Comity, Domestic Injury, and the Metaphysics of the FTAIA

Abstract

The "domestic effects" exception of the Foreign Trade Antitrust Improvements Act (FTAIA) provides that the Sherman Act applies extraterritorially to non-import foreign commerce only if it has a direct, substantial, and reasonably foreseeable domestic effect in the United States, and that effect "gives rise to a claim" under the U.S. antitrust laws. After the Supreme Court's holding in Empagran, several lower courts have held that, where a plaintiff claims foreign harm that succeeds a U.S. domestic effect, the plaintiff must show that the domestic effect proximately caused the foreign harm. This article explores whether, where a plaintiff claims foreign harm that precedes a U.S. domestic effect, it is reasonable or advisable to hold the plaintiff to the same standard.