left-caret
Insights

attorney authored

Meritorious Circumstances are Not Enough - Antitrust Standing Drifts Further Astray in The Ninth Circuit After In Re ATM Fee

April 29, 2013

By LEE BERGER

Since 1977, the U.S. Supreme Court has limited the types of plaintiffs who may bring
price-fixing claims under the Sherman Act and Clayton Act. In

Illinois Brick Company v. fllinois

, the Supreme Court established a bright-line rule forbidding claims by indirect purchasers-in other words, purchasers who did not direcdy purchase the allegedly pricefixed good. Indirect purchasers are situated downstream of the direct purchaser, and their claims for damages depend on a theory that the direct purchaser has passed-on the overcharge. At the time, the Court identified two primary reasons to forbid indirect purchase claims: first, because defendants cannot defend a Sherman Act claim based on the direct purchaser having "passed-on" the overcharge, it would be unfair to permit antitrust plaintiffs to use pass-on offensively (and could lead to double-rec.overy); and second, a deep-seated concern about the complicated and confusing evidentiary issues implicated bypass-on evidence. Thirteen years later, in Kansas v. Utilicorp United, Inc., the Court emphasized that its Illinois Brick bright-line rule had no exceptions beyond the two narrow ones stated in Illinois Brick for "cost-plus" contracts and when an indirect plaintiff owns a direct purchaser.