Controlling the Competitor Plaintiff in Antitrust Litigation

In Misuse of the Antitrust Laws: The Competitor Plaintiff, Edward Snyder and Thomas Kauper survey a sample of private antitrust cases from the period 1973-1983 and review critically the recent economic literature on raising rivals’ costs as an exclusionary practice.

Much in Snyder and Kauper’s study is worthy of comment. They have given us a useful picture of private antitrust litigation during the period covered by the sample, one that may be more accurate than a reading of reported cases from that period would suggest. Moreover, their generally critical treatment of the literature on raising rivals’ costs is clear and focused on the need to draw administrable policy conclusions. Most noteworthy, however, is their critique of the antitrust injury doctrine as a means of controlling unmeritorious or perverse suits by competitors. Their argument on this score – based upon their analysis of the 1973-1983 data and some more recent antitrust injury decisions – is deeply flawed and does not support their conclusion that competitor suits should be abolished. We argue here that the antitrust injury requirement and related procedural devices have evolved to address the problem of perverse competitor suits. Moreover, the solution that Snyder and Kauper offer for the problem will not likely improve upon the traditional methods of the legal system.