On the Overcharge Method as a Measure for Antitrust Damages

Victims of antitrust violations can recover their damages in court. Yet, the quantification of antitrust damages and to whom they accrue is often complex. An illegal price increase somewhere in the chain of production percolates through to the other layers in a sequence of partial pass-ons. The resulting reductions in sales lead to additional damages affecting downstream (in)direct purchasers as well as upstream suppliers. U.S. civil antitrust litigation is largely concerned with direct purchaser claims for (treble) damages calculated on the basis of the overcharge. Similarly simple best practice rules are emerging in Europe. In this paper, we show that the overcharge method is a poor measure of the true antitrust injury inflicted, even when the but-for world is exactly characterized.