AAI Files Comments on Agencies’ Proposed Update of International Antitrust Guidelines

The American Antitrust Institute (AAI) filed comments in response to a request by the Antitrust Division (DOJ) and the Federal Trade Commission (FTC) for public comment on proposed revisions to the agencies’ guidelines for international enforcement and cooperation.

The AAI’s comments are broadly supportive of the agencies’ proposed update. However, the comments make suggestions to improve the guidelines in several areas, particularly relating to the interpretation of the Foreign Trade Antitrust Improvements Act (FTAIA). The FTAIA, enacted in 1982, governs the application of the antitrust laws to foreign trade.

Among its key recommendations, the AAI emphasizes that the FTAIA’s exclusion of import commerce, which leaves the Sherman Act fully applicable to foreign conduct involving import trade or commerce, should be interpreted broadly to include instances where the foreign price fixer intends that the price-fixed products will be imported into the United States, even if the product is first sold abroad.

The AAI’s comments also argue that the FTAIA should be interpreted to allow victims of international cartels to recover under the Sherman Act when they purchase price-fixed component parts abroad that are assembled into finished end-products sold in the United States, notwithstanding a recent Seventh Circuit decision to the contrary.

The AAI also stresses that, if direct purchasers are barred by the FTAIA, it is critical to the Clayton Act’s deterrence and compensation goals that indirect purchasers be permitted to redress harm to U.S. commerce caused by international cartels.  Moreover, in criminal cases, the DOJ should honor its existing policy of requiring leniency applicants to make restitution to victims in connection with the harm to U.S. commerce.

The comments were written by AAI Vice President and General Counsel Richard Brunell and AAI Associate General Counsel Randy Stutz.