This short piece takes a first step toward providing the empirical bases for an assessment of the benefits of private enforcement. It presents evidence showing that private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. Private enforcement helps compensate victimized consumers, and it also helps deter anticompetitive conduct. This piece demonstrates this by briefly summarizing a more detailed analysis of forty of the largest recent successful private antitrust cases.
To analyze these cases' compensation effects this presents, inter alia, the amount of money each action recovered, what proportion of the money was recovered from foreign entities, whether the private litigation was preceded by government action, the attorneys' fees awarded to plaintiffs' counsel, on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two). The $21.9 to $23.9 billion (in 2010 dollars) returned to victims helped compensate many victims of illegal behavior.
To analyze their deterrence effects, the article also briefly compares the amounts awarded in these 40 cases to the deterrence effects of every DOJ cartel case from the same period (including the deterrence effects of criminal fines and incarceration). This article shows that private enforcement of the U.S. antitrust laws - which usually is derided as essentially worthless - probably serves as a more important deterrent of anticompetitive behavior than the most esteemed antitrust program in the world, criminal enforcement by the Antitrust Division.
The debate over the value of private antitrust enforcement long has been heavy with self-serving but unproven assertions by powerful economic interests. This article should cause many in both the United States and in Europe to reevaluate their views as to the overall efficacy of private antitrust enforcement.
Introduction: Benefits of Private Enforcement: Empirical Background, in Private Enforcement of Antitrust Law in the United States: A Handbook, 3 (Albert A. Foer and Randy M. Stutz, eds., 2012)