New York antitrust and sports law attorney Jeffrey Kessler of Winston & Strawn discusses what he would change about antitrust law.
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I think the area that needs the most reform has to do with the fact that right now in the antitrust laws not only is each defendant in a conspiracy case, let’s say it’s a price fixing conspiracy, liable for its own damages but it’s liable for triple the damages of the entire industry. And then if other companies settle you’re left with their liability as well because there’s no right to either ask them to pay their fare share or is there any right to reduce what you owe by the damages attributable to their sales. So the dynamic this creates is that if a creative antitrust plaintiff settles early with other competitors in the industry and you think you’re innocent, you didn’t do it but you were left with this increasing liability for everyone else triple, it really becomes unfairly coercive forcing you to consider settling rather than going to trial and try to vindicate yourself when you don’t think you are participant or you didn’t do anything wrong. So I think it’s a little bit extreme in that we should be looking for a system where when other companies settles there’s at least some proportionate reduction of your liability so that you’re not left holding the bag for everyone else