Lawsuits in State Court Under State Antitrust Laws

Some state antitrust statutes are considered by plaintiffs attorneys to provide more favorable theories for recovery than are available under federal antitrust statutes. Other state antitrust statutes are directly modeled after federal statutes ^[29] and are intended to be interpreted consistently with federal court interpretations of those statutes. ^[30] State antitrust statutes typically eliminate the federal requirement that the activity or conduct affect interstate or foreign commerce. ^[31]

Many plaintiffs attorneys believe that their state law antitrust claims have a better chance of being decided by a jury in state court than in federal court. Even antitrust claims based on conduct such as horizontal price-fixing , which is illegal per se under federal antitrust law and under most state antitrust laws, require proof of an illegal agreement or conspiracy. A plaintiffs conspiracy evidence which would not be sufficient to survive a motion for summary judgment under the standards articulated by the Supreme Court in the trilogy ^[32] may, nevertheless, be sufficient under less stringent summary judgment standards established by state supreme courts.

Moreover, most antitrust violations require proof of a relevant market and sufficient power in the relevant market to affect prices. In antitrust cases in federal court, the relevant market and market power must be established by expert testimony, which meets the tests of reliability announced in Daubert v. Merrill Dow Pharmaceuticals, Inc., ^[33] now embodied in Rule 702 of the Federal Rules of Evidence. Many state courts, including those in Florida, apply less rigorous standards for admissibility of expert testimony than are applied in federal court.

^[29] See, e.g., §§ 542.18 and 542.19, Fla. Stat.

^[30] See , e.g., § 542.32, Fla. Stat.

^[31] See , e.g., § 542.31, Fla. Stat.

^[32] Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

^[33] 509 U.S. 579 (1993)