Antitrust and Consumer Protection
Competition: 2016, Vol 25, No. 2
Content
- Biometric Privacy Litigation: Is Unique Personally Identifying Information Obtained From a Photograph Biometric Information?
- California Online Privacy Laws: the Battle For Personal Data
- Chair's Column
- "Clear and Conspicuous" Disclosures Between Celebrity Endorsers and Advertisers On Social Media Websites
- Comments On Proposed Update On Intellectual Property Licensing Guidelines
- Dispatches From the West Coast: Federalism, Competition, and Comments On the United States' Proposed Update To the Antitrust Guidelines For Licensing Intellectual Property
- Editor's Column
- Exceptions To the Rule: Considering the Impact of Non-practicing Entities and Cooperative Regulatory Processes In the Update To the Antitrust Guidelines For the Licensing of Intellectual Property
- Ftc Privacy and Data Security Enforcement and Guidance Under Section 5
- Home Run or Strikeout? the Unsettled Relationship Between the Sports Broadcasting Act and Cable Programming
- Masthead
- Never Say Never: the Ninth Circuit's Misguided Categorical Approach To Individual Damages Questions When Assessing Rule 23(B)(3) Predominance
- The Rapidly Changing Landscape of Private Global Antitrust Litigation: Increasingly Serious Implications For U.S. Practitioners
THE RAPIDLY CHANGING LANDSCAPE OF PRIVATE GLOBAL ANTITRUST LITIGATION: INCREASINGLY SERIOUS IMPLICATIONS FOR U.S. PRACTITIONERS
By James L. McGinnis, Oliver Heinisch, and Nadezhda Nikonova1
I. INTRODUCTION
The center of gravity when it comes to private litigation of international antitrust disputes is still in the United States, but two trends affecting the legal landscape in the U.S., U.K., and EU are shifting it across the Atlantic. In this article, we address these trends and further discuss their implications for lawyers handling major antitrust disputes that have global footprints. Much of the discussion will focus on cartel litigation because those cases often involve global issues and present the most obvious examples for our discussion.
The first trend is the evolving jurisprudence of the Foreign Trade Antitrust Improvements Act ("FTAIA"). The FTAIA governs the scope of U.S. antitrust law over sales that implicate foreign comity concerns. While the FTAIA remains among the more baffling statutes to apply, circuit court decisions are multiplying and foreign jurisdictions are adding their own views in support of their own remedies. Complete clarity is likely to remain elusive, but there are categories of commerce involving foreign entities that are increasingly likely to be ruled out of bounds for U.S. courts with the result that foreign courts may be the only venues with jurisdiction over large amounts of sales.