US: Towards a lenient exterritorial enforcement of antitrust law

The Foreign Trade Antitrust Improvements (FTAIA) requirements which delineates the antitrust law’s exterritorial reach, have been strictly interpreted under the Supreme Court Landmark decision Hoffmann-La Roche Ltd. v. Empagran SA rendered in 2004. The plaintiffs have to satisfy a proximate causation standard establishing a concrete link between their damages into US market and a foreign anticompetitive conduct (cf. Empagran SA v. Hoffmann-La Roche, Ltd.). At the same time, the Supreme Court decision in Atlantic corp. v. Twombly of 2007, heightened standard of pleading requirement to sustain an antitrust claim. The “scissor-like effects” arising from these restrictions had considerably restricted the possibilities to claim against global cartel’s conspiracies. During the first months of 2011 this strict position has been softened after the federal appellate decision of the Third Circuit in Animal Science Products, Inc. v. China Minmetals Corp, which has concurrently relaxed the FTAIA requirements and the burden of the proof under le Federal Rule of Civil Procedure for the plaintiffs injured in transaction occurring outside the United states.