Private Merger Challenges Under Section 16 of the Clayton Act: Caution Post-JELD-WEN

Private merger enforcement is a thorny corner of antitrust law. Private merger challenges pose considerable potential financial downside for industry because in many cases, the motivations of private plaintiffs in initiating a challenge do not align with the purposes of antitrust law. These actions are risky for plaintiffs as well because they are difficult to win. Plaintiff successes have been so uncommon that in a Fourth Circuit case decided in February of 2021, the court stated, “private suits seeking divestiture are rare and, to our knowledge, no court had ever ordered divestiture in a private suit before this case.”While claims brought under section 16 of the Clayton Antitrust Act of 1914 (Clayton Act)have been historically underdiscussed, the Fourth Circuit’s grant of divestiture to a private plaintiff in early 2021 affords us an opportunity to evaluate this oft overlooked corner of antitrust law. Should private plaintiffs be able to mold the shape of industries to such a degree?

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