Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/17

 The Supreme Court has issued several decisions designed ostensibly to rein in those cases. But to put it bluntly, I worry that the Supreme Court is not only modifying procedural rules to cabin the private plaintiff’s bar, but that it is curbing the substantive rules as well. Since 2004, the Supreme Court has decided ten antitrust cases – not one of those cases was brought by the government. This means that the vast majority of substantive antitrust law is being made in cases involving private plaintiffs. Notwithstanding all of that, I think the Court is on to something and that we, as prosecutors, should take our discretion seriously and only bring those cases where we have reason to believe there is real harm occurring and where, if it cannot be brought under Section 5, we recognize all of the effects – including supposed chilling effects and follow-on class actions – that may result from filing a complaint.