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.
Hastings Law Journal
35 Hastings L.J. 937 (1984)