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A Standing Framework for Private Extraterritorial Antitrust Enforcement

Max Huffman

Indiana University Robert H. McKinney School of Law

SMU Law Review, Vol. 60, 103, 2007
U of Cincinnati Public Law Research Paper No. 06-15

Efforts by private plaintiffs to enforce the U.S. antitrust laws extraterritorially have become an enormous industry. A reflection of the challenges facing federal courts in this global age, F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran) held the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) precluded the assertion by U.S. courts of jurisdiction over claims by foreign plaintiffs alleging harm felt in wholly foreign commerce.

Empagran left an exception that undermines its general rule. Plaintiffs able sufficiently to show "the anticompetitive conduct's domestic effects were linked to their foreign harm" are excepted from the preclusion. This is the "Empagran exception."

The article is the first to propose a workable and consistent approach for applying the Empagran exception. The classical prudential antitrust standing analysis is readily imported into the extraterritoriality framework. Modified for extraterritorial application, the standing analysis includes consideration of comity and "inverse deterrence" - a twist on the under-deterrence rationale. The standing analysis permits courts flexibility to adjust for those and other factors perhaps not yet recognized. As the question how to define the Empagran exception works its way through the courts, the approach outlined here promises superior and consistent decisions.

Number of Pages in PDF File: 54

Keywords: antitrust, extraterritoriality, effects test, international trade, international law, subject matter jurisdiction, antitrust standing, prudential standing

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Date posted: August 23, 2006  

Suggested Citation

Huffman, Max, A Standing Framework for Private Extraterritorial Antitrust Enforcement. SMU Law Review, Vol. 60, 103, 2007; U of Cincinnati Public Law Research Paper No. 06-15. Available at SSRN: http://ssrn.com/abstract=925876

Contact Information

Max Huffman (Contact Author)
Indiana University Robert H. McKinney School of Law ( email )
530 West New York Street
Indianapolis, IN 46202
United States

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