US Private Enforcement

The number of US antitrust case filings has steeply and rapidly declined over the last 18 months, marking a dramatic 'recession' following the boom years of private antitrust litigation from 2006-08. In fact, the number of cases filed year-to-date in 2010 is on pace for the lowest total in the past two decades as both class actions and individual plaintiff cases are substantially off highs.

To some extent the decline has paralleled broader economic trends and may reflect continued financial and economic turmoil in the United States. It is also possible that the downturn is the result of Supreme Court jurisprudence of the last few years, and in particular the clarification (and some would say heightening) of pleading standards that occurred in Twombly. We are not sure, however, that either of these is a material cause of the decline, although both have likely contributed. It seems more likely that the 2006 to 2008 boom years were anomalies and that the decline in case filings over the last year and a half is simply a return to more ordinary levels of antitrust litigation.

2010 decrease in both class and individual antitrust actions

2006 to 2008 marked the first time in decades that private plaintiffs filed more than 1,000 antitrust cases in three consecutive years. Private plaintiffs filed 1,050 federal antitrust cases in 2006 and 1,028 in 2007, and reached a height of 1,239 in 2008.1This level of filings marked a significant increase on the filings from 1990 to 2005, which averaged fewer than 750 cases per year. In 2009, however, the number of federal court antitrust lawsuits decreased nearly 40 per cent to 770. In 2010 the number of private antitrust filings in the United States continued to decline dramatically, with only 264 private antitrust suits filed in the first half of 2010. If that pace continues - and we expect it to - that would mark a further 30 per cent decline from 2009 to 2010, and would mean that case filings are down nearly 60 per cent from 2008 highs.

As our colleagues highlighted in these pages last year, much of the growth in private antitrust litigation from 2006 to 2008 stemmed from the increase of duplicative class action suits.2The number of antitrust class actions filed from 1999 to 2008 climbed from 208 in 1999 to 765 in 2008, with an average of just under 410. The growth in class actions during this period represented an increase, by more than three-and-a-half times, in federal antitrust class-action filings and accounted for most of the growth in antitrust filings during this period. But many of these cases were the same. That is, a single price-fixing investigation by the Justice Department prompted dozens of copycat complaints, essentially alleging the same claims against the same defendants brought of behalf of the same nationwide class. As such, 67 multidistrict litigation (MDL) antitrust cases were pending as of 30 September 2008, or closed since 1 October 2007.3Each of those proceedings covered anywhere from three to 135 distinct filings, with an average of just over 33. As a result a large percentage of the increase in antitrust filings was due to duplicative pleadings.

This trend was most apparent from the beginning of 2005 through the first half of 2008. For the period from 1999 to 2005, the number of antitrust class-action filings ranged from a low of 197 in 2003 to a high of 405 in 2000, averaging just over 290 per year. In contrast, from 2006 to 2008 the number of filings grew to 600 in 2006, 669 in 2007 and 765 in 2008, averaging almost 680 per year. The growth of duplicative antitrust class action filings from 2006 to 2008 seems largely to have resulted from the class process itself. First, the potential economic rewards associated with being selected as lead counsel in a multidistrict antitrust class action are large. For example, attorneys' fees and costs in multidistrict antitrust litigations since 1990 averaged roughly US$60 million.4In this context, lead counsel (which could expect to earn a larger share of this money) was often selected based upon the number of cases they filed and how quickly they filed them. Thus, the same lawyers had a large economic incentive to file multiple, entirely duplicative cases on behalf of differently named plaintiffs each seeking to represent the same class. Additionally, the growth of antitrust class actions was supported by the inclusion of indirect purchaser claims under state law in federal antitrust class actions. Prior to 2005 indirect purchasers were barred by Illinois Brick from asserting claims under federal law.5However, these indirect purchasers responded, after the passing of the Class Action Fairness Act (CAFA) in 2005, by alleging separate claims on behalf of multiple state classes and taking advantage of CAFA's minimum diversity requirements. At least 31 of the classes filed over the past three years have involved indirect purchaser claims under CAFA in part counting for the increase in antitrust class filings.6

After this period of rapid growth, the number of antitrust class actions filed has dramatically declined. In 2008, for instance, the vast majority of class-action filings came in the first half of the year (542), dropping dramatically in the second half of the year (223). This decline continued in 2009, with just 375 class action cases filed, and in 2010 with only 109 class suits filed as of 1 July 2010

Individual antitrust actions have also declined in 2010. The period from 1999 to 2009 remained relatively stable, with 425 such cases filed in 1999 and 395 filed in 2009, and an average of just over 420. In the first half of 2010, however, only 155 individual private antitrust suits were filed, creating a projection of 310 such cases filed for the total year. If trends hold, the number of individual antitrust suits filed this year would mark a new low in the number of individual antitrust suits filed in the past 20 years, and would constitute a decrease of more than 20 per cent year-on-year.

Possible causes of the decline

The dramatic decrease in antitrust filings begs the question of whether the current decrease in the number of private antitrust suits filed is endemic to the effects of the current financial crisis, thus indicative of a substantive change in the antitrust laws, or the result of other factors.

The effects of Supreme Court jurisprudence

One possible explanation for the decrease in antitrust filings is changes in the substantive law. Supreme Court jurisprudence has continued to narrow the ambit of private antitrust actions, making it more difficult for an antitrust plaintiff to prevail in a cause of action. In fact, until May of this year7the Supreme Court had rendered decisions favourable for the defence in each private antitrust suit it considered since 1992.8The overall effect of Supreme Court jurisprudence has been to narrow the grounds under which antitrust relief can be granted in a number of different ways.

In certain instances the Supreme Court has limited the application of the antitrust laws. Thus, the Supreme Court in Empagran made clear that the subject matter jurisdiction of US courts was limited under the Foreign Trade Antitrust Improvements Act of 1982 and principles of comity to conduct which directly, substantially and foreseeably affected US commerce and which 'gave rise to' plaintiff's cause of action.9Accordingly, US courts did not have jurisdiction over claims brought by foreign nationals who paid too much abroad as a result of an international price-fixing conspiracy.10In Credit Suisse, the Supreme Court confronted a defence of pre-emption that cuts across all types of antitrust claims, although it will likely only apply in narrow factual circumstances. As in its other decisions, the court made it more difficult for plaintiffs to press claims under certain circumstances where the conduct allegedly at issue is already subject to regulatory oversight. Specifically, the court held that US securities law precludes the class plaintiffs' antitrust claims against the commission structure of underwriting firms.11Even though securities law was silent as to whether antitrust suits were permitted against practices in the securities industry, the court found securities law and antitrust law to be 'clearly incompatible.'12The court reasoned that the US Securities and Exchange Commission (SEC) had 'full regulatory authority' over the practices in question and found that antitrust law would prohibit several types of conduct - for example, tying and market allocation - that the SEC expressly permits.13

The court has also limited the number of plaintiff theories under which antitrust relief might be granted. In Weyerhaeuser, the Supreme Court held that a rule of reason approach should apply to buying practices, finding monopsony and monopoly power to be 'analytically similar.'14The court reasoned that, like predatory pricing, predatory bidding schemes 'are rarely tried, and even more rarely successful' and failed schemes 'can be a boon to consumers' by resulting in lower prices.15The court was equally concerned with 'chilling legitimate pro-competitive conduct', and thus held that the cost-screen applied to predatory pricing should also be applied to predatory bidding.16Similarly, in Leegin, the Supreme Court confronted vertical resale price maintenance under section 1 of the Sherman Act; that is, a manufacturer's ability to determine the price at which its customers resell its products. The court reversed a 96-year-old legal rule that deemed vertical resale price maintenance per se illegal.17

The court in Linkline determined that a price-squeeze theory was not viable under the antitrust laws because it threatened to chill the very thing antitrust law is designed to encourage - low prices for consumers. Firms might instead raise their retail prices or refrain from aggressive price competition to avoid potential antitrust liability. At the same time, the majority doubted the courts' institutional capacity to reasonably administer a price-squeeze regime, which could ultimately require courts to decide what constitutes reasonable wholesale and retail prices in particular markets. Finally, in Volvo v Reeder the Supreme Court announced that the Robinson-Patman Price Discrimination Act primarily addresses price discrimination by large manufacturers on products sold by retailers in direct competition with each other. The Act did not create liability for manufacturers offering varying discounts to retailers not directly in competition with one another to sell specially ordered goods.18

Recently commentators have focused on the effects of pleading standards elaborated in Bell Atlantic Co v Twombly and illuminated in Iqbal v Ashcroft to explain the decrease of private antitrust filings. In Twombly the Supreme Court considered what constitutes a sufficient pleading under section 1 of the Sherman Act to allege a conspiracy. In the case, the Supreme Court overturned a notice pleading rule enshrined in Conley v Gibson and clarified an initial pleading standard that required factual allegations, and not simply conclusions, for each element of an antitrust claim. The court focused in particular upon the "contract, combination or conspiracy" element of Sherman Act section 1.19Specifically, the Supreme Court held 'without more, parallel conduct does not suggest conspiracy....[W]hen allegations of parallel conduct are set out in order to make a [Sherman Act] section 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement.'20Mere parallel conduct, the court observed, 'does not suggest conspiracy,'21but may instead be the product of a 'rational and competitive business strategy unilaterally prompted by common perceptions of the market' by firms acting independently.22Recognising that a plaintiff must ultimately prove the existence of an antitrust conspiracy with evidence that 'tend[s] to rule out the possibility that the defendants were acting independently,'23the court held that a complaint must contain 'enough factual matter (taken as true) to suggest that an agreement was made.'24

Reaffirming and clarifying that Twombly applied to simply antitrust claims, the Supreme Court decided Iqbal in July of last year.25In Iqbal, the court held that '[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, taken as true, to 'state a claim for relief that is plausible on its face.''26Citing Twombly, the court stated: 'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.'27

The exact consequence of Twombly and Iqbal for antitrust pleading has been far from clear, however. Although some commentators in Twombly annunciated a higher pleading requirement that has slowed the rush to the courthouse and has been a chief instigator limiting the number of antitrust suits filed by plaintiff's counsel, the hard evidence is unclear, at best. Yet, the overall thrust of Supreme Court jurisprudence for the past two decades has been to whittle away at the substance of the antitrust laws, thereby limiting the grounds on which a plaintiff might obtain relief and limiting the potential claims that might be brought in federal courts and still no clear decrease of antitrust filings has occured.

Aversion to financial risk in the current economic climate

Perhaps the most simplistic explanation of the decrease in antitrust cases relates to the economic downturn. Often antitrust litigation is very expensive and can cost millions of dollars in legal and administrative fees. In the wake of the recent economic and financial turmoil, potential corporate antitrust plaintiffs are often operating with diminished litigation budgets that constrain their ability to pursue antitrust litigation. Similarly, plaintiff law firms may be unwilling to burden the financial risk associated with bringing a private class action on a contingency basis. In the present economic environment the costs of such litigation may outweigh the potential benefits for many firms. Given that a class action typically takes five years to resolve and the firm may not have a significant probability of a positive return on investment for several years, potential plaintiffs may not be willing to invest scarce capital when confronting other pressing needs such as paying a workforce. One may speculate that at least some plaintiffs' attorneys will hold off on bringing marginal class actions during tough economic times, as a result. Furthermore, some plaintiffs' firms that take cases on contingency depend on loans from litigation finance companies or banks to cover the costs of litigation. These loans now come with a hefty fee or interest rate due to the inherent risk involved in a contingency case.28Given the shrinking availability of credit during this economic downturn and the lack of willingness of financial institutions to increase their risk exposure, it follows that access to litigation financing may be dwindling. If a significant number of plaintiffs' firms are abstaining from the pursuit of class action opportunities due to a lack of financing, it would not be surprising to see antitrust filings move in tandem with the economic recovery and the concomitant increased access to credit.

However, the suggestion that the economic crisis is solely responsible for the downturn of private antitrust litigation seems undermined by wider litigation trends in 2010. Anecdotal evidence from the first quarter of 2010 suggests that litigation was up in the United States.29In fact, the number of US lawsuits that brought in other forms of litigation, such as securities and product liability, has remained remarkably stable throughout the financial crisis.30As such, it seems unlikely that the financial crisis can fully explain the current downturn in the number of antitrust suits.

What's on the horizon?

Although the exact causes in the dip of antitrust filings are ambiguous, there are two trends that lend credence to the suggestion that there may be a slight increase in the number of antitrust cases during the second half of 2010. First, there is a growing consensus within the courts as to the pleading threshold required by Twombly to allege a conspiracy. Second, government focus on antitrust issues in key sectors, such as agriculture, may inspire follow-on private litigation.

Growing consensus over Twombly

Although the application of Twombly pleading thresholds varies somewhat from circuit to circuit, a growing consensus seems to be emerging around what Twombly requires for an antitrust suit to be properly pleaded. Specifically, courts are dismissing allegations that simply contain conclusory or boilerplate allegations and are insisting on some level of factual support for each element of an antitrust claim. They are not requiring plaintiffs to plead intricate factual details of who, what, when and where conspiracy meetings occurred, for example, but they are requiring something more than 'mere labels and conclusions.'31

In Starr v Sony BMG Music Entertainment, for instance, the Second Circuit considered whether an alleged conspiracy by major record labels to fix the prices and terms under which their music would be sold over the internet was sufficiently pleaded under Twombly.32The complaint lacked any factual allegations of an actual agreement and instead alleged that the defendants had engaged in a conspiracy as suggested by parallel price increases for music sold over the internet, despite the fact that their direct costs for such services had substantially gone down.33

The District Court found that there was not enough actual matter to render the claim plausible. The Second Circuit disagreed with the district court and reinstated the section 1 claim. The court held that the complaint contained enough factual matter for an agreement to be plausible.34It concluded that the complaint contained allegations of parallel conduct as well as additional facts required under Twombly, thus making an inference of agreement plausible. Specifically, the court cited the following conduct as evidence of an agreement to fix non-competitive prices and terms:

• the joint ventures charged unreasonably high prices and required consumers to agree to unpopular digital-rights management terms;

• the defendants raised the price for internet music when the costs of providing the music dramatically decreased;

• the members of the joint ventures used most-favoured-nation clauses to ensure that no member received terms less favourable than another member; and

• all defendants refused to do business with eMusic, the second most popular internet music retailer.35

Similarly, on 1 July 2010 the District Court for Eastern Michigan held in In re Packaged Ice Antitrust Litigation that a putative class action complaint alleging conspiracy in the packaged ice industry was sufficient to withstand a Twombly motion.36In the case, a private class action was filed following a Department of Justice criminal investigation and guilty plea to a price-fixing conspiracy. According to the court, a plaintiff is not required to allege a specific time, place or person involved in the conspiracy. Rather, citing Twombly, the court held that pleading an antitrust case did not require heightened fact pleading of specifics, but did require enough facts to state a claim to relief that is plausible on its face.37

Increased government focus on antitrust issues in the agricultural segments

Government investigations in certain sectors, such as agriculture, may also spark an increase in private litigation. The Obama administration has articulated a set of priorities for its enforcement of the antitrust laws, and agriculture ranks high on the list. Christine Varney, in a statement to the Senate Judiciary Committee, made clear that '[c]ompetition issues affecting agriculture have been a priority for me since I was confirmed [this] spring as Assistant Attorney General for the Antitrust Division.'38At the start of the year the Department of Justice and the Department of Agriculture announced a workshop studying the agricultural sector and the appropriate role for antitrust and regulatory enforcement in that industry.39Farmer cooperatives figure prominently in the DoJ's promise to focus on US agriculture.

Currently in the US cooperative agricultural groups operate under the Capper-Volstead Act.40The Capper-Volstead Act empowers farmers by permitting them to cooperate with each other under the protection of and immunity from the antitrust laws. The question for the government is not only whether Capper-Volstead should be rolled back to remove some of the protections provided to cooperatives but also whether some types of conduct, such as price-fixing and supply control agreements, are covered under the Act.41

Government regulation in the agricultural sector has already begun to increase this year. On 22 January 2010, the Department of Justice and state attorney generals from Illinois, Michigan and Wisconsin brought similar antitrust charges challenging Dean Foods' acquisition of two milk processing plants, alleging that the purchase undermined competition and left the school districts in the states with a monopoly milk provider.42Additionally, the Department of Justice initiated an investigation of executives in the tomato industry leading to indictment for price fixing and bid rigging in violation of section 1 of the Sherman Act.43

The potential for a ramping of regulatory work by the government in the agriculture sector would likely inspire follow-on private litigation. In fact, some private litigants have preceded the government litigation by bringing class actions alleging antitrust violations. For instance, class actions have been brought in Tennessee and Vermont against Dean Milk and the Dairy Farmers of America, alleging that they had sought to eliminate independent farmers from competition in the US by limiting independent farmers' access to bottling plants and by employing its monopsony power to fix the price cooperatives paid for milk from farmers.44On 25 June 2010 a similar class action was brought against United Potato Growers of America and 23 other entities alleging that potato growers had fixed prices for the sale of potatoes.45Although the plaintiff's law firm recognised that the Capper-Volstead Act 'allows producers to get together, form cooperatives and jointly market their product,' these entities 'stretched it to the absurd and essentially tried to form a cooperative of the entire industry, and then tried to get the entire industry to reduce supplies to raise prices.'46A class action is pending against egg processors in the United States, which alleges an industry-wide supply restriction scheme to fix prices of egg and egg products sold in the United States during an eight-year period.47

Although a number of these private suits precede 2010, a growing focus on the agriculture sector by the government makes private antitrust litigation in the sector more likely. This trend is set only to increase, and may provide a spark for private antitrust litigation.

Notes

1
. Unless otherwise noted, all data referenced in this article are sourced from CourtLink (www.courtlink.com). We conducted searches for all civil antitrust cases filed in US district courts and for all class-action antitrust cases filed in US district courts for each six-month period from 1 January 1999 to 30 June 2010 and then manually subtracted all civil government cases. We also conducted searches for all civil antitrust cases filed in US district courts for each calendar year from 1990 to 1998. All data are on file with the authors.

2
. See eg Thomas Dillickrath et al, 'Trends in Private Federal Antitrust Litigation: Class Actions Driving Growth, but Supreme Court Makes it Harder for Private Litigants to Prevail', Antitrust Review of the Americas 2009, Global Competition Review, September 2009, available: www.globalcompetitionreview.com/reviews/20/sections/73/chapters/793/private-enforcement/.

3
. Id.<

4
. Id. The average antitrust MDL settlement is approximately US$300 million; a contingency fee of 20 per cent is presumed to calculate the US$60 million figure.

5
. Illinois Brick v Illinois, 43 US 720 (1977).

6
. Donald Hawthorne, Recent Trends in Federal Antitrust Class Actions, 24 Antitrust 3 (Summer 2010), p. 59.

7
. American Needle, Inc. v Nat'l Football League, et al, 2010 US LEXIS 4166 (US, 24 May 2010). The Supreme Court held that joint intellectual property licensing by teams associated with a professional sports league were covered by the antitrust laws. Although practically a decision for the plaintiffs, the court found that joint actions by joint ventures should be analysed under a rule of reason approach.

8
. Pacific Bell Telephone Co v LinkLine Communications Inc, 129 S. Ct. 1109 (2009); Credit Suisse Securities v Billing, 127 S. Ct. 2383 (2007); Credit Suisse Securities v Billing, 127 S. Ct. 2383 (2007); Bell Atlantic v Twombly, 127 S. Ct. 1955 (2007); Weyerhaeuser Co v Ross-Simmons Hardwood Lumber, 127 S. Ct. 1069 (2007); Leegin Creative Leather Products v PSKS, Inc, 126 S. Ct. 2705 (2007); Illinois Tool Works Inc v Independent Ink, Inc, 547 US 28 (2006); Texaco, Inc v Dagher, 547 US 1 (2006); Volvo Trucks North America, Inc v Reeder Simco GMC, Inc, 546 US 164 (2006);

F Hoffmann-La Roche Ltd v Empagran SA, 542 US 155 (2004); United States Postal Service v Flamingo Indus. (USA.) Ltd., 540 US 736 (2004); Verizon Communications v Law Offices of Curtis V Trinko, 540 US 398 (2004); California Dental Ass'n v FTC, 526 US 756 (1999); NYNEX Corp v Discon, Inc. 525 US 128 (1998); State Oil Co v Khan, 522 US 3 (1997); Brown v Pro Football, Inc, 518 US 231 (1996); and Brooke Group Ltd. v Brown & Williamson Tobacco Corp, 113 S. Ct. 2578 (1993)./dd>

9
. Empagran, 542 US 155.

10
. Id.

11
. Credit Suisse, 127 S. Ct at 2389-97.

12
. Id. at 2394.

13
. Id. at 2393-95.

14
. Weyerhaeuser, 127 S. Ct at 1077-78,<

15
. Id.

16
. Id. at 1078.

17
. Leegin, 127 S. Ct, at 2721-25.

18
. Volvo v Reeder, 546 US 164

19
. 355 US 41 (1957).

20
. Twombly, 127 S. Ct. at 1966.

21
. Id., at 1966.

22
. Id., at 1964.

23
. Id. (citing Matsushita, 475 US 574, 588 (1986)).

24
. Id. at 1965.

25
. Iqbal v Ashcroft, 129 S. Ct. 1937 (2009).

26
. Id., at 1949.

27
. Id.

28
. Douglas R Richmond, 'Other People's Money: The Ethics of Litigation Funding', 56 Mercer L Rev 649, 650-51 (2005); Susan Lorde Martin, 'The Litigation Finance Industry: The Wild West of Finance Should Be Tamed Not Outlawed', 10 Fordham J Corp & Fin 55, 72 (2004); Courtney R Barksdale, 'Note, All That Glitters Isn't Gold: Analysing the Costs and Benefits of Litigation Finance', 26 Rev. Litig. 707, 708-09 (2007).

29
. Robert Ambrogi, 2010 Q1 Litigation Report, (13 May 2010), available: www.americanchronicle.com/articles/view/155635.

30
. From 2005 to 2009; 1821, 1484, 1457, 1448 security complaints were filed in federal court. From 2005 to 2009; 219, 254, 254, 201 and 243 cases were filed in federal court. The number of cases filed from the beginning of the year until 1 July 2010 have been fully consistent with these earlier years: 745 securities actions filed and 181 product liability cases.

31
. Twombly, 127 S. Ct. at 1966.

32
. 592 F.3d 314 (2nd Cir. 2010).

33
. Id., at 320.

34
. Id.

35
. Id., at 20 – 23.

36
. Case No. 08-MD-01952, slip op. (ED Mich. 1 July 2010).

37
. Id., at 18.

38
. Crisis on the Farm: The State of Competition and Prospects for Sustainability in the Ne. Dairy Indus. Before the Comm. on the Judiciary, 111th Cong. (2009) (statement of Assistant Attorney Gen. Christine Varney), available at http://judiciary.senaate.gov/hearings/testimony.cfm?id=4055&wit_id=8200.

39
. US Department of Justice and Department of Agriculture, Agriculture and Antitrust Enforcement Issues in Our 21st Century Economy, available: www.justice.gov/atr/public/workshops/ag2010/index.htm#publiccomments

40
. 7 USC. § 291-92.

41
. Christopher E Ondeck and Kathleen Clair, Justice Department and Private Plaintiffs Take Aim at Capper-Volstead Protection for Agriculture, 97 ATRR 512 (November 6, 2009).

42
. Department of Justice, Justice Department Files Antitrust Lawsuit Against Dean Foods Company, (22 January 2010) available: www.justice.gov/atr/public/press_releases/2010/254435.htm.

43
. Department of Justice, SK Foods LP Former Owner and CEO, Frederick Scott Salyer, Indicted on Additional Charges (29 April 2010), available: www.justice.gov/atr/public/press_releases/2010/258324.htm

44
. In re Southeastern Milk Antitrust Litigation, C.A 2:08-md-1000 and MDL No. 1899 (ED Tenn.). Peter Hirshfield, Dairy Farmers Sue Dean Foods, 10 October 2009, available: http://sanders.senate.gov/newsroom/news/?id=8f6da8d9-cfc5-4099-8773-4d8506323bd6

45. In re Fresh and Process Potatoes Antitrust Litigation, MDL 2186.

45
. In re Fresh and Process Potatoes Antitrust Litigation, MDL 2186.

46
. Rand Green, Lawsuit accuse Idaho and US potato cooperatives of price fixing, 30 June 2010, available: www.producenews.com/StoryNews.cfm?ID=9863

47
. In re Processed Egg Products Antitrust Litigation (Indirect Purchaser Action), CA 08-md-02002 and MDL No. 2002 (ED Pa.).

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