USA Law and Practice Contributed by: Robert Houck, William Lavery, Joseph Ostoyich and Leigh Oliver, Clifford Chance US
9.2 Contribution The US Supreme Court has ruled that a defendant found jointly and severally liable under the federal antitrust laws for treble damages, costs and attor - neys’ fees has no right to seek contribution from co- conspirators for their share of the damages award ( Texas Industries v Radcliffe Materials, Inc , 451 US 630 [1981]). Rather, a single defendant may have to pay the entire damages award for three times the harm caused by the entire conspiracy. A court may subtract from the damages calculation any settlement that other defendants have paid to resolve the litiga - tion, but those settlement amounts are likely to reflect a discount to the settling defendants. This dynamic can pressure defendants to settle before trial by exposing non-settling defendants to the risk of bearing a disproportionate share of liability for their role in a multiparty conspiracy. Courts do not per - mit co-defendants to agree to indemnify each other for liability, but have generally upheld agreements between them to pay a proportionate share of any judgment based on, for example, each defendant’s market share. The Clayton Act permits private plaintiffs to sue for injunctive relief against any “threatened loss or dam - age by a violation of the antitrust laws” (15 USC Sec - tion 26). To obtain injunctive relief, a plaintiff must show that: • it has suffered irreparable injury that cannot be compensated for by other remedies, such as mon - etary damages; • the balance of hardships between the plaintiff and defendant favour an injunction; and • the injunction is in the public interest ( eBay v Mer- cExchange , 547 US 388 [2006]). 10. Other Remedies 10.1 Injunctions The Clayton Act also allows plaintiffs to seek interim relief – in the form of a preliminary injunction that can be obtained prior to trial – if the plaintiff is able to show a “likelihood of success on the merits” of its claim and meet other requirements ( North American Soc-
cer League v US Soccer Fed’n , 883 F 3d 32 [2d Cir 2018]). A preliminary injunction requires a hearing and notice to the opposing party (although in exceptional circumstances parties can seek a temporary restrain - ing order without such notice or a hearing) (Fed R Civ P 65). The party seeking a preliminary injunction must post a security bond to compensate the oppos - ing party if the injunction is found to have been unwar - ranted. Notably, the bar on damages claims by indi - rect purchasers under the federal antitrust laws does Alternative dispute resolution is available in antitrust litigation on similar bases as it is in other federal court litigation. Federal judicial policy favours arbitration, as a matter of contract between parties. While courts cannot compel parties to arbitrate their disputes in the absence of an agreement between them to do so, courts will rigorously enforce arbitration agree - ments according to their terms. In recent years, the US Supreme Court has applied this principle to arbi - tration agreements in boilerplate consumer contracts, in ways that have important consequences for private antitrust litigants. The Court has held that parties may not be compelled to arbitrate on a class-wide basis, in the absence of an agreement to do so ( Stolt-Niels- en v AnimalFeeds Int’l , 559 US 662 [2010]). A year later, the Court invalidated state laws seeking to bar enforcement of class arbitration waivers in consumer agreements ( AT&T Mobility v Concepcion , 563 US 333 [2011]). not extend to claims for injunctive relief. 10.2 Alternative Dispute Resolution These rulings could make it more challenging for con - sumers to pursue class-wide recovery under the anti - trust laws. Indeed, most recently, the Supreme Court affirmed – in the antitrust context – that contractual waiver of class arbitration is enforceable even if the cost of individually arbitrating exceeds a claimant’s potential for recovery ( American Express v Italian Colors Restaurant , 570 US 228 [2013]).
11. Funding and Costs 11.1 Litigation Funding
Litigation funding is a developing industry in the USA and may be available to support civil litigation under
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