Developing private enforcement in the EU: lessons from the Roberts Court.(Symposium: A Continuing Symposium on Antitrust and the Roberts Court)

I. INTRODUCTION

In The Antitrust Enterprise, Hovenkamp writes that "one of the remarkable phenomena of the Rehnquist Supreme Court is the degree to which it has denied review in antitrust cases." (1) The same cannot be said of the Roberts Court, which has shown tremendous enthusiasm in the area of antitrust. One explanation for renewed enthusiasm is that the pendulum of antitrust is swinging towards or away from post-Chicago, Chicago, or Harvard thinking. (2) The antitrust rules had been thought of as relatively settled. (3) Whatever the cause, this "flurry of antitrust activity [...] suggests the Roberts Court will play a relatively significant role in shaping antitrust doctrine for years to come." (4) This article offers a view of the Roberts Court jurisprudence from an EU perspective in light of ongoing reforms aimed at encouraging the private enforcement of the European Union's competition law.

It is first argued that by allocating the burden of proof; removing presumptions and procedural devices that assist in the satisfaction of that burden; imposing a demanding standard of proof; and narrowing the scope of antitrust, the Roberts Court jurisprudence makes it more difficult for private claimants to bring antitrust actions. Second, it is argued that the underlying rationale for the restrictive approach is a perception that the ability to recover treble damages, plus attorney fees and costs, provides an incentive for private parties to bring actions, regardless of whether the public interest is served. (5) This sentiment is expressed by Spence, reported as saying that "official policy is not the whole story. I worry more about private antitrust--people suing other people under the antitrust laws. Things can get carried away, and antitrust law can be used in ways that are not desirable, such as to harass, stall or block mergers." (6) Finally, it is argued that at time when the European Commission is seeking to increase the number of private antitrust actions, the Roberts Court jurisprudence provides an important reminder of the many factors influencing both the quantity and quality of private actions. However, as the need to ensure that "unmeritorious or not well founded claims" are discouraged and to avoid "the situation where defendants settle simply because litigation costs are too high" is less acute in Europe, this first phase of Roberts Court jurisprudence will have limited transatlantic impact. (7)

II. BARRIERS TO PRIVATE ENFORCEMENT

The series of cases decided by the Roberts Court increases the difficulties private claimants face when bringing antitrust actions. The cases do so by (1) placing the burden of proving an antitrust violation on the party seeking to show that the antitrust rules have been infringed; (2) ensuring that the standard of proof is high; (3) removing presumptions that enable the burden of proof to be satisfied most easily; (4) restricting the availability of procedures enabling private parties to gather evidence; and (5) reducing the scope of antitrust.

A. The burden and standard of proof

The first issue addressed by the Roberts Court is whether (and when) the law should require parties engaged in certain conduct to show the utility of that conduct in order for it to be considered lawful, as opposed to requiring parties contesting legality to show that the conduct has harmful effects. When answering this question the Court acknowledges the fallibility of the decisionmaking process and the harm that may be caused by erroneous decisions. (8) Errors may be of two types, either false positives (type I error, overdeterrence, or false conviction) or false negatives (type II error, underdeterrence, or false acquittal). (9) The Court recognizes that false negatives are less costly than false positives. While competition may operate to correct false negatives, false positives are not corrected by the market and also entail the risk that those avoiding sanctions imposed in error will be deterred from engaging in legitimate beneficial behavior. (10) That the burden of proof must be allocated to ensure the least costly type of error is captured in the Roberts Court's reassertion of the rule of reason as the standard mode of assessment. (11) The rule of reason places the burden of proof on the party contesting legality and in both Texaco v. Dagher and Leegin the Roberts Court considered that "antitrust plaintiffs must demonstrate that a particular contract or combination is in fact unreasonable and anticompetitive before it will be found unlawful." (12)