Unpacking Antitrust: How Do I Estimate Damages For A B2B Antitrust Violation?

• Published date: 28 March 2024
• Subject Matter: ntitrust/Competition Law, Antitrust, EU Competition
• Law Firm: Bona Law PC
• Author: Molly Donovan

Whether you have an offensive antitrust claim to assert against another business, or an antitrust claim is being asserted against your business, it can be helpful to put at least a ballpark dollar figure on the potential damages at stake.

For example, let's say you have an antitrust claim to assert against your competitor, but you're not sure it's worth it. There will be costs associated with asserting the claim'time and money'that should be weighed against your potential recovery. Is the claim large enough to call a lawyer and pay her fees? Would I really file a lawsuit? Many businesses view litigations and pre-litigation negotiations as investments, asking "should I make this investment given the size of the potential reward and the likelihood of achieving it?".

Conversely, if a competitor is asserting an antitrust claim against you, you need some understanding of your potential exposure so that you can determine what's reasonable to pay to make the claim go away (if anything)'and when to do that. Most antitrust disputes settle or are dismissed; very few go to trial given the risks and large dollar figures usually at issue.

Can I Estimate Antitrust Damages Without the Help of an Economist?

Yes and no. The only accurate way to estimate a damages value is with an econometric model constructed by a qualified economist. The estimates we're suggesting provide only an idea of the very approximate size of a potential damages award'which can be useful as you take the initial steps toward asserting a claim or defending against it.

How Do I Get Started?

You need to know that there are two types of antitrust damages available to claimants who are successful at a trial: lost profits and lost business value. Lost profits compensate the claimant for the income lost over a finite period. Lost business value compensates a claimant for income lost permanently.

Where the wrongful conduct causes a claimant's partial or total foreclosure from a market, a claimant may be entitled to recover both categories of damages, although there's no double dipping.

What's an Example?

In a real (non-antitrust) case involving a cruise line, the cruise line sued the makers of a valve that failed to remove microbes from the water, causing an outbreak of Leguinnaire's Disease on the ship. Three years after the outbreak, the cruise line was sold. The jury properly awarded $48 million in profits lost from the time of the outbreak to the sale and $135 million for the lost business value as of...