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What’s it to you? And what’s it to competition?: The unique requirement of antitrust injury

1/26/26

By: Cameron Regnery

Those who have driven past a lawyer’s billboard, or seen a late night commercial about Mesothelioma, are familiar with the popular question: “Have you been injured?” Injuries are the fuel that powers the American legal system. At its heart, every civil lawsuit involves a plaintiff suing a defendant to remedy some form of injury. But the existence of an injury is not merely a lawyer’s sales pitch, it is a constitutional necessity.

The Constitution only allows federal courts to decide “cases” and “controversies.” Courts are not town halls, legislative assemblies, or corporate board rooms; they are forums to resolve specific disputes between parties. To that end, a case or controversy only exists where the plaintiff suffers an “injury in fact.”[1] An injury in fact is one that is real and concrete, as opposed to abstract or speculative. Additionally, an injury in fact must be particular to the plaintiff, such that the plaintiff has a personal stake in the outcome of the case. As Justice Scalia succinctly put it, the injury in fact requirement asks: “What’s it to you?”[2]

In an antitrust case, however, merely suffering an injury in fact is not enough. The federal antitrust laws were enacted for a single purpose: to protect fair competition in the marketplace. Therefore, in addition to an injury in fact, a plaintiff suing under those laws must suffer an “antitrust injury.” As the name suggests, an antitrust injury is an “injury of the type the antitrust laws were intended to prevent.”[3] Because the antitrust laws are intended to protect competition, an antirust injury must result from anti-competitive conduct.

This additional injury requirement reflects the reality that an antitrust violation is multidimensional, with each dimension having one of three possible effects on competition. Some aspects of an antitrust violation may reduce competition, others may increase competition, and still others may have a neutral effect on competition.[4] For example, a monopoly may begin with a large manufacturer acquiring smaller manufacturers on the verge of bankruptcy, and end with that large manufacturer pricing its goods below-cost to squeeze its rivals out of the market. The beginning stage of the monopoly arguably increases competition, since the acquisition of the smaller manufacturers prevented those manufacturers from going out of business. Conversely, the ending stage of the monopoly reduces competition, since the large manufacturer’s rivals are driven out of the market by the manufacturer’s predatory pricing tactics.

“The antitrust injury requirement ensures that a plaintiff can recover only if the loss stems from a competition-reducing aspect or effect of the defendant’s behavior.”[5] In the above example, therefore, the rivals will have suffered an antitrust injury as a result of the large manufacturer’s below-cost pricing, since that predatory strategy cut the rivals out of the market and reduced competition. The rivals will not have suffered an antitrust injury as a result of the large manufacturer’s initial acquisition of the smaller manufacturers, however, since that acquisition increased competition. Even if that initial acquisition may have caused the rivals to suffer lost profits, decreased revenue, or other economic injuries in fact, “this kind of harm is the essence of competition and should play no role in the definition of antitrust damages.”[6] Indeed, the antitrust laws were enacted for the protection of competition generally, not individual competitors.[7]

The antitrust injury requirement is thus a useful weapon in the arsenal of defendants sued under the antitrust laws. The requirement applies to every antitrust lawsuit, both those seeking monetary damages[8] and those seeking non-monetary relief,[9] such as an injunction prohibiting certain behavior. Even blatant, per se unlawful restraints on trade do not automatically qualify a plaintiff to bring an antitrust lawsuit—the plaintiff must still prove its injury is tied to a competition-reducing aspect of that unlawful restraint. While harm to the plaintiff may suffice to create a “case” or “controversy,” it does not authorize an antitrust lawsuit unless the plaintiff’s injury is attributable to a broader harm to competition itself.[10]

Furthermore, the lack of antitrust injury exacts a heavier toll on a plaintiff than the lack of injury in fact. If a plaintiff has not suffered an injury in fact, the court lacks jurisdiction to even hear the case. In practice, this generally results in the court dismissing the case “without prejudice”—meaning that the plaintiff can re-file it if he later suffers an injury in fact.[11] But if a plaintiff has not suffered an antitrust injury, it is unable to even state a claim under the antitrust laws. In practice, this will often result in a dismissal “with prejudice,” barring the plaintiff from re-filing at a later date.[12] Thus, the absence of antitrust injury confers a finality that the absence of injury in fact cannot.

Understanding the limitations of antitrust injury is critical for defendants sued under the antitrust laws. A plaintiff that has suffered an economic loss may have suffered an injury in fact sufficient to open the doors of a federal courthouse. But unless that economic loss is attributable to some anti-competitive conduct by the defendant, the plaintiff will not have a valid claim under the antitrust laws.

The commercial litigation attorneys at Freeman Mathis & Gary, LLP are well-versed in antitrust matters and have litigated complex antitrust cases in federal courts throughout the United States.

For more information, please contact Cameron Regnery at cameron.regnery@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.

 

[1] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

[2] Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983).

[3] Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977), extended by, Cargill, Inc. v. Montfort of Colo. Inc., 479 U.S. 104, 113 (1986).

[4] Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 343-44 (1990).

[5] Id. at 344 (emphasis in original).

[6] Id.                                                                      

[7] Brown Shoe Co. v. United States, 370 U.S. 294, 320 (1962).

[8] Brunswick, 429 U.S. at 489.

[9] Cargill, 479 U.S. at 113.

[10] See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 535 n.31 (1983) (“Harm to the antitrust plaintiff is sufficient to satisfy the constitutional standing requirement of injury in fact, but the court must make a further determination whether the plaintiff is a proper party to bring a private antitrust action.”).

[11] See, e.g., Adams Outdoor Advert. LP v. Beaufort Cnty., 105 F.4th 554, 566 (4th Cir. 2024); Denning v. Bond Pharm., Inc., 50 F.4th 445, 452 (5th Cir. 2022).

[12] See, e.g., Hartig Drug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 268-72 (3d Cir. 2016); NicSand, Inc. v. 3M Co., 507 F.3d 442, 449-50 (6th Cir. 2007) (en banc).