News Archive
TRENDS IN PRIVATE ANTITRUST LITIGATION: 2004 - 2007
Andrew E. Abere, Ph.D.
Senior Economist, Princeton Economics Group, Inc.
Introduction
In 2005, PEG economists reported on trends in private antitrust litigation over the period from 1980 to 2004. We noted that despite an upward trend since 1990, the level of private antitrust activity since the end of the 1990s had remained well below the level of the early 1980s, when concerns about the volume of such litigation led to various proposals for reform. As a few years have passed since our report, we have examined more recent trends.
 ( click to enlarge ) Figure 1: Private Antitrust Cases Filed in U.S. District Courts 1980-2007 |
 ( click to enlarge ) Figure 2: U.S. Government Antitrust Cases Filed in U.S. District Courts 1980-2007 |
Trends Since 2004
In Figure 1, we present the data on the number of private antitrust cases filed in U.S. District Courts for the period 1980 to 2004, along with more recent data for 2005 to 2007. While the number of cases filed was essentially constant from 2003 to 2004, it has steadily increased each year from 2004 through 2007. The total of 967 cases filed in 2006 was the largest number filed in the prior twenty years. 2007 was the first year since 1985 when more than 1,000 cases were filed.
We were curious to know whether the recent increase in the number of private antitrust cases was related to the level of federal enforcement. Often, a private case against a defendant is a "follow-on" case to a successful government action against the same defendant. In Figure 2, we present the data on the number of U.S. government antitrust cases (criminal and civil) filed in federal District Courts for the period 1980 to 2004 along with more recent data for 2005 to 2007. The number of U.S. government filings in any given year is a fraction of the number of private filings in the same year, such that private filings never account for less than eighty percent of all antitrust filings in a year.
During the 25 years we studied in our earlier report, the smallest number of government cases filed was 33 in 2004. While there was an increase to 47 cases in 2005, the number then decreased as fewer than 40 cases were filed in both 2006 and 2007. Given this decrease, it appears unlikely the recent increase in the level of private enforcement is related to the level of federal enforcement.
Conclusion
Private antitrust litigation, as measured by the number of cases filed in U.S. District Courts, has increased sharply in the last several years. The number of cases filed annually is beginning to approach the levels observed in the early 1980s, when more than 1,000 cases were filed each year. Of course, it remains to be seen whether this latest trend will continue and whether it will, as it did in the 1980s, prompt concerns about the volume of private antitrust litigation. This recent increase does not seem to be related to the level of U.S. government enforcement, as the increase in the number of private cases filed has been accompanied by a general decrease in the number of U.S. government cases filed.
1 Data in all figures are from the Administrative Office of the United States Courts. Data from 1980 to 1991 are for the year ended June 30 and data from 1992 to 2004 are for the year ended September 30.
2 See Thomas M. Kauper and Edward A. Snyder, "Private Antitrust Cases That Follow on Government Cases," in White, ed., Private Antitrust Litigation: New Evidence, New Learning (Cambridge: MIT Press, 1988).
3 U.S. government cases include both civil and criminal filings, and include cases where the U.S. government was a plaintiff or a defendant.
4 This pattern is quite consistent with the one we noted in our earlier report. The level of private enforcement does not seem to be strongly related to the level of government enforcement, although, for the reasons we discussed in our earlier report, the number of cases may be an imperfect measure of enforcement.