In an expert analysis article published by Law360, White & Case Antitrust partner Michael Hamburger and associate Holly Tao examine developments with Article III standing in antitrust class actions, and outline the type and concreteness of harm plaintiffs must present in order to establish their standing in such cases.
Article III standing consists of three elements: The plaintiff must have suffered an injury-in-fact; there must be a causal connection between the injury and the conduct; and it must be likely that a favorable decision on the merits will redress the injury.
The article focuses on the first element and discusses recent cases defendants successfully challenged whether plaintiffs suffered any concrete, particularized harm. The attorneys conclude that, "While concrete economic harm satisfies Article III's injury-in-fact requirement in antitrust cases, litigants may still be able to challenge whether economic injury has occurred. Further, where plaintiffs seek injunctive relief based on alleged prospective harm, defendants should use discovery to probe whether evidence establishes that imminent injury is likely to result from the challenged conduct."
"And in all cases," they argue, "counsel should dig into the plaintiff's files to determine whether that plaintiff's theory of injury is supported by the facts."
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