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The private antitrust action is authorized by section 4 of the Clayton Act.' The potential in these actions for recovery of treble damages and attorney's fees not only allows private persons to be compensated for their injuries but acts as a financial incentive for such enforcement.' Private enforcement was designed to obviate the necessity for expanded federal enforcement; 3 governmental (public) enforcement, which is sometimes selective and concerned with more flagrant violations, is thus supplemented by the private suit, which discourages antitrust violations by heightening the possibility that violators will be exposed and subjected to the deterrent effect of large damage awards.4 Private antitrust actions are therefore beneficial to society through their impact on those who might otherwise engage in anti-competitive business conduct. This impact is a necessary complement to public enforcement.

This article will concern itself with the question of whether a private plaintiff who has participated in the alleged antitrust violation or violations upon which suit has been brought, should be barred from seeking a remedy for these violations because of such participation. Specifically, the availability of the defense of in pari delicto to defendants in private antitrust actions will be discussed through a review of the decision of the Supreme Court of the United States in Perma Life Mufflers, Inc. v. International Parts Corp. which limited the use of in pari delicto, and several United States Court of Appeals decisions applying the Supreme Court's standard for the use of this defense.


Assistant Professor, University of Dayton School of Law; B.A., University of Akron, 1966; J.D., University of Akron, 1969. The author gratefully acknowledges the research assistance of Richard C. Berry, University of Dayton School of Law.

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