UC Law Journal
Abstract
Courts today permit private damages actions for illegal mergers under section 7 of the Clayton Act. An unrestricted private right to damages under section 7, however, creates the risk of deterring socially useful mergers. This Article analyzes the efficiency defense as a means of limiting private actions and concludes that this defense is impracticable because the efficiency and market power effects of a merger are virtually impossible to quantify. The Article then proposes a broadened and strengthened version of the "antitrust injury" doctrine formulated by the Supreme Court in .Brunswick to restrict private actions: if the complaint alleges injury resulting from the post-merger firm's increased efficiency, the case should be dismissed; if the complaint alleges injury resulting from a monopoly overcharge, the plaintiff should be allowed to proceed; finally, if the plaintiff alleges a secondary anticompetitive practice, the plaintiff should be required to proceed under the antitrust laws dealing with the challenged practice.
Recommended Citation
Herbert Hovenkamp,
Merger Actions for Damages,
35 Hastings L.J. 937
(1984).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol35/iss6/2