Reconsidering the D.C. Circuit’s Proximate Cause Standard for Extraterrotorial Jurisdiction: Precluding the “Globalization” Theory to Promote Global Enforcement

By: Michelle A. Wyant


As businesses expanded with the rise of globalization, so did the effects of anticompetitive activity and, in turn, the reach of the U.S. antitrust laws. Though Congress addressed the extraterritorial jurisdiction of the U.S. antitrust laws with its implementation of the Foreign Trade Antitrust Improvement Act (“FTAIA”), the statute only created a three-way circuit split that led the Supreme Court to address the issue and determine that the foreign injury must arise from both foreign anticompetitive activity and the activity’s adverse effects on domestic commerce. The D.C. Circuit further clarified the issue on remand by requiring a proximate cause relationship between the foreign injury and adverse effects on domestic commerce. However, the commentary speculated that the Supreme Court had only generated further confusion.


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