Tuesday, January 27, 2015
Mark A. Lemley, Stanford Law School and Christopher R. Leslie, University of California, Irvine School of Law analyze Antitrust Arbitration and Illinois Brick.
ABSTRACT: For nearly forty years, since the Supreme Court decision in Illinois Brick, federal antitrust law has prevented indirect purchasers from complaining of overcharges caused by antitrust violations. The Court reasoned that direct purchasers are the best and most motivated antitrust plaintiffs. But in its 2013 Italian Colors decision, the Court made it extremely difficult for direct purchasers to bring an antitrust claim in federal court. In doing so, it undermined the policy rationale for Illinois Brick, opening the way for courts to reconsider the ban on antitrust enforcement by indirect purchasers.