One Short of a Load: Why an Illinois Brick Repealer Will Increase Private Antitrust Enforcement in Montana

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Vol: 74, Issue: 2, Page: 399-415

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Price, Gale
antitrust; Antitrust and Trade Regulation; Law
commentary description
One approach Montana could take to increase private antitrust enforcement would be to enact an Illinois Brick repealer rejecting the indirect purchaser rule. Under ARC America, such a rule is not preempted by federal law. A repealer would allow Montana to counteract some of the negative effects of Illinois Brick, including the denial of compensation to injured indirect purchasers and the deferral of private enforcement to direct purchasers who may have less incentive to sue their suppliers. The MUTPA is well suited for such a repealer because it allows class actions and has clearly defined many anticompetitive behaviors as unlawful. Finally, by reducing the uncertainty about whether indirect purchasers can sue under the MUTPA, an Illinois Brick repealer would decrease the plaintiff’s risk in bringing an antitrust action and increase private antitrust enforcement in Montana.