Employee Standing Under Section 4 of the Clayton Act

This Note will focus on the confusion that plagues one category of antitrust standing cases, those in which an employee alleges wrongful discharge for his refusal to participate in a scheme that violates the antitrust laws. Conflicts among the circuits in their analysis and resolution of these employee standing cases have not been definitively settled by the Supreme Court’s recent pronouncements on the right to seek recovery under section 4. This Note argues that these recent Supreme Court decisions, as well as the policies behind the antitrust laws, weigh in favor of permitting an employee to maintain a section 4 action against his employer if he is discharged for refusing to participate in an operation that violates the antitrust laws. Part I of this Note discusses the general parameters of the right to section 4 recovery, emphasizing the Supreme Court’s recent formulation of these parameters. Part II suggests that when these antitrust standing criteria are properly applied to the factual context in which most employee standing cases arise, an employee discharged for refusing to participate in an antitrust scheme has standing to seek treble damages under section 4.