CHAPTER XII
ANTITRUST AND INTERNATIONAL COMMERCE
A. Introduction
The application of U.S. antitrust laws to international trade or
commerce raises a myriad of complex legal issues, discoverability of far
flung evidence, conflicting choice of law, and competing national
interests. First, it raises fundamental questions concerning jurisdiction and
a country’s ability to prescribe rules of law governing persons and conduct
beyond national borders. Second, because antitrust cases and enforcement
increasingly cross international borders, U.S. courts need to contend with
the discoverability of information from abroad for use in U.S. legal
proceedings and vice versa. Third, the international dimension of
economic activity sometimes calls for the application of special
substantive rules not appropriate in the purely domestic context. Fourth,
antitrust is but one of a number of national policies affecting international
trade and other national policies may at times be in tension with antitrust
policies. Fifth, the competition policies of other countries are not always
in accord with U.S. antitrust policies and, even where they are,
multinational coordination of both enforcement and compliance can be
challenging. Cartel and merger enforcement often is international in scope,
and enforcement agencies have taken steps to balance the protection of
competitive markets with respect for international sovereignty. This
chapter discusses these and related issues.
B. Extraterritorial Reach of the Sherman Act and Related Issues
1. Sherman Act
a. Foreign Trade Antitrust Improvements Act (FTAIA)
(2) FTAIA: Federal Subject Matter Jurisdiction Limitation or Element of
a Claim?
In In re Foreign Exch. Benchmark Rates Antitrust Litig., the district
court denied defendants’ attempts to exclude as evidence communications
250 2024 Annual Review of Antitrust Developments
involving co-conspirators located outside the United States.1 The court
held that while the FTAIA limited those claims that may go forward under
the Sherman Act, it did not limit the evidence that is admissible to prove
those claims.2
(4) “Direct, Substantial, and Reasonably Foreseeable” Effects under the
FTAIA
In Iowa Pub. Employees’ Ret. Sys. v. Bank of Am. Corp., the district
court granted plaintiffs’ motion for class certification following
allegations of a wide-ranging conspiracy involving the stock loan market.3
Proposed class plaintiffs alleged they had to pay a higher price due to the
lack of competitive pricing available through multilateral platforms.4
Plaintiffs secured class certification after the court found the alleged
conspiracy created a common source of economic injury for class
members such that the FTAIA did not preclude a finding of predominance
under Rule 23(b)(3).5
In Subspace Omega, LLC v. Amazon Web Services, Inc., plaintiff
alleged that defendant had engaged in anticompetitive conduct by refusing
to enter into peer agreements with plaintiff.6 In granting defendant’s
motion to dismiss the amended complaint, the district court considered
defendant’s argument that plaintiff’s claims failed because they were
based on alleged foreign conduct that did not have the required effects on
U.S. commerce. The court disagreed, noting that defendant’s alleged
refusal to peer with plaintiff included exclusions from both U.S.-based
peering locations and peering locations abroad, and finding that to the
extent the FTAIA applied, plaintiff had sufficiently alleged the required
effect on U.S. commerce. The court emphasized that the focus of the
analysis is the location of the effects, not the conduct.7
1. In re Foreign Exch. Benchmark Rates Antitrust Litig., 2022 U.S. Dist.
LEXIS 160642, at *21-22 (S.D.N.Y. Sept. 6, 2022).
2. Ibid.
3. Iowa Pub. Employees’ Ret. Sys. v. Bank of Am. Corp., 2022 U.S. Dist.
LEXIS 117036, at *88-94 (S.D.N.Y. June 30, 2022).
4. Ibid. at *89.
5. Ibid.
6. Subspace Omega, LLC v. Amazon Web Services, Inc., No. 2:23-cv-01772-
TL, 2024 WL 5202517, at *1-2 (W.D. Wash. Dec. 23, 2024).
7. Ibid. at *12-13.
Antitrust and International Commerce 251
(3) Applicability of the Import Trade/Commerce Exclusion and the
Domestic Effects Exception Under the FTAIA
In In re Hard Disk Drive Suspension Assemblies Antitrust Litig., the
district court denied defendants’ motion for summary judgment, which
argued that the FTAIA precluded plaintiffs’ claims.8 The court held that
the import trade/commerce exclusion does not apply unless the defendant
is the importer and concluded that plaintiffs provided sufficient evidence
that overcharges were passed through the distribution chain to U.S.
consumers, potentially satisfying the domestic effects exception.9
(4) The Scope of the FTAIA in the Criminal Context
The district court in United States v. Van Avermaet considered the
FTAIA’s application in the criminal context and its jurisdictional
implications by focusing on whether the alleged conduct had a direct,
substantial, and reasonably foreseeable effect on U.S. domestic
commerce.10 The court’s findings affirmed that the FTAIA did not bar the
indictment, as the alleged conspiracy’s impact on U.S. commerce was
sufficient to bring the conduct within the Sherman Act’s reach.11
D. Defenses and Exemptions to Application of Antitrust Laws in
Foreign Commerce
2. Act of State
In Celestin v. Caribbean Air Mail, Inc., U.S. resident plaintiffs alleged
that multinational corporations conspired with Haitian officials to fix the
prices of remittances and telephone calls made to contacts in Haiti.12
Plaintiffs alleged that defendants disguised their agreement in formal
executive actions of the Haitian government.13 Citing the act of state
doctrine, the district court dismissed plaintiffs’ antitrust claim, finding that
8. In re Hard Disk Drive Suspension Assemblies Antitrust Litig., No. 19-md
02918-MMC, 2024 WL 1354466, at *32 (N.D. Cal. Mar. 29, 2024).
9. Ibid. at *19-32.
10. United States v. Van Avermaet, No. 21-cr-443-4, 2024 WL 278088, at *12-
19 (D.D.C. Jan. 25, 2024).
11. Ibid. at 8-9.
12. Celestin v. Caribbean Air Mail, Inc., 30 F.4th 133, 135 (2d Cir. 2022).
13. Ibid.
