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A Whole New World: Private Enforcement Explores the Intersection of Territoriality and Globalization

Michaela Spero et al., Hausfeld News & Press, May 2017

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Although cartels with a global reach are increasingly common, recent decisions from courts in both the United States and United Kingdom have narrowly interpreted the territorial scope of antitrust laws in both jurisdictions. In the United States, the Seventh Circuit held in Motorola Mobility LLC v. AU Optronics Corporation that indirect purchases do not fall under the domestic effects exception to the Foreign Trade Antitrust Improvement Act. In the United Kingdom, the High Court gave further guidance on the territorial limitations of European Union (“EU”) law in Iiyama 1 and 2, in particular, the ability of an indirect purchaser to recover damages on the basis of a breach of EU antitrust law where the cartelist is not domiciled in the EU and the initial direct sale of the cartelized product was outside of the EU. This article will explore the implications of the recent decisions in both jurisdictions, and will propose a way forward for courts and private parties confronting the conflict between the territorial limits of their antitrust laws and global violations of those laws.

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