USA Law and Practice Contributed by: Robert Houck, William Lavery, Joseph Ostoyich and Leigh Oliver, Clifford Chance US
lacks the authority to adjudicate its own disputes, and instead must pursue enforcement actions exclusively in the federal courts. The courts likewise retain over - sight of Division settlements of these cases before tri - al. When the Division concludes a civil antitrust inves - tigation or litigation by settlement (known as a consent decree), the Antitrust Procedures and Penalties Act obliges the Division to file a complaint and proposed settlement materials in federal court and to seek judi - cial approval of the settlement’s terms. However, the court’s review is limited to ensuring that the settlement is in the “public interest” (15 USC Section 16). By contrast, a criminal antitrust prosecution – which, as a matter of policy, the Division uses to target only “hardcore” per se competition offences – is over - seen in its initial stages by a federal grand jury, which decides whether there is “probable cause” to believe a crime was committed, justifying the issuance of an indictment. In general, criminal antitrust defendants often plead guilty rather than stand trial. In that cir - cumstance, the trial court has discretion to accept or reject the Division’s recommended sentence. Consequences of Federal Antitrust Enforcement Actions A federal antitrust enforcement action can have important consequences for parallel private litiga - tion. For example, a final judgment or decree against a defendant in a federal antitrust enforcement action can serve as prima facie evidence against that defend - ant in related private litigation (15 USC Section 16[a]). In addition, the Division periodically intervenes in civil antitrust litigation to request a stay of discovery where the Division believes the exchange of evidence between the parties could undermine the Division’s ongoing criminal investigation of one or more defend - ants. Finally, the Division and the FTC may intervene in private antitrust litigation as an amicus curiae to offer their views on the application of the antitrust laws to a given complaint. 2.4 Proof Section 4 of the Clayton Act requires a plaintiff to prove that the defendant(s) violated the antitrust laws and that the plaintiff has been “injured in his business or property” – that is, suffered economic loss – “by reason of” that violation (15 USC Section 15). Plaintiffs
in federal antitrust cases must prove each element of their claim by a “preponderance of the evidence” – meaning they must establish through direct or cir - cumstantial evidence that a fact is more likely than not true. 2.5 Pass-On Defence Defendants in federal antitrust litigation cannot escape liability by establishing that direct purchasers passed on to indirect purchasers some or all of an anti-com - petitive overcharge ( Hanover Shoe v United Shoe Mach , 392 US 481 [1968]). However, several state antitrust laws authorising antitrust claims by indirect purchasers provide that courts should take steps to avoid duplicative recovery, including by apportioning damages between direct and indirect purchasers (as discussed in 4.3 Direct/Indirect Purchasers ). 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations A private litigant may pursue a claim for damages under the federal antitrust laws within four years after the cause of action has “accrued” (15 USC Section 15b). An antitrust claim accrues when the defend - ants’ offending conduct causes the claimant to suffer a non-speculative injury. In the case of an ongoing conspiracy, the limitations period runs from each new “overt act” in furtherance of the conspiracy that inflicts new and accumulating injuries on the plaintiff ( Zenith Radio Corp v Hazeltine Research , 401 US 321 [1971]). In some cases, the theory of “fraudulent concealment” may equitably “toll” (ie, pause) the limitations peri - od where defendants have taken affirmative actions to prevent a plaintiff from learning of their cause of action. The limitations period for private litigants can also be tolled for other statutory reasons, such as a pend - ing government action for the same conduct (15 USC Section 16[i]). In addition, the statute of limitations for a plaintiff who opts out of a purported class action remains tolled during pendency of the class claim ( American Pipe & Construction v Utah , 414 US 538 [1974]). In 2018, the Supreme Court clarified that this rule applies only to opt-out plaintiffs who seek to pur -
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