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Unpublished Paper
A New Test for Anticompetitive Litigation
  • Lucia Helena Salgado, Universidade do Estado do Rio de Janeiro
  • Rafael Pinho de Morais, Universidade do Estado do Rio de Janeiro
This paper aims at shedding some light on a very controversial topic in Competition Policy or Antitrust. The anticompetitive litigation – commonly called sham litigation – has been broadly discussed in the legal literature but there is no consensus on how antitrust authorities should handle those cases. Our intention is to offer a new test for evaluating the potential anticompetitive behavior associated with abusing the right of petition. Our challenging objective is to provide a screening device capable of guiding competition authorities around the globe when dealing with the practice of initiating one or a series of lawsuits or administrative procedures having as main purpose the intention to increase a rival’s cost or squeezing her margin. We review the evidence showing some lack of knowledge on the topic and doubtlessly an extremely reduced number of cases and an almost complete absence of convictions and precedents around the globe. This is a clear indication that type-II errors3 are common in the topic, with dramatic consequences for the market place. Our new test – an evidence-based one – shall contribute improving the standards for dealing with anticompetitive litigation, or sham litigation.
  • sham litigation; effects-based test; competition policy; antitrust
Publication Date
Winter April, 2013
Citation Information
Lucia Helena Salgado and Rafael Pinho de Morais. "A New Test for Anticompetitive Litigation" (2013)
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