Joshua P. Davis

Bio: Joshua P. Davis is an academic researcher from University of San Francisco. The author has contributed to research in topics: Enforcement & Plaintiff. The author has an hindex of 5, co-authored 31 publications receiving 164 citations.

Benefits from Private Antitrust Enforcement: An Analysis of Forty Cases

Abstract: The goal of this Report is to take a first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws is serving its intended purposes and is in the public interest. To do this the Report assembles, aggregates, and analyzes information about forty of the largest recent successful private antitrust cases. This information includes, inter alia, the amount of money each action recovered, what proportion of the money was recovered from foreign entities, whether the private litigation was preceded by government action, the attorneys' fees awarded to plaintiffs' counsel, on whose behalf money was recovered (direct purchasers, indirect purchasers, or a competitor), and the kind of claim the plaintiffs asserted (rule of reason, per se, or a combination of the two). The article also compares the amounts collected from all antitrust violations together, and also from cases that also resulted in criminal penalties, to the total of all criminal antitrust fines imposed during the same period by the U.S. Department of Justice. This information is then used to help formulate policy conclusions about the desirability and efficacy of private enforcement of the antitrust laws.

Comparative Deterrence from Private Enforcement and Criminal Enforcement of the U.S. Antitrust Laws

Abstract: I. INTRODUCTION The purpose of this article is to determine which type of antitrust enforcement deters more anticompetitive behavior: the U.S. Department of Justice ("DOJ") Antitrust Division's criminal anticartel enforcement program or private enforcement of U.S. antitrust laws. The answer to this question - and answers to related questions concerning deterrence and compensation issues - could have important implications for the United States, pertaining both to appropriate antitrust remedies and to the course of litigation of private antitrust cases. Those answers also could influence other nations considering either adopting or changing criminal penalties for competition law violations, or allowing private rights of action by the victims of competition law violations. Anti-cartel enforcement by the DOJ long has been the gold standard of antitrust enforcement worldwide. If a country were to have only one type of antitrust violation, surely it would be against horizontal cartels, and surely this law would be enforced by that country's government officials. Even critics who believe that monopolization and vertical restraints never or rarely should be challenged almost always believe in strong anti-cartel enforcement.1 People in the antitrust world disagree about many things, but it is extremely difficult to find responsible critics who do not applaud the U.S. government's anti-cartel program.2 We strongly agree with this almost-unanimous consensus and are second to no one in our appreciation of the DOJ's anti-cartel activity. In terms of taxpayer dollars well spent, the program surely is one of the most outstanding in all of government. By contrast, private antitrust enforcement under U.S. antitrust laws gets little respect and much criticism. Indeed, it is difficult to find many people other than members of the plaintiffs' bar willing to say much good about private enforcement. For example, even moderates like FTC Commissioner J. Thomas Rosch believe that treble damage class action cases "are almost as scandalous as the price-fixing cartels that are generally at issue .... The plaintiffs' lawyers . . . stand to win almost regardless of the merits of the case."3 Due to these widespread beliefs, former FTC Chairman William E. Kovacic recently summarized the conventional wisdom about private enforcement succinctly: "private rights of actions U.S. style are poison."4 Given these criticisms, it may come as a surprise - even a shock - that a quantitative analysis of the facts demonstrates that private antitrust enforcement probably deters more anticompetitive conduct than the DOJ's anti-cartel program.5 This deterrence effect is, of course, in addition to its virtually unique compensation function.6 If this article's conclusion about the importance of private enforcement for deterrence is true, private antitrust enforcement also should receive much of the praise given to DOJ anti-cartel efforts. Further, private enforcement should be encouraged in the United States rather than hampered through new legislation7 or through restrictive judicial interpretation of existing law.8 And the United States' version of private antitrust enforcement should be something for other countries to consider.9 Part II of this Article analyzes the deterrence effects of DOJ anticartel efforts by studying DOJ cases filed from 1990 to 2007. Part III compares these results to the cumulative deterrence effects of a sample of forty large private cases that ended during this same period. (We do not compare the DOJ with the deterrence effects of every private case filed during this period, however, because we were unable to obtain this information). Before coming to any policy conclusions based on this comparison, we address some criticisms of private enforcement. Few commentators dispute that most DOJ anti-cartel prosecutions involved anticompetitive conduct or that most DOJ cartel cases should have been brought. …

Benefits From Private Antitrust Enforcement: An Analysis of Forty Cases

Abstract: THIS STUDY TAKES A first step toward providing an empirical basis for assessing whether private enforcement of the antitrust laws serves its intended purposes and is in the public interest. It does this by assembling, aggregating, and analyzing information about forty of the largest recent successful private antitrust cases.1 This information includes, inter alia, (1) the amount of money each action recovered for the victims of each alleged antitrust violation, (2) what proportion of the money was recovered from foreign entities, (3) whether govern-

Toward an Empirical and TheoreticalAssessment of Private AntitrustEnforcement

Abstract: The dominant view in the antitrust field is that private enforcement cases, and especially class actions, accomplish little or nothing positive but, on the contrary, are counterproductive. Despite strongly worded convictions, that view has been premised on anecdotal, self-serving and insufficiently substantiated claims. Indeed, the authors' 2008 study of 40 private cases appears to constitute the only systematic effort to gather information about a significant number of private antitrust actions. That study generated a great deal of controversy, including questioning of our conclusions by high officials at the Department of Justice and by Professor Daniel Crane at the University of Michigan Law School. Given this subject's importance and controversial nature we undertook a supplemental study of 20 additional private antitrust cases. This article analyzes the 20 new cases, compares and contrasts them with that of our earlier group, and draws insights from all 60. The studies demonstrate that private litigation has provided substantial cash compensation to victims of anticompetitive behavior: at least $33.8 to $35.8 billion. The studies also show that private antitrust enforcement has had an extremely strong deterrent effect. In fact, private enforcement probably deters more anticompetitive behavior than even the appropriately acclaimed anti-cartel program of the U.S. Department of Justice Antitrust Division.Another purpose of our study was to ascertain important characteristics of private antitrust cases that could help influence the debate over their efficacy. These include whether there were indicia that the cases had underlying merit, the significance of recoveries from foreign violators of U.S. antitrust law, and the sizes of attorney’s fee awards and claims administration expenses.Finally, this article responds to criticisms of our analysis and our conclusions. In particular, we explain why the Department of Justice officials are incorrect in challenging our claims about the deterrence effects of private antitrust enforcement and why Professor Crane is similarly mistaken regarding its compensation effects. We explain why our earlier study did indeed demonstrate the truly significant benefits of private antitrust actions — conclusions our new empirical work confirms and strengthens.

Defying Conventional Wisdom: The Case for Private Antitrust Enforcement

Abstract: The conventional wisdom is that private antitrust enforcement lacks any value. Indeed, skepticism of private enforcement has been so great that its critics make contradictory claims. The first major line of criticism is that private enforcement achieves too little — it does not even minimally compensate the actual victims of antitrust violations and does not significantly deter those violations. A second line of criticism contends that private enforcement achieves too much — providing excessive compensation, often to the wrong parties, and producing overdeterrence. This article undertakes the first ever systematic evaluation of these claims. Building upon original empirical work and theoretical inquiry by the authors, and an assessment of the specific factual bases of the criticisms, the article demonstrates that private enforcement provides important and beneficial compensation and deterrence, although the level of both is likely suboptimal. Moreover, the article shows it is highly unlikely that private enforcement produces excessive compensation or deterrence. The article concludes that private enforcement should be strengthened and explores some implications of this conclusion.

PRICE-FIXING OVERCHARGES: REVISED 2 nd EDITION

Abstract: This paper surveys almost 600 published economic studies and judicial decisions that contain 1,517 quantitative estimates of overcharges of hard-core cartels, of which 8% are zero. The primary finding is that the median long-run overcharge for all types of cartels over all time periods is 23.3%. The median overcharge for international cartels (30.0%) is significantly higher than for domestic cartels (17.2%). Cartel overcharges are negatively skewed, pushing the mean overcharge for all successful cartels to 50.4%. Convicted cartels are on average slightly more effective at raising prices as unpunished cartels, whereas bid-rigging conduct displays lower mark-ups than price-fixing cartels. Because some jurisdictions fine illegal cartels on the presumption of a 10% overcharge, these averages suggest that penalty guidelines aimed at optimally deterring cartels ought to be increased.

Deal or No Deal? - Consensual Arrangements as an Instrument of European Competition Policy

Abstract: Roughly during the last decade, European Competition Policy has undergone a series of fundamental changes. All four areas – cartel policy, merger policy, abuse control, and state aid control – have been subject to a modernization process, which led to a focus on analyzing the effects of individual cases and established a tendency towards deciding each case on its individual merits. These changes can be understood as a move away from rule-based competition policy towards a case-by-case approach. The case-by-case approach especially includes consensual arrangements, so-called ‘deals’ between the competition authority and business companies. Therefore, this paper will discuss the pros and cons of ‘deals’ as an instrument of (European) competition policy. The paper’s central focus lies on the economic analysis of the advantages and disadvantages of using consensual arrangements as a relevant instrument of European competition policy. With respect to European competition policy, we conclude that we need to issue a note of caution. From an economic perspective, an expansion of consensual elements necessarily walks hand in hand with a continual weakening of the protection of competition. Consumer welfare will not benefit from expanding the role and importance of consensual arrangements as a means of European competition policy.

The effects of private damage claims on cartel stability: Experimental evidence

Abstract: Private damage claims against cartels may have negative effects on leniency: whereas whistleblowers obtain full immunity regarding the public cartel fines, they have no or only restricted protection against private third-party damage claims. This may stabilize cartels. We run an experiment to study this issue. Firms choose whether to join a cartel, may apply for leniency afterwards, and then potentially face private damages. We find that the implementation of private damage claims reduces cartel formation but makes cartels indeed more stable. The negative effect of damages is avoided in a novel setting where the whistleblower is also protected from damages.

Courts without Borders: Law, Politics, and US Extraterritoriality

Abstract: Courts without Borders is the first book to examine the politics of judicial extraterritoriality, with a focus on the world's chief practitioner: the United States. For much of the post-World War II era, the United States has been a frequent yet selective regulator of activities outside its territory, and US federal courts are often on the front line in deciding the extraterritorial reach of US law. At stake in these jurisdiction battles is the ability to bring the regulatory power of the United States to bear on transnational disputes in ways that other states frequently dislike both in principle and in practice. This volume proposes a general theory of domestic court behavior to explain variation in extraterritorial enforcement of US law, emphasizing how the strategic behavior of private actors is important to mobilizing courts and in directing their activities.

A Community of Procedure Scholars: Teaching Procedure and the Legal Academy

Abstract: This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree — and in which procedure is recognized as a legitimate academic subject — have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of institutional support systems that inspire, fund, and shape the study of public justice. co-authors: Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifo