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Second Circuit Review: Significance of Proximate Causation in ‘Efficient Enforcement’ Analysis

January 26, 2022

Litigation of counsel Martin Flumenbaum and firm Chairman Brad Karp’s latest Second Circuit Review column, “Significance of Proximate Causation in ‘Efficient Enforcement’ Analysis,” appeared in the New York Law Journal. The authors discuss two recent decisions in In re Am. Express Anti-Steering Rules Antitrust Litig. and Schwab Short-Term Bond Market Fund v. Lloyds Banking Group PLC concerning standing of plaintiffs to seek recovery under the Clayton Act for antitrust violations. In both cases, the court held that the plaintiffs did not have antitrust standing because they were not “efficient enforcers” of the Clayton Act due to the indirect nature of their alleged injuries, suggesting that the court views proximate cause as a significant factor, if not the primary factor, in determining whether a plaintiff fulfills the efficient enforcer requirement for standing. Litigation associate Timothy Beavers assisted in the preparation of this column.

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