In years past, the focus of private international antitrust disputes was the United States. Over a century of experience, treble damages, class actions and the American rule for attorneys’ fees – plus robust enforcement by the Antitrust Division – have combined to make the United States the natural hub for private cases. That is still true today, but to a lesser extent because emerging private remedies and processes have made European jurisdictions much more viable, and U.S. courts are taking an increasingly close look at the limits of their jurisdiction. The result is litigation increasing across newly empowered jurisdictions: sophisticated and well informed coordination, case management and overarching strategy now are critical.
While the focus of this piece is coordination of global private antitrust litigation, it is probably worthwhile briefly to address the developments that brought us to where we are today. In the U.S., rapidly multiplying decisions are clarifying in the otherwise fuzzy outlines of the Foreign Trade Antitrust Improvement Act (“FTAIA”). The FTAIA governs and limits U.S. courts’ jurisdiction over a defendant’s sales. In today’s evolving world of manufacturing and procurement, these have become critical gateway questions: What overcharges are subject to U.S. jurisdiction and treble damage remedies? What commerce must be pursued elsewhere? This post will address these questions and more.
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*Originally published at the Global Private Litigation Conference, “Panel V: Consolidating Proceedings,” ABA Section of Antitrust Law, May 8, 2017