Wednesday, December 11, 2019
Andy Gavil, Howard asks Consumer Welfare Without Consumers? Illinois Brick after Apple V. Pepper.
ABSTRACT: For forty years U.S. antitrust law has lived with an anomaly of the Supreme Court’s making: having declared its commitment to interpreting those laws as a “consumer welfare prescription,” the Court in Illinois Brick nonetheless effectively barred consumers from suing for damages by limiting the right to sue to direct purchasers. Although the Court appeared poised to further extend Illinois Brick in Apple v. Pepper, it instead turned away from Illinois Brick's emphasis on deterrence to once again consider the role that compensation plays in private damage actions. In doing so, it has invited reconsideration of questions deemed long-settled under Illinois Brick about how U.S. law understands "antitrust injury" and how it strikes the balance between the goals of deterrence and compensation.