Getting Out from Under Antitrust Litigation: How it just got harder for foreign entities to stay out of the U.S. antitrust labyrinth

Making sense of U.S. antitrust law is a nearly impossible feat. If you have ever attempted it, you likely found yourself entangled in a labyrinth of intricate rules, followed by an even larger web of obscure exceptions to those rules. The murky nature of antitrust law is further exacerbated when foreign corporations, or foreign affiliates of U.S. corporations, find themselves in a U.S. court defending against allegations of anticompetitive conduct.

While this may be of little consolation to foreign entities, the reality is that the existing case law is inconsistent. Nonetheless, the livelihood of a foreign entity may hinge on knowing how to defend against an antitrust lawsuit. To make matters worse, in the most recent antitrust case involving foreign companies, Animal Science Products, Inc. v. China Minmetals Corporation,¹ the Third Circuit made it more complicated for foreign defendants to get out from under complex and expensive litigation. In that case, the court significantly tipped the scales against foreign entities defending against violations of antitrust law, particularly with respect to litigation exposure and costs. If this decision is any indication of the future for antitrust litigation, foreign defendants undoubtedly will face an increasingly uphill battle. Ironically, as the litigation stakes become higher, the law seems to become muddier.