Foreign Trade Antitrust Improvement Act of 1982 (FTAIA)

1
Foreign Trade Antitrust Improvement Act of 1982
(FTAIA)
General Rule Sherman 1-7 not apply to conduct
involving trade or commerce (other than import
trade or import commerce) with foreign
nations. Exception Two prongs 1.
Conduct has direct, substantial, reasonable
foreseeable effect on non-foreign trade or
commerce, import trade or commerce, or export
commerce of a person engaged in such commerce in
U.S., and 2. Such effect gives rise to
claim under Sherman 1 7.
2
Empagran S.A. v. F Hoffman-LaRoche,LTD (D.C. Cir
2003)
Basic Facts Ds, manufactures of vitamins,
conspired to fix vitamin prices around the world.
Ps were foreign purchasers of vitamins. Ps
claim was based on theory that FTAIA exclusion
not apply. Two arguments General FTAIA rule not
apply because limited to exports. Even if apply,
the domestic effects exception apply because both
prongs of test satisfied. How did D.C. Circuit
treat argument that FTAIA general rule limited
only to exports? Did D.C. Circuit conclude that
both prongs of exception satisfied? What was
rationale? How helpful was legislative history
to D.C. Circuit? Did Supreme Court agree with
D.C. circuit rationale? What position did DOJ
and FTC take? Why?
3
United States v. Aluminum Co. of America
(Alcoa) (1945)
What was significance of in-house production
ingot, secondary ingot refabrication from junk,
and off-shore ingot production? What was Hands
two step analytical process? Per Hand, is size
conclusive of finding illegal monopoly? How
relevant was intent to Hand? What impact did
power to raise ingot prices have on unlawful
monopoly reasoning? Why didnt District Court
bust up Alcoa?