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University of California, Hastings School of Law
Cohen, Marsha N.

I. Purpose of Antitrust Laws – competition.
A. Federal laws
1. In 1960s – big was bad, small business was primary concern.
2. Present – protection of the consumer, not competitors.
a. Efficient resource allocation – competition encourages business to innovate, keep costs and prices low, and allocate resources to their most productive use.
b. Consumer choice – a free competitive market tends to offer consumers a variety of cheap and quality products.
c. Avoidance of concentrated political power – competition tends to prevent any single person or group from acquiring dominant economic power, thus avoiding undue concentration of political power as well.
d. Fairness – competition encourages fairness to the extent that resources are allocated through market forces rather than on the basis of favoritism or prejudice.
B. European Union – protection of competitors. Focuses on conglomerate mergers and abuse of dominance, rather than concentration.

II. Enforcement mechanisms
A. Federal
1. Antitrust division of DOJ – enforces Sherman Act and Clayton Act, criminal and civil jx.
2. FTC – enforces Clayton Act, issues cease and desist orders for violations of Sherman Act, civil jx only, no treble damages.
B. State – attorney general.
C. Private

III. Private Actions
A. Jurisdiction, venue, and service
B. Statute of limitations
1. Criminal cases – 5 yrs
2. Private claims – 4 yrs from commission of unlawful conduct. Some circuits say SOL does not run until the harm is complete. Tolling…
a. Fraudulent concealment – SOL begins to run when fraud is discovered or should have been discovered. Suspecting a conspiracy does not create awareness.
b. During criminal or civil proceeding by govt. – claim is not barred until one year after resolution of govt. case and all its appeals.
C. Interstate and foreign commerce requirement – unlawful conduct involves transactions…
1. In the flow of interstate or foreign commerce – where goods are in interstate commerce, as little as one sale across state lines suffices.
2. Or that substantially affect interstate or foreign commerce – aggregate effects when activity is commercial.
Summit Health: boycott of one dr. affects ophthalmological services in LA market, which has substantial affect on interstate commerce.

D. Direct purchaser requirement – only direct purchasers can seek damages.
Hanover Shoe: defendants may not use a pass on defense against a direct purchaser who passed on inflated costs to others.
Illinois Brick: indirect purchasers can’t bring suit bcs it would substantially complicate the damages phase of antitrust trials and redu

ay challenge policy of not reimbursing for psychotherapy bcs the denial of her claim was pursuant to the agreement. Harm to beneficiary was natural consequence of conspiracy, even though she was not the intended victim of the conspiracy.
Assoc. Gen. Contractors: assoc. of eors agreed to coerce third parties not to hire union contractors. Here, contractors are the ones who suffered injury; union injury is derivative and more remote.
2. Nature of alleged injury – did Congress intend to prevent this harm?
3. Better alternative litigant – w/ a more direct claim and an incentive to litigate.
McCready: an ins. plan is for the benefit of the beneficiary, even if the technical consumer is the purchasing eor.
Assoc. Gen. Contractors: union contractors, not unions, should bring claim.
4. Speculative damages
Assoc. Gen. Contractors: harm to union is speculative bcs no evidence that bargaining agreements were terminated due to alleged violation.
5. Danger of duplicative recovery
6. Administrative convenience – such as complex apportionment of damages.