Document Type

Article

Publication Date

2001

Abstract

Most of the popular and scholarly discussions of Microsoft have focused on whether the defendant violated the law and, if so, whether the remedial order was appropriate. Never far from the surface in all of these discussions, however, has been the prospect of private antitrust suits that would inevitably follow a government victory. Indeed, numerous consumer class actions were filed against Microsoft in the wake of the District Court's issuance of its findings of fact. Should the District Court's decisions on liability stand, Microsoft can expect to face other suits by a variety of actors, including competitors, original equipment manufacturers ("OEMs"), internet businesses, and perhaps others.

This article offers a preliminary analysis of some of the issues that would frame the private damage litigation. The authors are selective because there are so many potential classes of plaintiffs, each with many possible theories of recovery. As a further complication, Judge Thomas Penfield Jackson's findings and conclusions naturally focus on the existence of violations and only incidentally on their effects on particular actors; still less do they discuss other causal factors that may have affected the fortunes of various actors. Consequently, there are numerous gaps in the findings that private plaintiffs will have to fill in order to recover treble damages. To make the task manageable, the authors focus on the prospects of consumers, OEMs, and competitors for recovering treble damages. More specifically, this Article considers how the antitrust injury doctrine might shape any future damage models for these potential plaintiffs.

The antitrust injury doctrine reminds us that effectiveness does not mean imposing an arbitrarily high penalty; it means insuring the penalty is at the right level, given the goals of the antitrust laws. That question requires courts deciding damage issues to measure the plaintiffs' damage theory against the goals of antitrust.

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