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Private enforcement and collective redress: the benefits of empirical research and comparative approaches

Rodger, Barry (2012) Private enforcement and collective redress: the benefits of empirical research and comparative approaches. Competition Law Review, 8 (1). pp. 1-6. ISSN 1745-638X

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It is clear from a cursory examination of the academic literature in the field that private enforcement is an established, well-developed and vibrant mode of enforcement of US antitrust law constituting the preponderance of antitrust enforcement activity; complemented by public enforcement by the DOJ and FTC. Historically, a range of factors have combined to ensure that private enforcement is effectively the default setting for antitrust enforcement in general, namely: the wider litigative culture; the significant period of development of antitrust law and economics; and, specific characteristics of US civil procedure - the rules on discovery, the funding of actions, the availability of class actions, and the existence of treble damages actions - together with clarification (and modification) of the legal position in relation to issues such as the passing-on defence and standing for indirect purchasers. Private antitrust enforcement is a well developed and mature system of litigation in the US, in contrast with the position in the EU.