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Supplier Retaliation Against Civil Antitrust Plaintiffs is Not a Major Concern

January 16, 2015

By LEE BERGER & EMILY SEYMORE

When customers consider whether to cooperate in governmental antitrust investigations against their suppliers or file civil antitrust lawsuits seeking damages for themselves, their in-house counsel often hear fears that the suppliers will take vengeance by disrupting their supply or otherwise injure the ongoing business relationship.

Recent legislative efforts, like the Criminal Antitrust Anti-Retaliation Act that passed the Senate last year, have focused on protecting whistleblowers of antitrust violations from retaliation by their employers; however, there is no statute protecting corporations that assist the government’s investigation into a supplier’s antitrust violations or sue the supplier to recover for its antitrust injuries. But it appears no additional legislation protection is needed as there is little evidence that such supplier retaliation has occurred. In fact, the trend is moving in the opposite direction: purchasers who are dependent upon suppliers increasingly pursue antitrust claims against those suppliers with no apparent disruption in their ongoing business relationships.