Restitution on behalf of indirect purchasers: Opening the backdoor to Illinois Brick

In the Illinois Brick Co. v. Illinois case, the US Supreme Court held that indirect purchasers are not injured within the meaning of the federal antitrust laws. Thus, for over 20 years, Illinois Brick has barred indirect purchasers from recovering damages in antitrust cases. Now, by permitting the Federal Trade Commission to proceed with its claim for restitution, the court in FTC v. Mylan Laboratories Inc. appears to have opened the backdoor through which indirect purchasers may recover for antitrust violations. Opening this door risks giving rise to the very problems that the Supreme Court sought to avoid in Illinois Brick: multiple liability for defendants, complexity, and discouraging private antitrust suits. In addition, the Mylan court permitted states with Little FTC Acts that prompt courts to follow interpretations of federal law, or that permit the state to seek equitable relief, to seek restitution on behalf of indirect purchasers also. It is concluded that the Mylan court wrongly concluded that the FTC could recover equitable monetary relief and erroneously assumed that the FTC could seek such relief on behalf of indirect purchasers.