Klor's, Inc. v. Broadway-Hale Stores, Inc.

I. The Private Plaintiff in AntiTrust Litigation.

Section 4 of the Clayton Act provides:

Passing for the present an examination of what “thing” is forbidden, we note a tendency in some courts to narrow the apparent scope of this statute due to concern with the severity of the penalty.

In a recent case this Court said:

Of more importance is what the Supreme Court has said. In reversing an antitrust case from this Circuit in 1957, that Court admonished the trial and appellate federal courts that:

With these principles in mind, we proceed to an examination of what is forbidden by the antitrust laws, as stated in Section 4 of the Clayton Act.

The Sherman Act’s first and second sections are relied on by the pleadings in this case.

Does the Sherman Act mean every contract, and every restraint, or must it be interpreted? Must it be aided by a Rule of Reason, and if so, what is that Rule of Reason? The problem is not a new one, nor is it easy. Not only do competent judges disagree — they frequently reach similar destinations by differing circuitous routes.

Suffice it to say that from a period shortly after the early pronouncements of our Supreme Court which made the Sherman Act a…