On November 15, 2022, the United States Court of Appeals for the Fourth Circuit unanimously affirmed a district court’s dismissal of a broker’s suit against two aerospace contractors and South Korea alleging that they conspired to cut it out of a large, complex international military procurement transaction because the court lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA) and plaintiff’s antitrust claims were untimely under the Clayton Act’s four-year statute of limitations. Blenheim Capital Holdings Ltd. v. Lockheed Martin Corporation, No. 21-2104 (4th Cir. Nov. 15, 2022).

On November 5, 2019, a three-judge panel of the U.S. Court of Appeals for the Second Circuit (Panel) affirmed the U.S. District Court for the Southern District of New York’s dismissal of antitrust claims brought against manufacturers of cancer treatment drugs.  Biocad JSC v. F. Hoffmann-La Roche Ltd., No. 17-3486-cv (2d Cir. Nov. 5, 2019).  Plaintiff, a private pharmaceutical company based in Russia, alleged that defendants conspired to block plaintiff from entering the U.S. market for cancer treatment drugs in violation of Sections 1 and 2 of the Sherman Act and other statutes.  In affirming the district court’s dismissal, the Panel held plaintiff’s claims were barred under the Foreign Trade Antitrust Improvements Act (“FTAIA”), clarifying that, in the Second Circuit, the proper test under the FTAIA’s import exclusion is effects-based, not intent-based.

On September 20, 2018, Judge James Donato of the United States District Court for the Northern District of California issued an order granting in part and denying in part defendants’ motion for summary judgment on the issue of the applicability of the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a (“FTAIA”) to specific categories of claims.  Judge Donato also addressed a question left open in a prior order regarding whether a state antitrust or consumer protection law might apply less broadly than the FTAIA.  In re Capacitors Antitrust Litig. (No.III), Case No. 17-md-02801-JD (N.D. Cal. Sept. 20, 2018).  Judge Donato’s decision clarifies the application of the FTAIA to various categories of extraterritorial transactions allegedly affected by a price-fixing conspiracy.

On February 9, 2018, Judge Mark A. Kearney of the United States District Court for the District of Delaware denied in part Armstrong World Industries Inc.’s (“Armstrong”) motion to dismiss a lawsuit filed by rival ceiling tile manufacturer Roxul USA Inc. (“Roxul”), finding that Roxul alleged facts plausibly demonstrating monopolization and attempted monopolization in violation of Sherman Act Section 2, and concerted action in restraint of trade in violation of Sherman Act Section 1 and Clayton Act Section 3.  However, Judge Kearney granted Armstrong’s motion to dismiss Roxul’s claims relating to the sale of ceiling tiles in Canada because Roxul failed to allege how reduced competition in Canada had a “direct, substantial and reasonably foreseeable effect” on U.S. commerce, as required by the Foreign Trade Antitrust Improvements Act (“FTAIA”). 

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