UCL Centre for Law, Economics and Society presents 

Enforcement Aspects of American Antitrust Law

An 8 hour CPD course taught over 4 weeks 
by Professor Joseph P. Bauer, Notre Dame Law School
February - March 2013

on Wednesday 6, 20 & 27 February, and 6 March  
from 6 - 8pm each week

Download the course brochure
 

Course Background: 

This mini-course will run over four 2-hour sessions during February and March 2013. It will consider the variety of issues raised by the availability of civil damages for successful plaintiffs, including the various  methodologies for the calculation of base amounts;  potential limitations on the amount of damages; and contribution for damages among co-defendants.

This mini-course will initially examine this structural landscape.  Particular attention will be given to the civil side, in which plaintiffs seek monetary relief.  Caselaw under the antitrust laws has imposed numerous procedural barriers to bringing a successful action.  The plaintiff must have standing to bring the lawsuit, and it must show that it suffered an “antitrust injury.”  One particularly important facet of these requirements in the so-called Illinois Brick rule, which provides that only a “direct purchaser” from the defendant may maintain an action for damages.

As is widely known, American rules of procedure permit antitrust claims to be brought as class actions, in behalf of potentially millions of aggrieved consumers.  Class actions can introduce significantly enhanced costs on the parties and the courts, and may make the litigation significantly more complicated.  The Federal Rules of Civil Procedure impose important requirements, to determine whether class action treatment is appropriate for the plaintiffs’ claims.  The course will examine the implications of this important tool for potential defendants, as well as for enhanced enforcement.

Other procedural and evidentiary aspects of American law play important roles in antitrust enforcement.  The United States still retains jury trials for any civil action seeking monetary relief, including antitrust lawsuits.  The importance of expert testimony has grown significantly in recent years, along with judicial control of who may testify and the scope of their testimony. The full range of federal constitutional rights applies to antitrust actions, including due process protection and first amendments rights.  But, the overwhelming percentage of lawsuits are resolved by settlement rather than actual litigation.

American procedural rules allow far more extensive pre-trial discovery – both in terms of who can be required to produce information and the scope of what must be produced – than in any other country.  While this vehicle of the gathering of evidence is designed to make the eventual litigation one more likely to be decided on the merits, it also significantly increases the cost and duration of litigation, and may raise questions of fairness.  These rules have particular importance to antitrust, because antitrust litigation tends to be highly fact-specific and complicated.  The discovery rules can also have important spill-over effects outside the U.S., as parties to non-American litigation seek resort to American courts for assistance with their litigation.

There are a number of important limitations on the ability to maintain a civil action.  These exceptions are the product both of statutory provisions and caselaw.  They carve out varying exceptions for certain industries (agriculture, banks, utilities), for certain sectors (labor unions), and for certain behavior, including in particular petitioning various branches of the government for legislative or judicial relief.  There is also an important exception from antitrust liability for behavior either of governmental bodies, or by private entities which are either required or permitted to engage in certain behavior by governmental bodies.

Another important aspect of this course will consider the effect on enforcement issues of the continually growing global nature of commerce.  Multi-national firms increasingly do business both in the U.S. and in dozens of other countries, with multiple antitrust enforcement agencies.  While there are moves towards harmonization of the laws, and cooperation among the agencies, there are still inevitable differences.  These companies continue to face the need to comply with varying legal rules and overlapping judicial and regulatory proceedings.  The course will consider the implications both of the American antitrust laws, which shield much foreign behavior from the reach of American courts, and changes in the landscape of European competition law, for these firms doing business in multiple jurisdictions. 

Summary of the course content
Wednesday 6 February

• History of American antitrust laws – 1890 to date 
• Overview of substantive and enforcement provisions
• Scope of enforcement mechanisms 
• Governmental and private 
• Governmental 
• Federal 
• Department of Justice
•  Civil and criminal enforcement 
• Federal Trade Commission 
• State and local government 
• Private 
• Treble damages 
• Injunctions 
• Class Actions 

Wednesday 20 February

• Requirements for bringing civil action 
• Antitrust injury 
• Standing 
• Indirect purchaser rule 
• Exemptions from antitrust liability

Wednesday 27 February

• Protected behavior 
• State action doctrine 
• Noerr-Pennington doctrine 
• Procedural issues 
• Class actions 
• Pre-trial discovery 
• Jury trials 
• Settlements 
• Expert testimony 
• Constitutional protections; due process 

Wednesday 6 March

• Continuation of discussion of procedural issues 
• Antitrust in international setting 
• Liability of foreign entities 
• Liability for foreign behavior 
• Cooperation between US enforcement agencies and other enforcement authorities

About the course tutor
Joseph Bauer has taught and written about antitrust law for the past forty years. He is a graduate of the University of Pennsylvania (A.B. 1966) and the Harvard Law School J.D. 1969). After graduation from law school, he worked as an associate in the antitrust/litigation department of a major New York City law firm for three years, and then served as a Teaching Fellow at the University of Michigan Law School. Prof. Bauer has been a member of the faculty at Notre Dame Law School since 1973. In that period, he has taught an antitrust course approximately 45 times. At Notre Dame, Prof. Bauer also teaches courses in and writes about civil procedure, conflict of laws, and intellectual property. He has also taught antitrust as a visitor at the University of North Carolina, Emory University and the University of Hong Kong. Prof. Bauer is also a significant scholar in the area of antitrust law. He has written more than a dozen lengthy articles in major American law journals, and is one of the co-authors of one of the leading multi-volume treatises in the field – KINTNER & BAUER, FEDERAL ANTITRUST LAW. He has been invited to speak as a lecturer at conferences and meetings around the world. He maintains his interest in the practical issues in the antitrust area by working as a consultant in antitrust litigation to practitioners and law firms.

Cancellation terms: 
If you wish to cancel your order for the course your cancellation must be received in writing no later than 14 days before the start of the course. If we receive your cancellation no later than 14 days before the start of the course we will refund any amount you have paid to us for the course less an administration charge of 20%. No refunds will be made for cancellations made by you within 14 days of the conference date.