The Antitrust Review of the Americas 2009

Private Recovery Actions in the United States: Reducing - and Recouping - the 'Cartel Tax'

The Antitrust Group at Cohen Milstein Sellers and Toll PLLC

01 January 1900

In the United States, private antitrust litigation serves two vital needs that cannot be adequately addressed through government enforcement alone - increased (though still sub-optimal) deterrence for anti-competitive activity and direct recovery to injured consumers. While detractors of the American system argue that the prevalence of private suits effectively forces US businesses to pay a "litigation tax",1 there is in fact a growing consensus that private enforcement of antitrust laws, both within the US and abroad, is necessary to reduce and partially recoup what might be called the 'cartel tax' - the higher costs and inefficiencies unlawfully imposed on society by colluding cartelists. This article summarises the policy behind providing meaningful private rights of legal redress in the competition field for the primary victims of cartels. It will also describe the types of suits brought in the US to enforce those rights, the obstacles to maintaining such cases and the outlook for increased private enforcement of those rights in the US and abroad.

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