An American Perspective: Comment on the Articles By J.J. Camp, Donald Houston, and Jeanne Pratt

• Author: Joseph P. Bauer
• Pages: 317-323

317

AN AMERICAN PERSPECTIVE:

COMMENT ON THE ARTICLES BY J.J. CAMP,

DONALD HOUSTON, AND JEANNE PRATT

Joseph P. Bauer*

A. INTRODUCTION

In this comment, I would like to draw some comparisons to the

approaches that we have taken in the United States to some of the issues

that have been raised in the provocative and informative articles by J.J.

Camp, Donald Houston, and Jeanne Pratt. I will begin with Mr. Camp’s

discussion about some of the issues in negotiating and obtaining judicial

approval for class counsel fees.

B. CLASS COUNSEL FEES

First, a preliminary observation. Unlike the situation in Canada, where

there is some variation among the rules in the different provinces, in

the United States questions regarding class actions in antitrust cases in

general, and more specifically issues relevant to attorney’s fees in those

actions, are governed principally by federal law. Where the plaintiff asserts

a claim that the defendant or defendants violated the federal Sherman Act

or Clayton Act,1 and seeks treble damages as authorized by section 4 of

the Clayton Act,2 the federal courts have exclusive subject matter jurisdic-

tion.3 The most likely situation for an action to be brought under state

law is a claim by indirect purchasers, who are barred from bringing an

* Professor of Law, Notre Dame Law School; B.A., University of Pennsylvania,

1966; J.D., Harvard Law School, 1969.

1 15 U.S.C. §§ 1–7 and 15 U.S.C. § 12–27 respectively.

2 15 U.S.C. § 15.

3 See, for example, Marrese v. American Academy of Orthopaedic Surgeons, 726

F.2d 1150 at 1153 (7th Cir. 1984), rev’d on other grounds 470 U.S. 373 (1985);

Kurek v. Pleasure Driveway & Park Dist. of Peoria, Illinois, 583 F.2d 378 at 379

(7th Cir. 1978), cert. denied, 439 U.S. 1090 (1979).