For over 100 years, the Clayton Act has ostensibly prohibited anticompetitive mergers and acquisitions. Yet, as fears of market concentration and market power grow, it seems high time for a boost in enforcement. Armed with statutory causes of action for injunctive relief and treble damages, private plaintiffs could provide that needed boost. However, these plaintiffs face an unexpected hurdle to enforcing the merger laws: section 2 of the Sherman Act.
This Note argues that the narrowing of liability under section 2 over the past three decades has had a collateral impact on private plaintiffs’—especially rival firms’—ability to satisfy the antitrust injury requirement to challenge an anticompetitive merger. The 1986 Supreme Court decision in Cargill, Inc. v. Monfort of Colorado, Inc. requires plaintiffs to allege that newly merged firms will act anticompetitively in a way that injures the plaintiffs. To make such allegations successfully, plaintiffs must rely on accepted theories of antitrust liability, which will often sound in the predatory behaviors prohibited by section 2. But as section 2 has shrunk, so too has the ability to challenge the merger.
Paul F. Brzyski, Collateral Damage: Private Merger Lawsuits in the Wake of Section 2’s Contraction, 68 Duke Law Journal Online 119-146 (2019)