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New study defends private antitrust lawsuits

Detractors of these suits “have never presented systemic evidence” of the cases’ flaws, say the paper’s authors

It’s hard out there for an antitrust plaintiffs lawyer, as a fear of meritless private antitrust suits has caused some courts to raise the procedural barriers for presenting those cases to juries. But these lawsuits may be actually more effective—and less frivolous—than many believe, according to a new academic paper released this month.

An examination of 60 large private antitrust class actions showed that 88 percent had at least one indicator that the plaintiffs’ case had merit, according to University of Baltimore School of Law Professor Robert Lande and University of San Francisco School of Law Professor Joshua Davis, authors of “Defying Conventional Wisdom: The Case for Private Antitrust Enforcement.”

The professors also note that more than half of the cases resulted in settlements of more than $100 million, while only a few cases recovered less than $50 million. “Only the meaningful prospect of losing litigation—including after exhausting the appellate process—could explain settlements for such large amounts,” the paper contends.

Furthermore, 28 percent of the cases studied involved defendants or their employees who were subject to criminal penalties, Lande and Davis say, suggesting that the antitrust suits did have merit.

The duo did point out that they intentionally selected large cases that seemed to have merit, and that it would be “inappropriate to make any strong empirical claims about whether private antitrust actions on the whole tend to be meritorious” based on the study.

Read more from the study at Thomson Reuters.

For more InsideCounsel coverage of antitrust issues, see:

DOJ sues to block beer merger

Private antitrust suits up in 2012

DOJ antitrust division collects record-breaking fines in 2012

Regulators sue NY tour buses for alleged monopoly

Dairy co-op will pay $158.6 million in antitrust settlement

Alanna Byrne

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