Hovenkamp: daños derivados de ilícitos antitrust

Herbert Hovenkamp ha publicado un excelente compendio de los problemas de cálculo e indemnización de daños derivados de ilícitos antitrust. Algunos párrafos:

The social costs of enforcement loom larger when we consider that courts are not always able accurately to distinguish competitive from anticompetitive conduct. The more private enforcement there is, the more likely that the enforcement, at the margin, will be in areas where
courts are prone to error. For example, predatory pricing is a "marginal" offense. The costs of litigating it are relatively high, as is the likelihood that the court will make an error. A likely result is many potential defendants (not merely the ones involved in litigation) avoid aggressive
pricing for fear of litigating a predatory pricing case, even though they might eventually win. Although the antitrust laws provide costs and attorneys fees for prevailing plaintiffs, they make no similar provision for prevailing defendants. The social cost of the rule against predatory pricing must include not only the costs of litigating the two or three cases in which predation is proved, but also the dozens of cases in which the defendants eventually prevail. The more ambiguous the offense, the larger these costs become….

Our usable knowledge of probability of detection is so scant that any argument that the damages multiplier is used to offset the probability of detection must admit that the choice of treble damages or any other multiplier is an absolute shot in the dark. Treble damages is probably outrageously overdeterrent with respect to some offenses, such as mergers, and underdeterrent with respect to some others, such as naked collusion.

The difficulties of applying the optimal deterrence model in litigation suggest that, at least for the time being, courts should retain the system under which damages are calculated on the basis of the plaintiff's losses rather than the defendant's gains. First of all, whether deterrence or compensation is the underlying goal of private antitrust enforcement, a powerful case can be made that the framers of the antitrust laws intended damages as compensation

The Supreme Court has responded to these difficulties by setting a relatively high standard for proof of the fact of an antitrust violation and resulting injury, but a lower standard for proof of the amount of damages. As the Supreme Court put it in Story Parchment Co. v. Paterson Parchment Paper Co., "there is a clear distinction between the measure of proof necessary to establish the fact that petitioner has sustained some damage and the measure of proof necessary to enable the jury to fix the amount

A monopolist whose position is lawfully created is generally entitled to charge a monopoly price. As a result, damages should not equal the entire difference between the monopoly price and a competitive price, but rather "the price increment caused by the anticompetitive conduct that originated or augmented the monopolist's control over the market."

Many of the exclusionary practices undertaken by the monopolist must be characterized as "mobility barriers"—that is, they are designed not to enable the monopolist to charge a higher price but to prevent its monopoly position from eroding

The great majority of consumer actions for overcharge damages allege price fixing, not illegal monopolization. Cartel members, unlike monopolists, enjoy no presumption that they already had market power before the illegal act was committed. As a result, the damages rule for
price fixing cases is somewhat clearer: the plaintiff is entitled to the difference between the "competitive" price and the cartel price, multiplied by the number of units purchased