The Sherman Act's Increasingly Long Arm

Courts grapple with questions raised by the "inelegantly phrased" Foreign Trade Antitrust Improvements Act of 1982.

As competition has become more global in nature, so too has the focus of U.S. antitrust enforcement. The Department of Justice's (DOJ's) number-one enforcement priority is to discover, punish, and deter international cartels that harm U.S. consumers. Private antitrust litigation in the United States is also increasingly focused on conduct straddling national borders. The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. § 6a, limits the extraterritorial reach of the U.S. antitrust laws by excluding from its purview all foreign conduct except for conduct "involving" (a) "import commerce" and (b) commerce with a "direct, substantial and reasonably foreseeable effect" on domestic commerce, import commerce, or certain export commerce. This statute's "convoluted language" and "awkward phrasing"1 have become the focus of increasing litigation attention, with many questions regarding its interpretation and application bubbling their way through the courts. This creates considerable uncertainty for companies operating in the international marketplace and may ultimately need to be resolved by the U.S. Supreme Court.

Jurisdictional or Substantive?

The FTAIA has historically been considered a jurisdictional statute imposing limits on the subject matter jurisdiction of the U.S. courts to consider claims involving non-U.S. commerce. That designation provides significant advantages for companies defending Sherman Act claims—allowing earlier resolution of FTAIA issues based on the court's analysis of actual evidence, rather than mere allegations, and requiring plaintiffs to bear the burden of establishing that the courts can entertain foreign commerce antitrust claims. However, several district courts have recently ruled that the FTAIA is non-jurisdictional, holding that the FTAIA instead serves to outline the elements of a Sherman Act claim involving foreign commerce. On August 17, 2011, the U.S. Court of Appeals for the Third Circuit became the first circuit to hold that the FTAIA is a substantive limitation.2 Defendants petitioned the U.S. Supreme Court for certiorari on this point but their petitions were denied on March 19, 2012.3 The same jurisdictional/substantive question was presented to the Seventh Circuit in Minn-Chem, Inc. v. Agrium, Inc.,4 but the original panel sidestepped the issue, electing instead to deal...