Brunswick Revisited: Antitrust Injury In A Competitor’s Merger Challenge

Previously published Spring/Summer 2012

Keywords: Brunswick, competitor suits, antitrust injury, antitrust claims

In fall 2011, antitrust plaintiffs were put on notice that the requirement of antitrust injury was alive and well and might be applied rigorously in competitor suits. In Sterling Merchandising, Inc. v. Nestlé, S.A., the US Court of Appeals for the First Circuit affirmed summary judgment for defendants, dismissing a competitor's antitrust claims against Nestlé S.A. concerning a merger that allegedly increased concentration among ice cream distributors in Puerto Rico.

Following the merger, plaintiff Sterling Merchandising's sales and market share actually increased, but Sterling alleged that, but for the merger and resulting anticompetitive activities, it would have performed even better. The First Circuit rejected plaintiff's argument that it had established antitrust injury, reasoning that Sterling had failed to prove any increase in prices or