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The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert
The 'Failure To Mitigate' Defense In Antitrust, Thom Lambert
Faculty Publications
The article begins with the premise that any failure to mitigate defense should aim to minimize the sum of three costs: the costs associated with inefficient behavior by defendants, the costs associated with inefficient behavior by plaintiffs, and the administrative costs of claim adjudication. If cost minimization is the goal, then whether a failure to mitigate defense exists, and the content of the antitrust plaintiff’s mitigation requirement, should differ depending on the type of damages the plaintiff is seeking to recover. The bulk of this article discusses how the defense should apply to different damages claims.The article proceeds as follows: …
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Weyerhaeuser And The Search For Antitrust's Holy Grail, Thom Lambert
Faculty Publications
A general definition of exclusionary conduct has become a sort of Holy Grail for antitrust scholars. At present, four proposed definitions appear most promising: (1) conduct that could exclude an equally efficient rival; (2) conduct that raises rivals' costs unjustifiably; (3) conduct that, on balance, impairs consumer welfare by creating market power without providing countervailing consumer benefits; and (4) conduct that makes no economic sense but for its exclusionary effect on rivals.