In 1982, Congress enacted the Foreign Trade Antitrust Improvements Act (FTAIA) because it believed that, in the interests of international comity, U.S. antitrust jurisdiction over international commerce should be limited to conduct that affects the U.S. domestic market. The effect of the FTAIA was to insert a new section into the federal antitrust statutes, 15 U.S.C. § 6a, that specifically defined their extraterritorial reach. Unfortunately, the FTAIA’s Section 6a is largely viewed as poorly worded as exceptions to an exception with some ambiguous language. Consequently, after its enactment, the FTAIA has led to a host of litigation seeking clarity on the statute’s meaning. The last time the U.S. Supreme Court took up a question involving interpretation of the FTAIA was in 2004 — F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 158, 124 S. Ct. 2359, 159 L. Ed. 2d. 226 (2004). This week, on June 15, 2015, the U.S. Supreme Court declined petitions for certiorari in two cases seeking further clarity on the meaning of the FTAIA. Here is what happened and what it means for U.S. antitrust law.
As noted, there were two FTAIA cases seeking appeal to the U.S. Supreme Court, one by a victim of an anticompetitive conspiracy and the other by one of the perpetrators. First, the victim, Motorola Mobility, LLC (“Motorola”), asked the Court to review the Seventh Circuit’s ruling that the FTAIA barred claims by Motorola’s foreign subsidiaries for some $3.5 billion in damages they allegedly suffered after purchasing price-fixed LCD panels overseas for inclusion in products to be sold here in the United States. Second, AU Optronics Corp., the perpetrator, asked the Court to review the Ninth Circuit’s decision finding that the FTAIA did not bar the U.S. Department of Justice’s criminal case and resulting $500 million criminal fine against the company for price-fixing some of the same LCD panels overseas. These two decisions are seemingly at odds because the Ninth Circuit held that the perpetrator could be prosecuted here in the United States whereas the Seventh Circuit held that the victim could not seek civil recovery here in the United States.
As a result of the U.S. Supreme Court denying review, the decisions by (and conflict between) the Seventh and Ninth Circuits remain undisturbed. As a technical matter, a denial of review by the U.S. Supreme Court does not necessarily indicate agreement with the lower court of appeals; however, litigators will often cite such denials as a fact heightening the persuasiveness of the decision by the lower court. Here, however, with two seemingly inconsistent decisions, it appears the U.S. Supreme Court simply did not have four justices willing to tackle the FTAIA at this time. Thus, plaintiffs whose cases involve overseas anticompetitive conduct may be well served by selecting the Ninth Circuit as their venue rather than the Seventh Circuit, at least until this seeming conflict is resolved.