“If You Never Did, You Should”: State Equitable Remedies for Antitrust Violations

Section 16 of the Clayton Act authorizes “injunctive relief . . . against threatened loss or damage” due to an antitrust violation “under the same conditions and principles as injunctive relief against threatened conduct . . . is granted by courts of equity [.]” While State enforcers and other plaintiffs have long turned to this provision for non-monetary relief to redress anticompetitive conduct, the Supreme Court’s initially expansive construction of Section 16 and other federal laws has narrowed in recent decisions. Facing this potential retrenchment in federal remedies, antitrust enforcers should consider the laws of many individual States, which offer alternative, additional remedies beyond traditional injunctions and damages. This paper summarizes Supreme Court developments and explores State-law remedies, some grounded in equity practice and others expressly included in State antitrust and consumer protection laws. The paper also presents a sampling of decisions from jurisdictions throughout the country recognizing the authority of State Attorneys General or other government officials to secure equitable relief extending to both residents and non-residents of the State. 

By Jay Himes, Jeremy Kasha & Daniel P. Weick^[1]

I. INTRODUCTION

Section 16 of the Clayton Act, in pertinent part, authorizes persons “to sue for and have injunctive relief . . . against threatened loss or damage by a violation of the antitrust laws . . . when and und