A recent district court order finds that JSAs can serve a legitimate purpose of controlling parties’ exposure and preventing coercive settlements.
Antitrust conspiracy claims pose significant monetary risks, including treble damages, attorney’s fees, and joint and several liability without a right to contribution. In practice, these risks incentivize defendants to settle such claims early regardless of their validity or an individual defendant’s relative culpability. In order to eliminate or soften the impact of these risks, defendants sometimes enter into judgment sharing agreements (JSAs). However, critics say JSAs are at odds with Congress’s intent to maximize deterrence for antitrust violations, and that they violate the antitrust laws in and of themselves.
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