Hastings Law Journal


Sean P. Gates


Should wrongfully discharged employees-those who are terminated for refusing to participate in or blowing the whistle on antitrust violations-have standing under the antitrust laws? To limit the number of potential plaintiffs in antitrust actions, the federal courts have developed a detailed private standing doctrine based in part on the ill-defined concept of antitrust injury. Caught in the twilight zone of this doctrine is the wrongfully discharged employee. Although such an employee has the potential for efficient private enforcement of the antitrust laws, federal courts are at odds on whether a grant of standing to these litigants is proper. Wrongfully discharged employees stand in the cusp between the policy rationales behind the antitrust standing analysis and a manageable formulation of the federal antitrust standing test.

California courts have addressed the same standing issue under California's antitrust law, the Cartwright Act. Since the private standing provisions of the federal and California antitrust statutes are similar, California courts have generally followed federal antitrust standing analysis. In doing so, two California appellate courts have denied standing to wrongfully discharged employees. This is a mistake. Using the case of the wrongfully discharged employee as a vehicle, this Note explores the Cartwright Act's unique history, amendments, and case law that broaden its standing provision and make Cartwright Act standing analysis distinctive. Additionally, this Note demonstrates that such employees have a great potential for efficient antitrust enforcement. Coupled with the Cartwright Act's broadened standing doctrine, this enforcement potential leads to the ultimate conclusion that California courts should open their doors to these valuable litigants.

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