In a case that rocked the tech world Monday, the Supreme Court ruled that iPhone owners could sue Apple for allegedly monopolizing the market for apps through the app store and jacking up prices.
Another ongoing lawsuit charges that real estate agents have illegally colluded to maintain their 6% commissions, even though the internet has allowed homebuyers to do more of the legwork themselves.
Both of those cases, which originated as civil actions brought by plaintiffs with the help of private attorneys, could save consumers millions of dollars. And as industries from airlines to telecommunications become more consolidated in part as a result of laissez-faire oversight by federal regulators, private litigation is sometimes the only defense against corporations exercising market power to enrich themselves, according to an analysis out Tuesday from the University of San Francisco School of Law and the American Antitrust Institute.
“Our concern is that the reason we have these problems that we have today with rising concentration and wage inequality issues is because public enforcement has been very lax,” said Diana Moss, president of the American Antitrust Institute, which published its commentary alongside a data-heavy report. “So private enforcement has been taking up some of the slack.”
Private antitrust lawsuits had recovered $19.3 billion in settlements between 2013 and 2018, the report found, with the largest amount of money awarded in 2018. A handful of blockbuster cases accounted for the total last year, including a $2.3 billion settlement negotiated with 15 of the world’s largest banks for fixing prices on the foreign exchange market, which lowers returns for investors like pension funds.
The analysis comes amid heightened awareness of mega-mergers and the far-reaching power of big tech companies, fueling calls from politicians like Elizabeth Warren that they be broken up. Aside from a few high-profile cases like the AT&T-Time Warner merger, the Trump administration’s Department of Justice has taken a less-aggressive approach to mergers and antitrust enforcement.
It’s not just the Trump administration, though. Public antitrust enforcement has been on the decline for decades now. The Justice Department filed an average of 43 civil cases per year in the 1970s — that was down to an average of 13 between 2008 and 2017, according the Department’s statistics.
Legal doctrine shifted in the 1980s, allowing more large mergers to survive scrutiny by the courts. Companies grew larger and more powerful, which economists have found to be at the root of rising markups across many industries.
It hasn’t gotten any easier to bring private actions either, and the aggregate number filed in US District Courts has also sunk since the 1970s. A series of rulings have narrowed the types of victims who are entitled to sue and increased the amount of evidence that plaintiffs have to offer in their complaints in order to survive a motion to dismiss, which may have depressed the total number of cases filed over the years.
“As markets get more concentrated, you should see a rise in cases, because there’s more potential for illegal activity,” said Sandeep Vaheesan, legal director for the Open Markets Institute, which favors stricter scrutiny of mergers. “The Supreme Court has been very hostile to plaintiffs’ class actions.”
Unlike enforcement actions by public agencies, private actions can win triple damages, leading to those eye-popping settlements. But they rarely force companies to divest whole divisions, and never carry criminal penalties, which only government prosecutors can impose.
Greg Asciolla is an attorney with Labaton Sucharow, which has pursued cases against generic pharmaceutical companies and banks for inflating the prices of drugs and complex financial products. In a more niche case, Asciolla is suing GE for allegedly locking up the market for gas anesthesia machines used in hospitals. (GE declined to comment on pending litigation.)
Despite being as busy as ever, he doesn’t think trial lawyers are acting as a deterrent for large companies, which tend to see even multi-million dollar settlements as just the cost of doing business.
“I don’t think that companies are going to get away with antitrust violations, because we and the Justice Department are extremely vigilant,” Asciolla said. “But do I think the conduct is going to stop? Unfortunately I see the same companies doing it over and over again — they’re recidivists. I think I’m going to have a job until they’re carting me out of here dead. I just don’t see it stopping.”
That’s why, he says, there’s no substitute for robust public enforcement.
“The company pays a huge fine and nobody goes to jail,” Asciolla said. “When more individuals see actual human beings going to jail, that might stop people from engaging in such conduct.”