Much Ado About Injury: Making Sense Of FTAIA Circuit Split

Law360, New York (May 14, 2015, 10:11 AM EDT) -- It is not news that there is a circuit court split concerning the correct application of the Foreign Trade Antitrust Improvements Act[1]. Indeed, there have been circuit court splits concerning the FTAIA since its enactment in 1982. However, the recent seemingly contradictory FTAIA rulings in the Seventh Circuit Motorola Mobility case[2] and the Ninth Circuit Hsiung [3] (a.k.a. AU Optronics) case pertaining to the conduct of the same liquid crystal display cartel have generated much commentary and even resulted in dueling petitions for certiorari to the U.S. Supreme Court. The AU Optronics petition challenges the Ninth Circuit's ruling affirming corporate and individual criminal convictions based on the defendants' participation in a horizontal price-fixing conspiracy. Motorola's petition seeks reversal of the Seventh Circuit ruling dismissing the portion of its civil suit aimed at recovering overcharges paid by its foreign subsidiaries when they purchased price-fixed LCD panels directly from AU Optronics and its fellow cartelists outside the U.S. Both of these cases are discussed in more detail below....

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