'Speculative' Antitrust Damages
Washington Law Review, Vol. 70, p. 423, 1995
42 Pages Posted: 28 May 2009
Date Written: May 27, 2009
This article, published in 1995, describes antitrust law’s framework for proving individual harm as the basis for an award of treble damages. Antitrust damages are based on a standard of net individual harm, adapted (by the antitrust injury and Illinois Brick doctrines) to conform to a larger principle of net social harm. Net individual harm, so qualified, is measured by the difference between the plaintiff’s actual condition and its “but-for condition,” that is, the condition the plaintiff would have been in but for the defendants’ anticompetitive conduct. The plaintiff must project its but-for condition from a reasonably comparable base experience. In doing so, it must offer a theoretical model and an evidentiary foundation sufficient to isolate the defendant’s illegal conduct as the cause of the difference between the actual and but-for conditions.
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