Volume 78, Number 5

November 2003

Modeling the Effect of One-Way Fee Shifting on Discovery Abuse in Private Antitrust Litigation

William H. Wagener

Private antitrust litigation has been encouraged by the grant of attorney’s fees and treble damage awards to successful antitrust plaintiffs, but such pro-plaintiff provisions can prove to be costly because of the potential for abuse that these provisions create. In this Note, William H. Wagener focuses on the particular effects of granting an award of attorney’s fees to successful plaintiffs, also known as “one-way fee shifting.” Relying on modern economic analysis of litigation, he argues that the existence of one-way fee shifting in private antitrust litigation often eliminates a defendant’s ability to retaliate to overbroad and burdensome discovery requests by an antitrust plaintiff. Fee shifting, along with substantial increases in discovery costs and weak judicial safeguards against discovery abuse, creates a structure under which an opportunistic plaintiff can extract sizable settlements far greater than the expected award at verdict, regardless of the strength of the plaintiffs antitrust claim. Wagener argues that while promoting private enforcement of antitrust law is desirable, some reforms may be needed to deter such abuses in antitrust litigation. He concludes that nuisance litigation can be significantly reduced without unduly prejudicing legitimate antitrust claims through either eliminating or modifying the fee-shifting provisions in private antitrust litigation, or by instituting higher pleading standards for antitrust lawsuits than what the rules of civil procedure currently provide.