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Eleanor Fox, Sep 17, 2014
There is a looming danger that judge-made exceptions from U.S. antitrust law for foreign conduct are swallowing the proscriptions of the Sherman Act against modern-style international cartels. The danger has raised its head in the context of input cartels and, in particular, in the case of Motorola Mobility v. AU Optronics in the Seventh Circuit and its sister cases in other circuits. The danger stems from a wrong move of the Supreme Court in Empagran, which has laid a path that misframes analysis of the Sherman Act’s reach.
To explain the point, I revert to pre-Empagran analysis of both the Motorola facts and the Empagran facts. I then show where Empagran went wrong and suggest that the Court never would have taken the tack it took if the Motorola fact-set had come first. I then suggest how to correct the error.