Last September in Minn-Chem, Inc. v. Agrium Incorporated, the Seventh Circuit interpreted the Foreign Trade Antitrust Improvements Act (“FTAIA”), 15 U.S.C. § 6a, in a way that made it more difficult to plead a Sherman Act claim based on alleged anticompetitive behavior that occurred abroad. (The earlier post is here.) Specifically, the decision concluded that absent allegations of anticompetitive conduct that actually targets the U.S. import market, a plaintiff alleging foreign anticompetitive conduct must allege facts that, if proved, demonstrate a direct, substantial, and reasonably foreseeable effect on U.S. domestic or import commerce. Allegations that defendants collusively set sale prices in other countries that were a benchmark for U.S. prices are insufficient if the complaint does not explain how this benchmarking occurred and affected U.S. prices. (For a bit more about the panel decision and a link to its text, see the earlier entry here.)
The court reheard the case en banc on Wednesday, February 8. The bulk of the court’s questions came from Chief Judge Easterbrook and Judges Posner, Wood, and Hamilton. In general the questioning from those judges seemed hostile to the appellants’ view that the FTAIA defeated plaintiffs’ attempt to plead a Sherman Act claim based on allegations that defendants imported anticompetitively priced potash into the U.S. The en banc argument is available here.