Lawsuits in State Courts Asserting Common Law Tort Claims

For many years , plaintiff's attorneys were attracted to filing private actions for violations of federal antitrust laws by the automatic trebling of damages and recovery of attorneys fees which are awarded to successful plaintiffs. ^[34] These remedies are often available in state antitrust statutes. ^[35]

The lure of treble damages and attorney's fees are not enticing when their recovery is improbable. Plaintiffs attorneys frequently forego asserting antitrust claims altogether and file state court lawsuits which assert common law tort claims, such as tortuous interference with advantageous business relations, arising from defendants anticompetitive conduct. Such common law tort claims usually permit the plaintiff to recover punitive damages if the plaintiff can convince a jury that the defendants conduct was willful and malicious.

By filing a claim asserting a common law tort claim in state court, the plaintiff can avoid the following burdens of suing for violation of federal antitrust law:

Proof of market power.
Proof of antitrust injury .
The summary judgment standards of the trilogy.
If expert testimony is offered by the plaintiff, the reliability requirements of Fed.R.Evid.702.

Finally, lawsuits in state court often progress faster than lawsuits in federal court, and formal aspects of federal practice, such as the requirement of a written memorandum supporting or opposing a motion, are not applicable .

^[34] See § 4 of the Clayton Act, 15 U.S.C. § 15 (2000)

^[35] § 542.22(1), Fla. Stat.