App Store Opinion Returns Antitrust Enforcement To Its Roots

Law360 (May 29, 2019, 12:15 PM EDT) -- Congress made clear when it enacted the Sherman Act in 1890 that the federal antitrust enforcement regime relies on private enforcement actions — civil lawsuits seeking damages — to punish and deter anti-competitive activity. But there are limits on those lawsuits and, particularly, on who may bring them.

The “direct purchaser” rule, announced in Illinois Brick Co. v. Illinois,[1] is among those limitations: It prevents parties who have not transacted directly with the defendant from suing for damages under the federal antitrust laws. Suits seeking “pass-through” damages — i.e., damages that a party further up the distribution chain incurred and passed down to the...

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