The Second Circuit, in the noted case, delineated the policy considerations in deciding whether to permit an antitrust defense in a contract action. These considerations are: whether enforcement would result in unjust enrichment; whether enforcement would aid and abet the alleged antitrust violation, and; whether the defense would complicate the action. The author contends that the court misapplied the policies set forth on the facts therein for there can be no unjust enrichment where an executory contract is in question; there is an aiding and abetting of a Sherman Act violation by enforcing the contract; and there is no complication of the contract action because the alleged violation is apparently susceptible to ready proof. Upon reaching this conclusion the author contends the antitrust defense should be available against the third party assignee.
Marc L. Faust,
Antitrust Violation as a Defense to Breach of Contract: An Expanded Policy Analysis,
30 U. Miami L. Rev.
Available at: http://repository.law.miami.edu/umlr/vol30/iss4/10