Trump DOJ's Antitrust Enforcement Policies Are Predictably Unpredictable

Grant E Schnell is a litigation attorney in Holland & Knight's Atlanta office.

More than 40 years ago, the Supreme Court determined that efficient enforcement of the Sherman Act required a bright-line rule, with very limited exceptions, barring antitrust claims by "indirect purchasers"—end customers who purchase products through an intermediate source—for payment of alleged overcharges that were "passed on" through a distribution chain. See Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). The Illinois Brick rule has been criticized as preventing, as opposed to promoting, effective antitrust enforcement. In addition, the growth of indirect purchaser lawsuits in state courts has resulted in parallel litigation, creating the complexity that the Illinois Brick decision sought to avoid.