The article begins with the premise that any failure to mitigate defense should aim to minimize the sum of three costs: the costs associated with inefficient behavior by defendants, the costs associated with inefficient behavior by plaintiffs, and the administrative costs of claim adjudication. If cost minimization is the goal, then whether a failure to mitigate defense exists, and the content of the antitrust plaintiff’s mitigation requirement, should differ depending on the type of damages the plaintiff is seeking to recover. The bulk of this article discusses how the defense should apply to different damages claims.The article proceeds as follows: part II sets up the model by briefly outlining the three sources of social cost affected by recognition of a failure to mitigate defense and the three types of damages antitrust plaintiffs typically seek to recover. Parts III, IV, and V then consider how a failure to mitigate defense would affect the relevant social costs in each of the three damage contexts. I conclude that courts should not recognize a failure to mitigate defense when the antitrust plaintiff is seeking to recover overcharge damages but should do so when the plaintiff is seeking recovery of lost profits, even if the profit losses are the result of alleged market foreclosure.
Thomas A. Lambert, The Failure to Mitigate Defense in Antitrust, 51 Antitrust Bull. 570 (2006)