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Robert Connolly, Jan 29, 2015
I was pleased to have an article I wrote on the FTAIA cited and quoted from in the recent Motorola Mobility opinion. I agree with the decision in Motorola Mobility and I also believe that the decision was a fair interpretation that reached the optimal outcome for strengthening international cartel enforcement.
The initial Seventh Circuit holding, that the conduct in question did not “have a direct, substantial and reasonably foreseeable effect” on U.S. commerce, could have seriously jeopardized the enforcement efforts of the Department of Justice’s Antitrust Division. The Court could have reached a decision allowing Motorola Mobility to seek damages in U.S. courts for purchases made overseas by a foreign subsidiary, but that could have created resentment of the United States as the world’s only cartel cop that mattered. (See Section II, below.) The decision to hold only that Motorola Mobility’s claim did not meet the FTAIA’s “gives rise to” requirement was a wise compromise from a policy perspective. Here’s why I think so.