TABLE OF CONTENTS

Preface
Acknowledgment

1 FEDERAL JURISDICTION AND VENUE
§1.1 Subject Matter Jurisdiction
§1.1.1 Basic Statutory Provisions
§1.1.2 Required Connection with Interstate or Foreign Commerce
51.1.3 Clayton Act
§ 1.1.4 Extraterritorial Applicarion
§ 1.1.5 Supplemental Jurisdiction
§1.2 Territorial jurisdiction - Venue and Service of Process
§1.2.1 Service of Process
51.2.2 Venue

2 RELATIONSHIP OF FEDERAL AND STATE COURTS
§2.1 Introduction
§2.2 Preemption
2.2.1 General
§2.2.2 State Laws Permitting Recovery by Indirect Purchasers
2.2.3 Statc Nierger Enforcement
2.2.4 Commerce Clause Preemption
2.3 Removal
2.3. 1 The Moitie Decision
§2.3.2 Removal on the Basis of Preemption
2.3.3 Removal on the Basis of "Artful Pleading"
2.4 Res Judicara
§2.5 Injunctions of State Proceedings: The Anti-Injuncrion Act
§2.6 Stays and Abstention
§2.7 Concurrent State Litigation by Non-Parties to the Federal Action

3 EXEMPTIONS
3.1 The Labor Exemption
3.1.1 Background and Basic Statutory Provisions
§3.1.2 Development of the "Statutory" Exemption for "Unilateral" Union Activities: Apex Hosiery, Milk Wagon Drivers, and Hutcheson
§3.1.3 Development of the "Nonstatutory" Exemption for Concerted Activities Involving Nonlabor Groups
3.1.4 Relationship with National Labor Policy and the Unfair Labor Practice jurisdiction of the NLRB
3.1.5 Agreements and Activities by and Among "Nonlabor Groups"
§3.1.6 Effect of Termination of the Collective Bargaining Agreement The Insurance Exemption
§3.2.1 Statutory Provisions
3.2.2. The "Business of Insurance"
3.2.2.1 Foundation Decisions
3.2.2.2 Application
3.2.3 Boycotts, Coercion, and Intimidation
§3.2.3.1 Foundation Decisions
§3.2.3.2 Application
3.2.4 Regulation
§3.2.4.1 Foundation Decisions
§3.2.4.2 Application The Agriculture Exemption
§ 3.3.1 Statutory Provisions
3.3.1.1 Clayton Act Section
3.3.1.2 Capper-Volstead Act Section
3.3.2 Who Is Protected?
§3.3.3 Combinations of Cooperarives
3.3.4 Effect of Vertical Integration
3.3.5 Protected Conduct
3.3.6 Effect of Monopoly Power
3.3.7 Jurisdiction of the Secretary of Agriculture Implied Exemptions and Primary Jurisdiction
§ 3.4. 1 General Principies
§ 3.4.2 The Relevance of Express Immunity Provisions
3.4.3 Conduct Not Subject to Regulatory jurisdiction
§3.4.4 Immunity Based on Regulatory Authority over the Practices in Question
§3.4.4.1 Gordon and NASD
§3.4.4.2 Immunity Based on Pervasive Regulation
§3.4.4.3 Immunity Based on Specific Regulatory Conflict
3.4.5 Immunity Based on Agency Approval of Conduct Under a "Public Interest' Standard of Review
3.4.6 The Significance of Agency Consideratiõn of Competitive Considerations
3.4.7 The Effect of Agency Disapproval of Anticompetitive Conduct
§3.4.8 Conduct That Es the Product of Private Business Judgment
§3.4.9 The Significance of the Agency's Limited Remedial Authority
3.4.10 Determination by the Court
3.4.11 The Primary jurisdiction Doctrine
3.5 The Keogh Doctrine
3.5.1 Introduction
3.5.2 The Keogh Doctrine: Originand Development
3.5.3 Defining the Scope of the Doctrine
§ 3.5.3.1 The Competitor/Customer Distinction
3.5.3.2 The Extent of Required Agency Approval
3.5.3.3 Antitrust Conduct Going Beyond Agency-Approved Tariffs or Rates
§3.5.4 Keogh Under State Law

4 GO\/ERNMENTAL IMMUNITY
§4.1 State and Local Government Immunity
§4.1.1 Introduction
§4.1.2 Pure StateActiõn
4.1.2.1 Ipso Facto Immunity
4.1.2.2 Who Is Ipso Facto Immune?
§4.1.3 State Regulation of Private Conduct
4.1.3.1 Parker, Midcal, and the Two-Prong Test
§4.1.3.2 Suits Against the Regulated Party
§4.1.4 Municipal Action
4.1.5 State Agency Action
4.1.6 Categorizing Defendants
4.1.7 The clear Articulation and Affirmative Expression Requirement
§4.1.7.1 How Specific Must the Policy Be?
4.1.7.2 Abuse of Authorization
4.1.7.3 Merits of the Policy
4.1.7.4 Source of the Policy
4.1.8 The Active Supervision Requirement
4.1.8.1 Who Must Supervise?
4.1.8.2 What Constitutes Active Supervision?
54.1.9 Characterizing the Doctrine: Preemption, Exemption of Immunity?
54.2 Local Government Antitrust Act 01: 1984
54.3 Federal Government Immunity
§4.4 Noerr-Pennington Imrnuniry
4.4.1 Foundation Decisions
4.4.2 Kinds of Activity Protected
4.4.3 Intent to Harm a Competiror
§ 4.4.4 Unprotected Private Restraints
4.4.5 Conspiracies with Privare Parties
4.4.6 Lawful Means and UnlawÍul Ends
4.4.7 The Sham Exception
4.4.8 Single Lawsuit or Proceeding as a Sham
4.4.9 Misrepresentations. Bribery, and Other Unlawful or Unethical Conduct
§4.4.10 Recovery of Damages Caused by Governmental Action
§4.4.11 Protection of Activities Reasonably Incident to Petitioning Activities
§4.4.12 Pattern of Unlawfill Conduct
54.4.13 Attempts to Influence Foreign Governments
§4.4.14 Attempts to Influence Commercial or Proprietary Activities
§4.4.15 Burden of Pleading and Proof
§4.4.16 Relationship of Noerr and Parker Irnmunities
4.4.17 Non-Antitrust Litigation

5 LIMITATIONS
5.1 Lirnitations Period
§5.2 Continuing Conspiracy
§5.3 Laches
5.4 Tolling Provisions
§ 5.4. 1 Fraudulent Concealment
5.4.2 Pendency of a Government Action
5.4.3 Class Actions

6 ANTITRUST "STANDING"
6.1 Introduction
6.2 Controlling Prinples
§ 6.2.1 Antitrust Injury: Brunswick v. Puebio
Bowl-O-Mat, Inc.
§6.2.2 Duplicative Recovery and Speculative Damages: illinois Brick Co v Illinois
§6.2.3 Antitrust "Standing": Blue Shield and Associated General Contractors
56.3 Application of ]trhe Illinois Brick Principle
6.3.1 lnjunctive Relief
§ 6.3.2 Cases Not lnvolving Passing-On Theories
§6.3.3 The "Control Exception"
§ 6.3.4 The "Vertical Conspiracy" Exception
§6.3.5 Pre-Emting Cost-Plus Contracts
§6.3.6 Application of Illinois Brick to Regulated Public Utilities
§6.3.7 Purchases from Nonconspirators
§6.4 Antitrust Injury
§6.5 Antitrust "Standing"
6.5 Relationship of Previous Standing Doctrine to Supreme Court's Current Mutifactor Approach
6.5.2 Application of the Multifactor Approach
6.5.2.1 Procedural Issues; Relationship to the Merits Determination
§6.5.2.2 The Relationship and Importance of the AGCCFactors
6.6 Standing in lnjunctive Actions
6.7 Standing of Consumers
§6.8 Standing of Competitors
§6.9 Standing in Merger Cases
§6. 10 Standing of Distributors
6.11 Standing of Brokers and Agents
6.12 Suits by Plaintiffs Who Are Neither Participants Nor Consumers in the Affected Markets
6.13 Standing in Cases lnvolving Alleged Breaches of Contract
§6.14 Standing of Unions and Emplovees
6.15 Standing of Shareholders and Creditors of Corporations
6.16 Others Suffering indirect or Derivative Injury
6.17 Standing of Potential Entrants
§6.18 Standing of Former Market Parricipants
§6.19 Relationship to Recoverable Damages

7 MANAGEMENT OF COMPLEX LITIGATION
§7.1 Multidistrict Litigation
7.1.1 Historical Perspective
7.1.2 Judicial Panel on Multidistrict Litigation
7.1.2.1 Composition and Powers of the Panel
7.1.2.2 Procedural Requirements
7.1.3 Standards Governing Transfer
7.1.3.1 The Decision Whether to Transfer
§7.1.3.2 The Decision Where to Transfer and the Effect of a Transfer Order
7.1.3.3 Remanding to the Transferor Court
§7.2 Class Actions
722.1 Certiflcation
§7.2. 1.1 Rule and Case Law Prerequisites
§7.2.1.2 Class Actions Maintainable
7.2.2 Case Management Concerns

7.2.3 Notice to Class Members
7.2.4 Communication to Members by Class Attorney
§7.2.5 Settlement Issues

8 JURY TRIAL AND SUMMARY JUDGMENT
8.1 Right to a jury Trial in Antitrust Actions General
8.2 Limitations on Jury Trial Right: The Complexity Exception
§8.3 Taking the Case from the Jury: Summary Judgment and Judgment as a Matter of Law
§8.3.1 Earlier Decisions Disfavoring Summary Judgment in Antitrust Cases
§8.3.2 Decisions Reversing the Presumption Against Summary judgment Antitrust Cases
§8.3.3 Summary judgment Principles Applicable to Federal Antitrust Cases After Monsanto and Matsushita
§ 8.3.4 Burden of Producing Evidence on Motion for Summary judgment
§8.3.5 Deterrnining Whethcr Therc Is a Genuine Issue of Material Fact
8.3.6 Right to A jury Determinarjon of the Existence of a Conspiracy
§8.3.6.1 Direct Evidence of Conspiracy
§8.3.6.2 Vertical Conspiracy Cases
8.3.6.3 Horizontal Conspiracy Cases Based on Circunstantial Evidence
§8.3.7 Judgment as a Matter of Law: Other Issues
§8.3.8 Suficiency of Expert Testimony to Create a Triable Issue of Fact

9 LIABILITIES AND REMEDIES
9.1Joint and Several Liability
§9.2 Contribution and Claim Reduction
9.3 Vicarious Liability
§9.4 Proof of Injury and Damages
§9.4.1 Business or Property Requirement
§9.4.2 "By Reason of" Requirement
§9.4.3 Standards for Proof of the Fact and the Amount of Damage
9.4.3.1 Recovery for lncreased Costs
§9.4.3.2 Recovery for Lost Profits of a Continuing Business
9.4.3.3 Recovery for Lost Profits of a Terminated Business
9.4.3.4 Recovery for Reduction in Business Value
§9.4.4 The Off setting Beneflt Rule
§9.5 Injunctive and Other Equitable Relief
§9.5.1 Preliminary Injunction
§9.5.2 Permanent lnjunction
9.5.3 Divestiture

10.ATTORNEYS' FEES AND COSTS
10.1 Purposes and Authority
10.1.1 Statutory Provisions: Private Damages Actions
§10.1.2 Statutory Provisions: Injunctive Actions
10.13 The Equitable Fund Doctrine
§ 10.1.4 Attorneys' Fees as Sanctions Determination of the Amount of the Award; Factors Considered
10.2.1 Methods of Calculation: Lodestar" and Percentage of Recovery Methods
§10.2.2 Determination of the Appropriate Percentage Award in a Common Fund Case
§10.2.3 Determination of Hours and Rates
10.2.4 Multipliers
§10.2.5 Impact of Hensley v Eckerbart, Blum v. Stenson, and City of Burlington v. Dague
§10.2.6 Effect of Partial Success
§10.2.7 Relation of Fees to Amount of Rccuvery
10.2.8 Fees where Recuvery Is Nonmonetary
10.2.9 Effect of Private Fee Agreements on a Fee Award
§ 10.2.10 Special Problems in Class Acrion Settlements; Allocarion of Award
§ 10.2.11 Government Attorneys Compensable Services
§ 10.3.1 Paralegals
510.3.2 Time Expended on Fee Application
§ 10.3.3 Travel Time and Local Counsel
10.3.4 Time on Appeal Procedure
10.4.1 Burden of Proof; Evidence
104.2 Hearings
§ 10.4.3 Appellate Review Costs
10.5.1 Items of Recoverable Costs: General
§ 10.5.2 Transcripts of Depositions and Trial Proceedings
§10.5.3 General and Expert Witness Fees
10.5.4 Artorney's Out-of-Pocket Expenses
§ 10.5.5 Amount of Recoverable Costs

11 CLAIM AND ISSUE PRECLUSION
§ 1.1 Introduction
1 1.2 Claim Preclusion
§ 11.2.1 Final Judgment "On the Merits"
§1 1.2.2 Defluition of a Cause of Action
§1 1.2.3 Effect of Federal Judgments in State Proceedings
§1 1 .2.4 Effect of State judgments in Federal Proceedings
§ 11.2.5 Effect of Continuing Conduct and Damages
§ 11.3 issue Preclusion
§11.3.1 Federal and State Proceedings
11-3.2 Non mutual Collateral Estoppel
11.3.3 Exceptions to Nonmutual Collateral Estoppel
§11.4 Questions of Law
§ 11.5 Preclusive Effect of Consent Judgments
§ 11.6 Preclusive Effect of Prior Guilty Pleas
§11.7 Preclusion in Class Actions
§ 11.8 Preclusive Effect of Administrative Determinations
11.9 Preclusive Effect of Government Decrees

Table of Cases
Table of Authorities
Index