USA Law and Practice Contributed by: Robert Houck, William Lavery, Joseph Ostoyich and Leigh Oliver, Clifford Chance US
8. Damages 8.1 Damages: Assessment, Passing On and Interest The Clayton Act does not provide for punitive dam - ages. Instead, plaintiffs who suffer antitrust injury may recover treble damages. For consumer plaintiffs injured by a price-fixing or a market-division cartel, common measures of damages include the amount of the overcharge caused by the conspiracy, meas - ured by identifying the price they would have paid but for the restraint. For competitor plaintiffs injured by a monopolist’s exclusionary conduct, a common meas - ure of damages is the plaintiff’s resulting lost profits. As with the other elements of a civil antitrust action, plaintiffs must establish the value of their injury by a preponderance of the evidence standard. The Clayton Act permits damages assessments to be made “in the aggregate” according to “statistical or sampling meth - ods” accepted by the court (15 USC Section 15d). In practice, antitrust plaintiffs nearly always rely on an expert to quantify damages according to an accepted model. Plaintiffs must also prove that the damages were not caused by separate and independent fac - tors (ie, they are required to disaggregate the losses caused by the alleged antitrust violation). As discussed in 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-competitive overcharge ( Hanover Shoe v United Shoe Mach , 392 US 481 [1968]). A statutory exception to the treble damages rule exists for defendants who successfully receive leni - ency from prosecution under the Division’s Leniency Policy. Under the Antitrust Criminal Penalty Enhance - ment and Reform Act (ACPERA), leniency recipients who provide “satisfactory co-operation” to plaintiffs in follow-on civil litigation may have their damages lim - ited to actual damages, rather than treble damages. Courts have not assessed with any precision what constitutes a defendant’s satisfactory co-operation, but defendants can expect that in order to receive what is known as ACPERA credit they will need to
provide evidence to plaintiffs in support of their anti - trust claims. Section 4 of the Clayton Act enables plaintiffs to recover interest on damages awards. Pre-judgment interest awards are discretionary: a federal district court may award interest on actual damages – but not for the full treble damages available under the antitrust laws – for any period from the date of service of the plaintiff’s pleading to the date of judgment, when just in the circumstances. That standard considers wheth - er defendants acted intentionally to delay resolution of the proceedings (15 USC Section 15[a]). By contrast, post-judgment interest is mandatory: the court must award interest on a damages award until the defendant(s) transfers the funds to the plaintiff(s). The interest – at a rate equal to the weekly average one-year constant maturity Treasury yield for the cal - endar week preceding the date of the judgment – is calculated from the date of the entry of judgment and is compounded annually (28 USC Section 1961). Each state’s antitrust laws provide for post-judgment inter - est; the law on pre-judgment interest varies from state to state. US antitrust law follows the common law tort principle of joint and several liability, which means that each defendant can be responsible for paying the entire damage award for the conspiracy as a whole (not just for damages to purchasers with whom a given defendant transacted). However, as discussed in 6.3 Leniency and Settle - ment Agreements and 8.1 Damages: Assessment, Passing on and Interest , successful recipients of leniency from the Division’s antitrust prosecution who provide “satisfactory co-operation” to follow-on litigants may have their civil damages claim limited to actual damages under ACPERA. In addition, the leniency recipient will not be liable to plaintiffs on a joint and several basis for the harm from the entire conspiracy, but will instead be held liable only for its own harm to the plaintiffs. 9. Liability and Contribution 9.1 Joint and Several Liability
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