A Trend toward Filing Antitrust Claims and Tort Claims for Anticompetitive Conduct in State Court

Many attorneys accustomed to defending antitrust cases in federal court have observed that state enforcement authorities and attorneys for private plaintiffs have more frequently been filing complaints in state courts. In some respects, this trend reflects more favorable state substantive antitrust law and procedural and evidentiary advantages in state court. It also reflects recognition by plaintiffs attorneys that proving most antitrust claims in federal court requires expert testimony to establish market power and that many, if not most, private antitrust cases in federal court end with summary judgment for the defendant.

Plaintiffs attorneys are frequently electing to avoid filing claims altogether, preferring to assert claims for various common law and statutory torts in state court, where the prospect of reaching a jury is much higher than in federal court, and a reasonable possibility exists for an award of punitive damages which are equal to or greater than treble damages.