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Seventh Circuit paves way for increased application of U.S. antitrust laws to foreign conduct

09 July 2012

Antitrust, Competition, and Economic Regulation Alert

On 27 June 2012 the U.S. Court of Appeals for the Seventh Circuit answered several important questions about the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA). That act, 15 U.S.C. § 6a, dictates when the U.S. antitrust laws may apply to anticompetitive conduct occurring outside the United States but having an effect in the United States. In Minn-Chem, Inc. v. Agrium Inc., No. 10-1712 (7th Cir. 2012) (en banc) (Potash II), the Seventh Circuit resolved three issues under the statute. First, the court held that the provisions of the FTAIA are substantive elements of an antitrust claim relating to foreign commerce. Second, the court held that the provisions of the FTAIA do not govern “import commerce.” Finally, and most significantly, the court interpreted the FTAIA’s provision that allegedly anticompetitive foreign conduct have a “direct” effect on commerce in the United States to require only a “reasonably proximate” causal link between the alleged anticompetitive conduct and its putative effects on U.S. commerce. In doing so, the court rejected the Ninth Circuit’s stricter interpretation of the FTAIA, which requires that the alleged effect be an “immediate consequence” of the putatively anticompetitive conduct. Under this decision, it is now easier, at least in the Seventh Circuit, for both the U.S. government and private plaintiffs to challenge foreign conduct under the U.S. antitrust laws.

Read: "Seventh Circuit paves way for increased application of U.S. antitrust laws to foreign conduct"

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