Once a plaintiff raises an issue of material fact as to causation, the plaintiff must prove causation at trial. As with pretrial proceedings, they must prove causation with respect to injury-in-fact, antitrust injury, antitrust standing, and, if the plaintiff represents a class, common impact, raising all of the same factors discussed above but under a tougher preponderance of the evidence standard. Put simply, while plaintiffs are often given the benefit of the doubt before trial, a jury must be convinced on each of these issues at trial.
But once causation for purposes of liability is shown, ‘the plaintiff earns a more lenient standard of proof with regard to the amount of damages’ caused by defendants’ conduct. As the Supreme Court has stated:
Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate... [T]he risk of the uncertainty should be thrown upon the wrongdoer instead of upon the injured party.
1 Colin Kass is a partner and David Munkittrick is an associate at Proskauer Rose LLP.
2 Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391 (7th Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 594; William H Page, ‘The Scope of Liability for Antitrust Violations’ 37 Stan. L. Rev. 1445, 1453 (1985)).
3 Blue Shield of Va. v. McCready, 457 U.S. 465 (1982); see also Reading Indus., Inc. v. Kennecott Copper Corp., 631 F.2d 10, 12 (2d Cir. 1980) (quoting Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251 (1972)) (Antitrust law has long recognized that defendants who may have violated a provision of the antitrust statutes are not liable to every person who can persuade a jury that he suffered a loss in some manner that might conceivably be traced to the conduct of the defendants.’).
4 In re Aluminum Warehousing Antitrust Litig., 833 F.3d 151, 157 (2d Cir. 2016) (‘An antitrust plaintiff must show both constitutional standing and antitrust standing at the pleading stage.’).
5 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
7 In re Aluminum Warehousing Antitrust Litig., 833 F.3d at 157 (‘To satisfy the antitrust standing requirement, a private antitrust plaintiff must plausibly allege that (1) it suffered an antitrust injury and (2) it is an acceptable plaintiff to pursue the alleged antitrust violations.’).
8 Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977).
9 Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990) (emphasis added) (‘A private plaintiff may not recover damages under § 4 of the Clayton Act merely by showing “injury” . . . ‘).
10 In re Aluminum Warehousing Antitrust Litig., 833 F.3d at 158, 161.
11 Eastman Kodak Co. v. Henry Bath L.L.C., 936 F.3d 86 (2d Cir. 2019).
13 Cargill, Inc. v. Monfort of Colo., Inc., 479 U.S. 104, 110 n.5 (1986) (‘A showing of antitrust injury is necessary, but not always sufficient, to establish standing.’).
14 S. Pac. Co. v. Darnell-Taenzer Lumber Co., 245 U.S. 531, 533 (1918) (Holmes, J).
15 Apple Inc. v. Pepper, 139 S. Ct. 1514, 1519–1520 (2019) (emphasis added) (‘Our decision in Illinois Brick established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers.’).
16 Ill. Brick Co. v. Illinois, 431 U.S. 720 (1977).
17 Apple Inc., 139 S. Ct. at 1521 (2019).
18 id. at 1529–1530.
19 id. The Supreme Court has long incorporated common-law principles of proximate causation into the antitrust laws. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 533–34 (1983) (holding that an antitrust plaintiff’s right to sue required showing that the defendant’s violation not only was a ‘but for’ cause of his injury, but was the proximate cause as well, and tracing antitrust proximate cause decisions to before 1914).
20 Apple Inc., 139 S. Ct. at 1530.
21 Apple Inc., 139 S. Ct. at 1521 n.2.
22 Marion Healthcare, LLC v. Becton Dickinson & Co., 952 F.3d 832 (7th Cir. 2020).
23 id., at 840 (‘It is better to think of the right to sue co-conspirators not as an exception to Illinois Brick, but instead as a rule inhering in Illinois Brick that allocates the right to collect 100% of the damages to the first non-conspirator in the supply chain.’).
24 Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 132 (2014) (‘For centuries, it has been “a well established principle of [the common] law, that in all cases of loss, we are to attribute it to the proximate cause, and not to any remote cause”’) (quoting Waters v. Merchants’ Louisville Ins. Co., 11 Pet. 213, 223, 9 L.Ed. 691 (1837)).
25 Areeda & Hovencamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application Section 335c3 (3d and 4th ed.) (‘Tracing causation from the violation and measuring the injuries thus caused may become impracticably complex.’).
26 id. (‘The “remoteness” of one plaintiff typically implies the existence of a “superior” plaintiff who felt the impact of the antitrust violation more directly and would be in a better position to sue.’).
27 Greater Rockford Energy & Tech. Corp., 998 F.2d at 401 (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9; Tire Sales Corp. v. Cities Serv. Oil Co., 637 F.2d 467, 474–75 (7th Cir. 1980)); see also, e.g., Knutson v. Daily Review, Inc., 468 F. Supp. 226, 229 (N.D. Cal. 1979) (‘Defendant’s violation need not be the sole cause of the injury; however, it must be at least a substantial factor in bringing the injury about.’).
28 Associated Gen. Contractors, Inc., 459 U.S. at 540–541.
29 Blue Shield of Va., 457 U.S. at 484.
30 id. at 479.
31 See, e.g., Galope v. Deutsche Bank Natl Trust Co., 2015 U.S. Dist. LEXIS 33637, at *14–16 (C.D. Cal. 2015) (finding mortgagor’s decision to take out loan and later default too remote from bank’s alleged manipulation of LIBOR rates to establish standing where loan originated from different bank), aff’d, 666 F. App’x 671 (9th Cir. 2016).
32 Fed. R. Civ. P. 23.
33 Amorgianos v. Natl R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002).
34 Fed. R. Evid. 702.
35 See In re Air Cargo Shipping Servs. Antitrust Litig. (Air Cargo), 2014 WL 7882100, at *42 (E.D.N.Y. 2014) (‘Plaintiff’s “plausible” expert testimony, taken together with evidence of simultaneous price increase announcements, structural industry analysis, and plaintiff’s argument that increased price announcements bolstered defendants’ bargaining position was enough to show common impact.’); see also In re Modafinil Antitrust Litig., 837 F.3d 238, 262-66 (3d Cir. 2016) (direct purchasers adequately alleged common impact from agreements among drug manufacturers because all manufacturers prevented competitive market from forming, contributed to market-wide harm, and could be held jointly and severally liable).
36 Bogosian v. Gulf Oil Corp., 561 F.2d 434, 455 (3d Cir. 1977).
37 Still, some courts have cast doubt on the validity of the presumption. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 326 (3d Cir. 2008); In re Flonase Antitrust Litig., 284 F.R.D. 207, 222 (E.D. Pa. 2012) (‘[T]he continued existence of the Bogosian presumption appears uncertain.’).
38 See Food Lion LLC v. Dean Foods Co., 312 F.R.D. 472, 496 (E.D. Tenn. 2016) (‘Here, inquiry will be needed as to which members of the class had negotiated prices, the terms of their negotiated agreements . . . and the extent of their damages . . . . These damages issues would ultimately overwhelm the Court’s inquiry into questions common to the class.’); Exhaust Unlimited, Inc. v. Cintas Corp., 223 F.R.D. 506, 513 (S.D. Ill. 2004) (individual inquiry was ‘necessary’ because prices ‘may be individually negotiated and cover both the total invoice price and each component of that price’).
39 Greater Rockford Energy & Tech. Corp., 998 F.2d at 401–02; see also, e.g., Intimate Bookshop, Inc. v. Barnes & Noble, Inc., 2003 U.S. Dist. LEXIS 17231 at *17 (S.D.N.Y. 2003) (granting defendants’ motion for summary judgment; plaintiff’s expert reports and other proffers of evidence demonstrated that it ‘cannot show a causal link between its alleged injuries and defendants’ allegedly unlawful conduct’); Drug Mart Pharm. Corp. v. Am. Home Prods. Corp., 472 F. Supp. 2d 385, 430–31 (E.D.N.Y. 2007) (granting defendants’ motion for summary judgment on damages issue, because plaintiffs failed adequately to respond to defendants’ contention that factors other than alleged price discrimination accounted for their lost sales and profits).
40 Amerinet, Inc., 972 F.2d at 1493–94 (‘A treble-damage plaintiff is not required to prove exactly and with total certainty the amount of antitrust damages which it has sustained, if that plaintiff clearly demonstrates that the defendant’s antitrust violations caused its antitrust injury.’).
41 Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931).