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Last Rev. 10/29/16 10:50am

Treble Damages and Other Relief

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The antitrust laws need to be enforced to be effective, and private persons are encouraged to commence meritorious antitrust lawsuits by offering them automatic trebling of their proven damages. The trebling occurs as part of the issuance of a monetary judgment to the prevailing plaintiff. Thus, if the jury finds that the plaintiff was injured to the extent of $333,333.33 by denial of, say, $200,000 or $500,000 in advertising and promotional program payments and services, and if this dollar amount of proven injury is upheld by the judge, then the clerk will automatically enter the final judgment for 3 times that amount, or $1,000,000. It should be noted that pre-judgment interest is rarely awarded in antitrust suits. The thought was that trebling would more than compensate for the lost interest. This means that the trebled amount is not 100% inducement. Part of the trebling represents interest that the plaintiff would have earned (and the manufacturer would not have earned) if the manufacturer had paid the required program payments and services when they should have been made.

In rare cases, where delays can be blamed on the defendant without justification, the plaintiff can request that the court award pre-judgment interest as well, but this seldom occurs. Post- judgment interest is automatic, unless the parties have stipulated to something else in a consent judgment.

Another part of the relief available to the antitrust plaintiff is an amount for legal fees. This amount varies and there are different ways in which the fees might be calculated, but generally speaking the fees amount to about 15% of the untrebled judgment, and are added to the trebled judgment. In the above example, a legal fee of 15% of $333,333.33 or $50,000 would be added onto the $1,000,000 judgment. That is not a very large fee, especially when the plaintiff is paying its lawyer a percentage of the recovery, often ranging from 25% to 50% of the net recovery (after deduction of expenses).

Finally, there is the very important relief in a final judgment of an injunction, to order the defendant not to continue with the conduct the court has found to be illegal. A jury does not award an injunction. The judge has to make this decision based on the evidence and generally the judge will be guided by the jury's verdict, but the judge is not absolutely bound by the verdict and can grant or deny injunctive relief regardless of the jury's verdict.

The request for a permanent injunction is an important part of antitrust litigation because a defendant could well afford to pay $1,050,000 to one of its 10,000 customers every now and then, as long as the manufacturer continues to violate the law (enabling the manufacturer to obtain perhaps $1 billion each year in illegal income), but an injunction prohibiting such practice could cause the manufacturer to collapse financially. Quite often the manufacturer and major retailer are wholly dependent on violating the antitrust laws, and any injunction stopping their violations would put them out of business.

It appears to me, the author of this website, that the major retailers are not able to operate profitably, and would have to go out of business if they paid the manufacturer the same price paid by their independent competitors. If the major retailers in fact are paying half as much for goods as the wholesalers for the retail competitors are paying the same manufacturer, this would mean that Wal-Mart is operating at a $50 billion loss, if you took away the $60 billion in estimated illegal payments and services it is receiving from its 25,000 supplying manufacturers. Kmart, we see, cannot operate profitably when receiving perhaps 50% of the illegal payments (on a proportional basis) being received by Wal-Mart. Even Wal-Mart cannot operate profitably without received about 80% of the illegal payments.