NHK Spring Co., Ltd., et al. v. Seagate Technology LLC, et al.

In 1982, Congress enacted the Foreign Trade Antitrust Improvements Act (“FTAIA”) “to promote certainty in assessing the applicability of American antitrust law to international business transactions.” H.R. Rep. No. 97-686, at 9 (1982). As relevant here, the FTAIA permits antitrust suits based on conduct involving foreign commerce only where the defendant’s conduct “has a direct, substantial, and reasonably foreseeable effect . . . on trade or commerce which is not trade or commerce with foreign nations,” and “such effect” then “gives rise to” the plaintiff ’s claim. 15 U.S.C. § 6a(1)-(2). In the decision below, the Ninth Circuit became the first court in history to hold that foreign defendants can be held liable to foreign purchasers for foreign transactions based solely on the fact that those transactions were negotiated in part in the United States. In so holding, the court broke sharply from the Seventh Circuit, which has held in materially identical circumstances that transactions abroad between a foreign seller and a foreign buyer are not subject to the Sherman Act even if some of the transactions’ terms were negotiated in the United States. The question presented is: Whether domestic negotiations are sufficient to bring foreign injuries from allegedly price-fixed foreign transactions within the reach of the Sherman Act, even where those negotiations have no intervening “effect . . . on trade or commerce which is not trade or commerce with foreign nations.” 15 U.S.C. § 6a(1)(A).