The Skinny on Recent Antitrust Decisions in the Federal Courts of Appeals

In Litigation, US Courts of Appeal by Adam FeldmanLeave a Comment

The definition of antitrust laws begins by detailing “acts adopted by Congress to outlaw or restrict business practices considered to be monopolistic or which restrain interstate commerce.”  This broad definition shows how antitrust law may filter into many other legal areas related to business and commerce. The purpose of this post is to examine antitrust decisions by the United States Courts of Appeals. Since antitrust law bleeds into so many other legal areas, case selection was no simple task.  A dataset was developed using Westlaw’s opinions coded as antitrust dating from in the federal appeals courts dating from January 1, 2021 through March 25, 2021. The set initially encompassed 106 cases, but 22 cases were removed for not conforming to the contours of antitrust law or for not providing a clear victorious party.

An example of a case removed from the initial set of 106 cases is United States v. Wehrle (CA7). This is much more a criminal justice case as it begins, “After detecting an internet protocol address downloading child pornography, police executed a warrant to search Lance Wehrle’s home. They seized hard drives and digital devices that contained over one million photos and videos of child pornography. The search also turned up lascivious photos taken in his home depicting the seven-year-old nephew of Wehrle’s friend.”

Conversely, BanxCorp v. Bankrate (CA3) provided an example of a properly coded antitrust case. Part of this case contains the common antitrust , “BanxCorp’s inability to define the relevant market also proved fatal to both its attempted monopolization and Clayton Act claims. Absent a proper market definition, BanxCorp could not prove Bankrate had “a dangerous probability of achieving monopoly power” within the relevant market, and its attempted monopolization claim fails.”

The context of antitrust litigation is provided by the statistical tables.  Here we find the relative number of both civil appeals per circuit for 2020 and appeals coded as antitrust under federal question jurisdiction. The antitrust cases are only those coded as purely antitrust in the federal dockets and so constitute a smaller set than provided by Westlaw.

From the circuits we see a similar number of antitrust appeals (on the right) in the Ninth and Second Circuits and then a big drop off to the Fifth and Fourth Circuits which come up next in the graph.  The circuits’ relative numbers of antitrust cases obviously do not track perfectly with the relative total number of appeals per circuit. The next graph shows the number of antitrust cases per circuit in the 2021 dataset.

While the Ninth Circuit still comes out with the most cases so far. In this dataset, the Third, Fourth, and Eleventh Circuits are all not far behind.

The more intriguing findings come from the analysis of the parties’ relative successes in the cases. In these cases, the plaintiffs from the courts below or those bringing charges of antitrust violations lost most of the decisions (the number of decisions correlating to the percentages are in parentheses).

What is the cause for the disparity in results? Although the verdict is still out there are several possibilities worth investigating. One possibility is that the panel compositions are different in cases favoring plaintiffs than in cases favoring defendants.  Panel composition, especially the parties of appointing president of the judges is correlated with judicial ideology.[1]Epstein, Lee, William M. Landes, and Richard A. Posner. The behavior of federal judges: a theoretical and empirical study of rational choice. Harvard University Press, 2013.

Panels in ten of the 13 circuits had more republican than democrat judges. This correlates fairly closely with the decisions for plaintiffs versus decisions for plaintiffs in the pie chart.  There were only two circuits with more decisions for plaintiffs than decisions for defendants.

The First Circuit had both more democrat judges on the panels and had more decisions for plaintiffs than for defendants. The other circuit with more decisions for plaintiffs than defendants was the D.C. Circuit, which had a 2:1 ratio of republican to democrat judges on the panels. The United States Supreme Court Database codes pro-competition (the plaintiff side in antitrust cases) as liberal and since judges appointed by democrats tend to be correlated with liberal rulings, we might expect more pro-plaintiff rulings from such judges.

Even with the bevy of judges on the Federal Courts of Appeals (not to mention senior judges and district court judges sitting by designation), several judges sat on multiple panels in the 84 case set. Judges that sat on three or more panels in the set are displayed in the graph below.

Two judges from the Fourth Circuit, Judges Quattlebaum and Gregory, sat on four panels of the 30 or on 14% total Fourth Circuit panels.  Judge Eid from the Tenth Circuit also sat on four panels or on almost 27% of the Tenth Circuit panels.

This rich dataset may be further developed with additional cases. Future analyses might look in greater detail at the decisions of particular judges. Additionally, attorneys may be added to the set to examine if certain lawyers are particularly successful in such cases.

Adam runs the litigation consulting company — Optimized Legal Solutions LLC. For more information write Adam at

Find him on Twitter: @AdamSFeldman

Click here to view data from the post


1Epstein, Lee, William M. Landes, and Richard A. Posner. The behavior of federal judges: a theoretical and empirical study of rational choice. Harvard University Press, 2013.

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