Antitrust 1 Prof. E. Fox Fall 2004 1 I. Introduction to Antitrust Law 4 a. General Background 4

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International Concerns

  1. Alcoa Doctrine / Effects Doctrine

  • Sherman Act applies to foreign actors if the anticompetitive act affects U.S. commerce and the effects are more than “insubstantial ripples”

  • Modified Alcoa Test – (j’n) requires that the foreign Δ’s conduct have a direct, substantial and reasonably foreseeable effect on U.S. commerce; courts also balance foreign contacts and interests (exercise of foreign j’n) against U.S. contacts and interests

  • Hardford Fire Ins. Co. – existence of foreign law that allowed a practice unlawful under U.S. law d/n create a conflict of the sort that would require a dismissal of the case from U.S. j’n

  • International Reaction  expansive reach of U.S. antitrust law, liberal U.S. discovery practices and risk of enormous monetary damages triggered angry reactions; i.e., “blocking” statutes

  • Alcoa Defenses

  • 1) Foreign sovereign immunity

  • 2) Act of state – cannot question validity of the act of a sovereign taken on its own territory

  • 3) Foreign sovereign compulsion – if a foreign sovereign compels its own national to do an act, particularly on its own territory, the performance of the act is not a violation of U.S. law
      1. Jurisdiction and Enforcement – Empagran

  • Export Trading Company Act

  • A company may get a certificate of review exempting it from U.S. antitrust laws w/respect to activities described in the certificate (must prove that their export activities will not lessen competition in the U.S. or substantially restrain the export of any competitor)

  • Foreign Trade Antitrust Improvement Act of 1982

  • Sherman Act and FTC Act d/n apply to non-import U.S. trade or commerce w/foreign nations, unless the conduct has a direct, substantial and reasonably foreseeable effect on U.S. commerce or the export trade of a person engaged in such trade in the U.S.  antitrust laws d/n apply where only foreign competitors or consumers are hurt

  • Empagran v Hoffman-LaRoche (2004)

  • Issue: whether FTAIA precludes actions unless π shows that injuries arise from anticompetitive effects on U.S. commerce; or, is it enough for that the anticompetitive effects gives rise to a claim

  • D.C. Cir.: allowed subject matter j’n and standing for injuries suffered by a foreign π in a foreign j’n if there are possible parallel injuries in U.S.

  • Rational  reciprocity; increased deterrence and efficient enforcement of U.S. antitrust laws

  • S. Ct.: no j’n where significant foreign anticompetitive conduct w/an adverse domestic effect and an independent foreign effect give rise to the claim; FTAIA excludes SA from preventing anticompetitive conduct if adverse foreign effect is independent of adverse domestic effect

  • Comity – expansive rule would prevent foreign j’ns from enforcing their antitrust laws; cannot conduct an ad hoc analysis to extend j’n b/c antitrust litigation is too complex

  • Congress intended FTAIA to clarify, perhaps limit, but not expand the Sherman Act’s scope

  • U.S. gov’t may have standing to recover on behalf of foreign competitors, uncertain

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