Antitrust A brighter future for private plaintiff challenges

Traditionally, private plaintiffs have not fared as well as the government in merger challenges. Indeed, the standards for establishing private standing and entitlement to injunctive relief under § 16 of the Clayton Act relegate many onetime private antitrust plaintiffs to explanatory footnotes in district court opinions granting motions to dismiss new private antitrust lawsuits. A recent opinion in the challenge by two competitor-plaintiffs to AT&T Inc.'s proposed acquisition of T-Mobile USA Inc. highlights the unique challenges private antitrust litigants face when seeking to enjoin competitor mergers. This article provides an overview of those challenges and suggests how recent developments in public antitrust law might affect the case and future private merger challenges.

Reprinted with permission from the November 28, 2011 edition of THE NATIONAL LAW JOURNAL © 2011 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.