Discovering Civil Antitrust Violations Overseas

Abstract

The Third Circuit recently held that the Foreign Trade Antitrust Improvement Act (FTAIA) creates a substantive element of a plaintiffs claim for extraterritorial application of U.S. antitrust laws rather than a jurisdictional limitation. This Comment argues that, while a substantive interpretation imposes additional costs on all litigating parties, for claims arising under statutes addressing overseas conduct, the challenges that plaintiffs face in international discovery greatly exceed those of defendants. Blocking statutes enacted by many nations prevent FTAIA plaintiffs from efficiently attaining litigation materials. This Comment flags these problems, notes their implications beyond the FTAIA, and outlines potential reforms.