In this issue:
We have two indisputable facts in this issue: The Foreign Trade Antitrust Improvements Act is, to be kind, muddled. And modern court decisions on federal pleading standards haven’t exactly been uniform. So what happens when the two collide, as in the recent Potash decision? Our authors have brilliantly highlighted the issues; but, as might be expected, have reached quite different conclusions. Plus there’s a bonus—given the complexity, we’ve added a resource providing reprints and downloadable copies of the key cases and legislation. And since we’re discussing extraterritorial matters, we’ve added a special interest article on a novel approach to untangling the thorny issue of how the EU should compensate cartel victims—without involving U.S. law.
Potash & the FTAIA
Recovery in the U.S. for Price Fixing Abroad: The Future of FTAIA Litigation
Defendants may find it more difficult to win early dismissal, and avoid expensive discovery, in antitrust cases involving foreign conduct affecting U.S. commerce. Alicia Batts & Keith Butler (Proskauer)
New Lessons for Pleading the FTAIA
Minn-Chem v. Agrium is the latest in a long line of opinions reflecting courts suspicions of private plaintiff efforts to expand the scope of private antitrust enforcement. Max Huffman (Indiana Univ.)
Minn-Chem Incorporated et al. v. Agrium Incorporated et al.: A Canadian Perspective on the Extraterritorial Application of U.S. Antitrust Law
Enforcement restraint is particularly appropriate in circumstances where the conduct at issue, insofar as Canada is concerned, was not illegal at all. Mark Katz & Erika Douglas (Davies, Ward)
A Tale of Two Panels: The Size of the Chancellor’s Foot in Text Messaging and Potash
Why was one traditional, well established plus-factors pleading plausible and a very similar one implausible? Chris Sagers (Cleveland State Univ.)
Resources”Potash, the FTAIA, and Pleading Requirements
An easy source to find the materials referred to in the NOV (1) Antitrust Chronicle issue on the Potash case.
EU Victim Compensation
A Trip Around the Cartel Victims Remedy Buffet
There is another possible approach”besides the Zen Platter, the Foie Gras-Stuffed Creampuff, and the ADR Health Food Box”which has received very little attention. Kent Bernard (Fordham Law)