United States Competition Litigation

1. What types of conduct and causes of action can be relied upon as the basis of a competition damages claim?

Under Section 4 of the Clayton Act, “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue.” To recover, one must not only establish an antitrust violation (see below), but also show (1) injury-in-fact (that there was an injury), (2) that the injury was caused by the conduct alleged to violate the antitrust laws (1 and 2 are often lumped together as “causation” but are distinct factual issues), (3) injury of the type the antitrust laws are intended to prevent (“antitrust injury”), and (4) antitrust standing (that the entity asserting the claim is the immediate person impacted, so that the claimed injury is not “remote”). A large range of conduct by a company acting alone or with others may be found to violate the antitrust laws and can be relied on as the basis for a competition damages claim. 

Under Section 1 of the Sherman Act, “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce . . . is declared to be illegal.” Despite that broad language, only those restraints that “unreasonably” restrict competition violate Section 1. Violations of Section 1 require one to establish (1) a contract, combination, or conspiracy among two or more separate entities (i.e., excluding corporate affiliates) that (2) “unreasonably” restrains trade, and (3) that the conduct affects (is “in”) interstate or foreign commerce.