Connecticut Law Review Volume 46 - Issue 1

Minn-Chem and the New Normal: A Revitalized Foreign Trade Antitrust Improvements Act

For over a century, the judiciary has faced delicate questions about the appropriateness of invoking U.S. antitrust law to potentially hold foreign actors accountable for anticompetitive conduct. The Foreign Trade Antitrust Improvements Act (FTAIA) passed in 1982 with the well-intentioned aim of establishing guidelines in this area. However, for many of the ensuing years, the statutory language was interpreted and applied in varying ways— evoking great uncertainty about the potential reach of U.S. antitrust law.

One of the most unassuming, quietly momentous FTAIA decisions of our time, Minn-Chem, Inc. v. Agrium Inc., signals that these interpretations may finally be converging in a way that favors antitrust plaintiffs seeking to bring claims against foreign defendants. This flows from two key holdings, namely: (1) that the FTAIA is a substantive, and not jurisdictional, statute; and (2) that the FTAIA is governed by a proximate causation standard rather than a strict directness standard. While the exact impact of the case remains to be seen, by shifting the pre-trial balance of power to plaintiffs, it stands to invite a new wave of litigation to the high- stakes U.S. antitrust realm.

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