Ambiguities Remain Despite 9th Circ. AU Optronics Ruling
Law360, New York (July 17, 2014, 5:40 PM EDT) -- One of the most important topics in cartel enforcement today is the extent to which the Foreign Trade Antitrust Improvements Act ("FTAIA") limits the extraterritorial reach of the Sherman Act. On July 10, 2014, the Ninth Circuit weighed in on this question by affirming a broad application of the Sherman Act in United States v. AU Optronics Corporation. The Ninth Circuit's ruling comes on the heels of two other appellate rulings — one by the Second Circuit and another, since vacated, by the Seventh Circuit — addressing the same issue. Taken together, these decisions suggest that: (i) the FTAIA is an element of a plaintiff's claim; (ii) foreign price-fixing that affects the United States may be analyzed under the per se rule; and (iii) price-fixing that affects import commerce is actionable under the Sherman Act. However, several ambiguities remain....
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