NOTE: CHIPPING AWAY AT THE ILLINOIS BRICK WALL: EXPANDING EXCEPTIONS TO THE INDIRECT PURCHASER RULE Skip over navigation
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Copyright (c) 2012 Notre Dame Law Review
Notre Dame Law Review

NOTE: CHIPPING AWAY AT THE ILLINOIS BRICK WALL: EXPANDING EXCEPTIONS TO THE INDIRECT PURCHASER RULE

April, 2012

Notre Dame Law Review

87 Notre Dame L. Rev. 1709

Author

Matthew M. Duffy*

Excerpt



Introduction
 
For over thirty years, the Supreme Court's decisions in Illinois Brick Co. v. Illinois 1 to deny compensation to indirect purchasers 2 harmed by antitrust violations has drawn consistent criticism. 3 Illinois Brick limits private treble damage actions to the antitrust violator's direct customers, leaving subsequent purchasers who often suffer substantial harm without a remedy. The well-publicized Microsoft antitrust litigation provided a glaring example of the problems with this rule. Large scale purchasers who suffered considerable harm could not recover, while the only parties who could sue refused to do so for fear of economic retribution. 4 In 2007, the Antitrust Modernization Commission issued its report recommending legislative repeal of Illinois Brick, and most commentators agree that reform is needed, even if they disagree on how to correct the rule. 5 Such sweeping calls for change have gone unanswered for over three decades, with the Supreme Court reaffirming Illinois Brick 6 and Congress failing to provide a legislative fix. Making a bad situation worse, many lower courts deny indirect purchaser actions even where none of the policies animating Illinois Brick support this result. Rather than add to the chorus calling for the Illinois Brick wall to come down, 7 this Note identifies circumstances, like those in the Microsoft litigation, in which none of Illinois Brick's rationales apply. Where this happens, exceptions should be carved out of the rule to remedy the most egregious harm caused by denying indirect purchaser recovery. Exceptions currently receive inconsistent treatment, often accompanied by ...
 
 
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