On April 5, 2022, the Fifth Circuit revived an effort by a competitor-plaintiff to weaken one of the core elements of antitrust standing: “antitrust injury.” The decision was a setback for WLF, which urged affirmance of the federal trial court’s dismissal. The case arose from Pulse Network’s lawsuit against Visa, Inc., claiming that Visa’s debit-network-pricing strategies are exclusionary and violate federal antitrust laws. The district court rightly held that Pulse could not sue because it lacks antitrust injury—that is, even assuming that Visa’s conduct violates the antitrust laws (which Visa very much disputes), Pulse was not injured by any anti-competitive aspect of Visa’s conduct. In its brief, WLF argued that Pulse’s theory of antitrust injury would make it much easier for struggling competitors to pursue litigation as a business strategy, bogging down thriving companies in meritless but time-consuming and expensive antitrust litigation. WLF’s brief was joined by leading antitrust scholars Richard A. Epstein and Geoffrey A. Manne.
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