Chapter XI Antitrust Issues Involving Intellectual Property .
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CHAPTER XII
ANTITRUST AND INTERNATIONAL COMMERCE
Sherman Act
Foreign Trade Antitrust Improvements Act
(1) FTAIA: Federal Subject Matter Jurisdiction Limitation or Element of
a Claim?
In In re Foreign Exchange Benchmark Rates Antitrust Litigation,1 the
district court denied the defendants’ attempts to exclude as evidence
communications involving co-conspirators located outside the United
States.2 The court held that while the Foreign Trade Antitrust
Improvements Act (“FTAIA”) limited those claims that may go forward
under the Sherman Act, it did not limit the evidence that is admissible to
prove those claims.3
(4) “Direct, Substantial, and Reasonably Foreseeable” Effects under the
FTAIA
In Iowa Pub. Employees’ Retirement System v. Bank of America
Corp.,4 the district court granted plaintiffs’ motion for class certification
following allegations of a wide-ranging conspiracy involving the stock
loan market.5 Proposed class plaintiffs alleged they had to pay a higher
price due to the lack of competitive pricing available through multilateral
platforms.6 Plaintiffs secured class certification after the court found the
1. 2022 U.S. Dist. LEXIS 160642 (S.D. N.Y. 2022).
2. Id. at *21-22.
3 Id.
4. 2022 U.S. Dist. LEXIS 117036 (S.D.N.Y. 2022).
5. Id. at *4.
6. Id. at *89.
226 2022 Annual Review of Antitrust Law Development
alleged conspiracy created a common source of economic injury for class
members such that the FTAIA did not preclude a finding of predominance
under Rule 23(b)(3).7
Act of State
In Celestin v. Caribbean Air Mail, Inc.,8 U.S. resident plaintiffs
alleged that multinational corporations conspired with Haitian officials to
fix the prices of remittances and telephone calls made to contacts in Haiti .9
Plaintiffs alleged that defendants disguised their agreement in formal
executive actions of the Haitian government.10 Citing the act of state
doctrine, the district court dismissed plaintiffs’ antitrust claim, finding that
it could not evaluate the merits of the claim without adjudging the
“propriety” of Haiti’s official acts.11 The Second Circuit reversed in part,
holding that the act of state doctrine did not foreclose plaintiffs’ antitrust
claim because no official act of Haiti had to be deemed invalid for liability
to attach under federal law.12
Arbitration
In Kellner v. Amazon & Amazon Officers,13 the district court
confirmed defendants’ arbitration award in a domestic dispute after
finding it “well settled” that claims brought under the Sherman and
Clayton Acts may be arbitrated.14
7. Id.
9. Id. at 136.
10. Id.
12. Id. at *145.
13. 2022 U.S. Dist. LEXIS 37143 (E.D.N.Y. 2022).
14. Id. at *16.
Antitrust and international Commerce 227
Merger Control
Argentina. In May 2022, the National Commission for the Defense of
Competition (NCDC) opened for consultation a review of the 2001 merger
regulations.15 The final version of these new regulations has not been
approved at the time of writing.
In 2022, the Antitrust Authority issued a number of Objection Reports.
Objection Reports are preliminary public statements, first introduced by
the 2018 competition law reform, that are issued by the Antitrust Authority
with the purpose of laying out the antitrust concerns identified in a
transaction. The Antitrust Authority issued three such Reports in 2022.
Australia. In Australia, parties to a merger may choose between two
review procedures: merger authorization or informal clearance. The vast
majority of mergers are reviewed by the Australian Competition and
Consumer Commission (ACCC) through the informal process; however,
under the authorization process, the ACCC may grant authorization where
the merger will not be likely to substantially lessen competition (a
competition test) or is likely to result in public benefits which outweigh
any detriments (a net public benefit test). There was a significant increase
in the number of parties seeking to use the merger authorization process
in Australia in 2022, a year during which the ACCC decided not to grant
one authorization (Telstra Corporation Limited / TPG Telecom Limited)
and, as of year’s end, had two authorizations still under consideration
(Linfox Armaguard Pty Ltd / Prosegur Australia Holding Pty Ltd and ANZ
/ Suncorp Bank). The three authorizations requested in 2022 represent a
doubling of the number applications received since the process was
introduced in 2017.
In 2022, the ACCC’s informal clearance process resulted in:
• Seven applications being approved unconditionally:
Wesfarmers Limited/Australian Pharmaceutical Industries
Limited, Aviation Training Partners/Aviation Training
Holdings Pty Ltd, Corporate Travel Management
Limited/Helloworld Travel Limited, EBOS Group
15. See Ministerio de Economia, Conulta publica: nuevo reglamento de
concentraciones (May 20, 2022), available in Spanish at
https://www.argentina.gob.ar/noticias/consulta-publica-nuevo-
reglamento-de-concentraciones.
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