Judge Posner Speaks on the FTAIA: Rejects Fermat’s Principle of Least Time

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James Martin, Jan 29, 2015

If one understands that Congress created a private right of action for victims of antitrust violations to seek treble damages as a way to deter cartel formation, then one would expect that someone should be permitted to seek damages for this conduct. As the Supreme Court wrote in Pfizer, treble damage remedies serve to deter violators, deprive them of the fruits of their illegality, and compensate victims of antitrust violations for their injuries. Denying a plaintiff injured by an antitrust violation the right to sue would defeat those purposes and permit price fixers to escape full liability for their illegal actions.

Not so in the Seventh Circuit, where the Court decided Motorola must deal with the consequences of its decision to use a global supply chain rather than some less efficient method of production and delivery. If the countries in which Motorola took delivery of the LCD panels did not have adequate antitrust laws, “these are consequences that Motorola committed to accept by deciding to create subsidiaries that would be governed by the laws of those countries.” The Seventh Circuit treated the antitrust laws as a business tort rather than a statute grounded in public policy.