Edited by Albert A. Foer and Jonathan W. Cuneo
Chapter 1: Benefits of Private Enforcement: Empirical Background
1 Robert H. Lande2 Many commentators, especially members of the defense bar, have criticized the existing United States system of private antitrust litigation. Some assert that private actions all too often result in remedies that provide lucrative fees for plaintiffs’ lawyers but secure no significant benefits for overcharged victims.3 Others suggest that private litigation merely follows an easy trail blazed by government enforcers and adds little of public benefit to government sanctions.4 Yet others contend that, in light of government enforcement, private cases in the United States lead to excessive deterrence.5 Further, one common 1 This article is a condensation and revision of ‘Benefits From Private Antitrust Enforcement: An Analysis of Forty Cases,’ 42 USF. L. Rev. 879 (2008), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1090661 (hereafter ‘Benefits: An Analysis’). For summaries of the individual case studies analyzed in this article see ‘Benefits from Antitrust Private Antitrust Enforcement: Forty Individual Case Studies,’ (hereafter ‘Benefits: Individual Case Studies’), http://papers.ssrn. com/sol3/papers.cfm?abstract_id=1105523. 2 Venable Professor of Law, University of Baltimore Law School; Board of Directors, American Antitrust Institute. The author is grateful to Thomas Weaver for excellent research assistance. 3 Professor Cavanagh ably summarized this belief: ‘Many class action suits generate substantial fees for counsel but produce little, if any, benefit to the alleged victims of the wrongdoing. Coupon settlements, wherein plaintiffs settle for “cents off” coupons while their attorneys are paid their full fees in cash . . . are of dubious value to the victims of antitrust...
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