Discharged Employees: Should They Ever Have Antitrust Standing under Section 4 of the Clayton Act

Authors

John A. MacKerron III

Abstract

The possibility of an employee discharged for refusing to cooperate in his employer's antitrust violations being allowed standing to sue for treble damages under section 4 of the Clayton Act presents a serious challenge to antitrust standing doctrine. This difficulty was illustrated by two 1982 cases in which the Ninth Circuit, in Ostrofe v. H.S. Crocker Co., allowed standing to such an employee and the Seventh Circuit, in Bichan v. Chemetron Corp., denied standing. This Comment traces the development of antitrust standing doctrine in the circuits, the Supreme Court's indirect impact on that doctrine, and the Court's introduction of the concept of antitrust injury. The Comment briefly looks at the treatment of employee-plaintiffs in section 4 cases. The Comment then discusses and analyzes the Ostrofe decision, utilizing the Bichan decision as a contrast. The Comment criticizes the Ostrofe court for ignoring theper se distinction in its development of an unwieldy antitrust standing test. The Comment concludes that the Ostrofe court reached the correct result, but should have done so by applying an enlightened target area test that includes the per se or non-per se nature of the employer's antitrust violation as a key factor in both its antitrust standing and antitrust injury analysis.

Recommended Citation

John A. MacKerron III, Discharged Employees: Should They Ever Have Antitrust Standing under Section 4 of the Clayton Act, 34 Hastings L.J. 839 (1983).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol34/iss4/4