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Private Treble Damage Actions Under Federal Antitrust Law

Under federal antitrust law, persons and companies harmed by anticompetitive conduct may seek an award of triple their damages, an injunction, and costs of the action (including attorney fees) against a party that violates federal antitrust laws. For example, price fixing or an agreement among competitors on the price they will charge is considered a per se illegal violation of Section 1 of the Sherman Act, 15 U.S.C.S. § 1, that the government may prosecute as a felony. As a further deterrent to such activity, those harmed by the violation may seek treble damages and an injunction.

Section 4 of the Clayton Act, 15 U.S.C.S. § 15, provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue” for treble damages, prejudgment interest, and costs of suit, including attorney fees. State and local governments are considered “persons” permitted to sue under Section 4 for treble damages. Foreign states that do not assert their own antitrust immunity also may sue but for single damages only.

The phrase “injured in his business or property” is interpreted broadly by the courts to include, for example, the loss of money paid as an overcharge on a product with a price fixed by competitors. However, some concrete business or property rather than a broad notion of a state’s “economy” must be injured.

The statute in other respects is interpreted narrowly. The injury that must be shown by a person seeking treble damages is what the courts have termed an “antitrust injury” or an injury related to what harms rather than increases competition. For example, while a company may show injury to it as a result of a merger between two of its competitors, the company may not be entitled to treble damages if, despite the injury to the plaintiff’s business and despite the merger being considered illegal under the antitrust laws, the injury resulted from pro-competitive effects of the merger. In other words, even though the company was harmed, there will be no antitrust recovery if the violation benefited competition in a broader sense. Even if defendant’s conduct is per se illegal, as for example in fixing resale prices, a plaintiff may not recover unless it can be shown that the injury resulted from the anticompetitive effects of the violation of law.


The courts also have concluded in more recent antitrust cases that even if an “antitrust” injury is shown by a person seeking treble damages, further requirements for standing must be met. There is no set test for such standing. Rather, various factors are examined to determine if the person was targeted by the antitrust violation and that the injury to that person’s business or property was the type of injury that the antitrust laws were intended to prevent. Generally, the more directly the person was targeted by the antitrust violation, the more likely the courts are to grant that the person has standing to maintain the action for treble damages.

Regarding the amount of damages to award, the courts require clear proof that the person bringing suit was damaged. Once it is proved that damage occurred, the courts will be more expansive in considering the amount of such damage based on the concept that amounts of antitrust damages are difficult to prove and the defendant should not be relieved from the obligation to pay such damages due to difficulty in proving the actual amount.

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