An american perspective: comment on the articles by J.J. Camp, Donald Houston, and Jeanne Pratt

• Author: Joseph P. Bauer
• Profession: Professor of Law, Notre Dame Law School; B.A., University of Pennsylvania
• Pages: 317-323

AN

AMERICAN

PERSPECTIVE:

COMMENT

ON THE

ARTICLES

BY

JJ.

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.

ofPeoria,

Illinois,

583

F2d

378 at 379

(7th

Cir.

1978),

cert,

denied,

439

U.S.

1090

(1979).

317