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Justin Anderson, Bill Michael and Jane O’Brien Publish Article in Law360

December 21, 2021

Litigation partners Justin Anderson, Bill Michael and Jane O’Brien co-wrote an expert analysis article, “2nd Circ. Ruling Offers Key Antitrust Takeaways On Standing,” published in Law360 on December 21. The authors discussed a recent Second Circuit decision in In re: American Express Anti-Steering Rules Antitrust Litigation, in which the court held that a putative class of merchants that did not accept American Express cards lacked standing in their antitrust claims against AmEx for damages allegedly arising out of acceptance of non-AmEx cards. The court found that their alleged injuries were not directly caused by the defendants, and better enforcers of the antitrust laws existed.

“This decision illustrates the importance of proximate causation in the analysis of antitrust standing. Indeed, here it was dispositive for the efficient enforcer inquiry,” the authors wrote.

“Whether the plaintiffs can establish proximate causation — by alleging that an injury is both direct and that no other potential plaintiff could allege a more direct injury — has been increasingly subject to judicial scrutiny as a threshold issue in putative antitrust class actions,” they added. “The recent AmEx opinion and the others applying similar reasoning suggest that courts will be particularly skeptical of complicated or attenuated theories of antitrust harm.”

Practice management attorney Mark Laramie and litigation associates Michael Donohue and Kelly Garcia assisted in the preparation of this article.

» read the article

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