The antitrust standing doctrine, which is now more than three decades old, faces new challenges brought on by a shift in our understanding of competition. With the growth of the Internet, mobile telephony and other research and development-intensive industries characterized by rapid product cycles, antitrust has embraced a more sophisticated model of competition. Although courts have begun to apply this new perspective to substantive antitrust doctrine, they are only beginning to grapple with these issues in the antitrust standing context. Two aspects — network effects and innovation — of what is often termed the “new economy” have the potential to alter antitrust standing analysis.
Section 4 of the Clayton Act provides that “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore…and shall recover threefold the damages by him sustained.” Courts initially interpreted this provision to provide a private right of action to anyone who was injured as a proximate result of an antitrust violation. Some practitioners viewed this broad interpretation as overburdening the federal courts with antitrust claims and permitting plaintiffs to recover damages for harms unrelated to the purposes of the antitrust laws.
