Article
Antitrust Efficient Enforcer and the Financial Products Benchmark Manipulation Litigation
Ohio State Business Law Journal
(2018)
Abstract
To have standing in a civil antitrust action under the Clayton Act, plaintiffs must establish antitrust injury and that they are an efficient enforcer. But what is an efficient enforcer? This question has confounded civil antitrust litigation for decades as evidenced by case law addressing this issue. Generally, the efficient enforcer rule askes the question, “does an indirect purchaser who purchases goods or services from a middleman who purchased from defendants who are allegedly engaging in antitrust violations have standing to sue defendants in a civil antitrust action?” Specifically, the efficient enforcer rule addresses the problems of duplicative recovery and complex apportionment of damages in cases involving indirect purchasers and balancing these concerns with the concern that denying recovery would allow those who violated antitrust laws to retain illegal profits. Unfortunately, as applied by some courts, the efficient enforcer rule has been conflated with antitrust injury issues, morphed into a no indirect purchaser rule and virtually ignores the deterrence concerns regarding antitrust violators keeping illegal profits. This paper examines the United States Supreme Court cases and appellate court cases addressing the efficient enforcer rule, clarifies the confusion and applies the efficient enforcer rule as originally intended to the recent antitrust cases involving the manipulation of financial products benchmarks.
Disciplines
Publication Date
2018
Citation Information
Sharon E. Foster. "Antitrust Efficient Enforcer and the Financial Products Benchmark Manipulation Litigation" Ohio State Business Law Journal Vol. 12 (2018) Available at: http://works.bepress.com/sharon_foster/16/