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From Sea to Shining Sea: A New Approach to Interpreting the Foreign Trade Antitrust Improvements Act

 |  April 7, 2014

Posted by Social Science Research Network

From Sea to Shining Sea: A New Approach to Interpreting the Foreign Trade Antitrust Improvements Act -Gerard F. Bifulco (Independent)

ABSTRACT: The Foreign Trade Antitrust Improvements Act was passed to govern the application of the Sherman Act to antitrust violations that occurred abroad. While the statute received little attention in its early years, public and private plaintiffs have recently begun to collect large fines and penalties under its jurisdiction. As these judgments continued to grow, the increasing focus on the FTAIA caused uneven development of the statute: while certain aspects of the FTAIA were defined and refined by judicial interpretation, other language in the statute remained underdeveloped.

This Comment focuses on the requirement within the FTAIA that conduct from a foreign entity must have a “direct, substantial, and reasonably foreseeable” effect on United States commerce. This section of the FTAIA forms the basis of the statute: the effect must give rise to the claim of the plaintiff and violate the Sherman Act to satisfy the FTAIA. The “direct, substantial, and reasonably foreseeable” requirement is greatly underdeveloped: some courts have interpreted certain words in the phrase, while others have provided no guidance as to the standard by which the requirement is judged. This underdevelopment presents many issues: courts are conflicted on how to evaluate the requirement, and the language is often ignored in rulings.

This Comment proposes a new interpretation of the “direct, substantial, and reasonably foreseeable” requirement of the FTAIA. By considering whether the conduct proximately causes the effect, creates a substantial effect based on price and volume considerations, and is reasonably foreseeable to an ordinary businessperson in the foreign entity’s market, this Comment’s interpretation will give businesses, practitioners, and judges a lens which will help clear up the FTAIA. This new interpretation provides courts with the means to interpret a section of the FTAIA that has largely been ignored by balancing previous judicial attempts at deciphering the statute with the intent of the Congresspeople who drafted the FTAIA. This unified approach to interpreting the FTAIA also provides an efficient remedy to the inefficiency created by contradicting interpretations of the statute.