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CHAPTER IX
PRIVATE ANTITRUST SUITS
A. Introduction
In 2024, courts issued numerous rulings and decisions addressing the
elements of private antitrust claims for damages and injunctive relief under
Sections 4 and 16 of the Clayton Act,1 as well as the principal affirmative
defenses to, and procedural issues that often arise in litigating, such claims.
B. Elements of Private Damages Suits under Section 4 of the
Clayton Act
2. “Injury-in-Fact”
To recover damages under Section 4 of the Clayton Act, antitrust
plaintiffs must plead and prove that they suffered an injury as a result of
an antitrust violation.2 Recent decisions addressed the injury-in-fact
requirement in the context of antitrust claims by class and individual
plaintiffs challenging allegedly anticompetitive information exchanges,
restrictions, and covenants.
In Pit Row, Inc. v. Costco Wholesale,3 the Seventh Circuit held that
the plaintiffs,(retail gas station owners had provided sufficient evidence of
injury in fact to withstand summary judgment by introducing testimony
showing that the defendant’s allegedly unlawful pricing of gasoline below
statutorily-defined levels reduced the plaintiffs’ profits on retail sales of
gasoline.4 The plaintiffs’ evidence included testimony from their
representatives and data showing sales declines during the relevant
period.5 The court observed that monetary harms are among the “most
obvious” kinds of injury in fact.6 The Seventh Circuit, however, affirmed
2. In re Amitiza Antitrust Litig., 2024 WL 4250224, at *8 (D. Mass. 2024).
5. Id.
6. Id. at 501–02 (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 425
(2021)).
176 2024 Annual Review of Antitrust Developments
the district court’s granting of summary judgment to Costco on immunity
and causation grounds.7
In United States v. Agri Stats, Inc.,8 the plaintiffs alleged that the
defendant, a company that collects and disseminates information in the
meat processing industry, engaged in anticompetitive conduct based on its
distribution of pricing reports to competing pork and turkey processors.9
The court held that the plaintiffs had sufficiently alleged injury in fact even
though the defendant no longer published the reports at issue and had
declared that it had no plans to resume doing so.10 The court found that the
plaintiffs had sufficiently alleged a substantial risk of future harm to meet
the injury-in-fact requirement because they alleged that the defendant
intended to restart the reports in the future and continued to advertise its
services to customers in the chicken, turkey, and swine industries, and that
the meat processors intended to continue to subscribe to such reports in
the future 11
The court in Arkansas Home-Based Services Ass’n v. Pinnacle In
Home Care dismissed antitrust claims by a home-based healthcare
association and its members for lack of Article III standing because the
plaintiff association failed to plausibly allege that its members suffered an
injury in fact.12 The plaintiffs alleged that the defendant required its care-
provider employees to sign contracts that prevented them from working
for other in-home care providers, and that these agreements “detrimentally
impacted the ability of competitors—including plaintiffs—to fully
compete in the Arkansas market for home-based care services.”13 The
court held, however, that the plaintiffs failed to adequately allege how the
defendant’s agreements reduced the plaintiffs’ earnings to establish an
injury in fact.14
In Batton v. National Ass’n of Realtors,15 the court denied a motion to
dismiss, holding that representatives of a putative class of homebuyers had
Article III standing to challenge restrictions on access to the defendant’s
real-estate listing server on behalf of putative class members who resided
in states where the representative plaintiffs did not reside. The court held
7. Id. at 504-09.
8. 2024 WL 2728450 (D. Minn. 2024).
9. Id. at *2.
10. Id. at *6.
11. Id.
12. 2024 WL 4360497, at *7 (W.D. Ark. 2024).
13. Id. at *19-20.
14. Id.
15. 2024 WL 689989 (N.D. Ill. 2024).
Private Antitrust Suits 177
that the extent to which a representative plaintiff could assert claims under
the laws of states in which the plaintiff did not purchase a home was a
matter that could be deferred until the class certification stage.16 For
pleading purposes, the court held that the representative plaintiffs had
adequately alleged an injury in fact to establish Article III standing to
assert non-resident state-law claims by alleging that the class had paid
inflated prices traceable to defendants.17
In Le v. Zuffa, LLC,18 the court rejected the defendant’s argument at
summary judgment that a certified plaintiff class of current and former
mixed martial arts fighters in the Ultimate Fighting Championship had
failed to demonstrate class-wide Article III standing. The defendant
contended that the class could not show that each class member had been
injured by the defendant’s alleged anticompetitive scheme to reduce their
compensation.19 The court held that an admissible regression model
offered by the plaintiffs’ expert that purportedly showed “approximately
99 percent of fighters [had been] affected by the [defendant’s] alleged
scheme” created a genuine factual dispute that precluded summary
judgment on the issue of class-wide injury.20
Two decisions also addressed standing in the context of the
assignments of claims. In In re Turkey Antitrust Litigation,21 the court
examined whether an investment vehicle owned and controlled by a
litigation funder could assert a federal antitrust claim assigned by a
bankrupt national food distributor. Invoking the doctrine of champerty, the
defendants argued that state law prohibited the assignment. The court
disagreed, concluding that federal common law governs assignability of
federal antitrust claims and that applying a patchwork of differing state
laws on champerty did not promote access to the federal courts and the
enforcement of the antitrust laws by private attorneys general.22 The court
also noted that the assignment at issue was not merely a litigation funding
arrangement where a third-party agreed to fund a litigation in exchange
for a contingent fee, but a wholesale assignment.23 The court further
observed that the champerty doctrine had fallen out of favor, and that
16. Id. at *3-4.
17. Id. at *4.
18. 2024 WL 195994 (D. Nev. 2024).
19. Id. at *7.
20. Id. (citing Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods
LLC, 31 F.4th 651, 672, 677 (9th Cir. 2022)).
21. 727 F. Supp. 3d 756 (N.D. Ill. 2024).
22. Id. at 760-62.
23. Id. at 762-63.
