USA Law and Practice Contributed by: Robert Houck, William Lavery, Joseph Ostoyich and Leigh Oliver, Clifford Chance US
ad server market and exchange market. Additionally, several states have recently adopted their own form of pre-merger notification requirements. Legislative developments are discussed further in 13.1 Legislative Trends and Other Developments . 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Section 4 of the Clayton Act authorises damages suits in federal court by “any person” – which includes corporations and other legal entities – “who shall be injured in his business or property by reason of any - thing forbidden in the antitrust laws” (15 USC Sections 7; 15[a]). The federal antitrust laws underlying private damages claims include, perhaps most prominently, Section 1 of the Sherman Antitrust Act (prohibiting concerted action that unreasonably restrains trade) and Section 2 (prohibiting single-firm conduct that maintains or creates a dominant position by unrea - sonably excluding competitors from a market). State antitrust laws vary, but broadly confer private rights of action on a similar basis. The Clayton Act allows litigants to pursue damages claims that follow on from parallel scrutiny by federal law enforcement and standalone claims. Standalone claims – brought by private litigants in the absence of any governmental action against the defendants – are common in US practice. News that antitrust authori - ties are investigating potential anti-competitive con - duct commonly prompts private litigants to quickly initiate parallel damages actions, usually while the underlying investigation remains pending. 2.2 Courts Most federal competition matters are resolved in the US federal courts, which have exclusive jurisdiction over federal antitrust claims. An exception is the administrative adjudicatory process carried out by the FTC (see 2.3 Impact of Competition Authorities ). The Clayton Act accords plaintiffs wide latitude in choos - ing a venue (that is, the US federal district court in which they file suit). Venue is proper under the Clay - ton Act in any federal district where the defendant
“resides or is found or has an agent”, or “transacts business” (15 USC Sections 15[a], 22). The parties may request, or the court may on its own decide, “for the convenience of parties and witness - es” or “in the interest of justice”, to transfer a federal antitrust litigation to a different federal district where the case “might have been brought” or to any district to which “all parties have consented” (28 USC Sec - tion 1404[a]). Different claimants may file parallel antitrust com - plaints in differing federal districts. When this occurs, the parties may request that the Judicial Panel on Multidistrict Litigation consolidate claims – involving “common questions of fact” – into a single federal district for co-ordinated pretrial proceedings (28 USC Section 1407[a]). Antitrust claims made under state law may also be heard in federal court if: • they supplement a federal claim (28 USC Section 1367); • the parties reside in different jurisdictions (28 USC Section 1332[a]); or • they meet the requirements of the Class Action Fairness Act of 2005, which significantly expanded the federal courts’ authority to resolve large class actions even if pursued under state law (28 USC Section 1332[d]). 2.3 Impact of Competition Authorities The federal antitrust enforcement agencies exer - cise independent judgement over which matters to litigate, but their enforcement actions are subject to judicial review in some form. The FTC, as an inde - pendent administrative agency, possesses the statu - tory authority to adjudicate civil claims of “unfair com - petition” before the agency’s own administrative law judges in trial-type proceedings. Decisions by FTC administrative judges are automatically reviewed by the FTC commissioners, and a losing defendant may appeal the Commission’s decision to the federal appellate courts. By contrast, the US Department of Justice, Antitrust Division (the “Division”), as a law enforcement agency,
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