Businesses operating entirely outside of the U.S. might assume — at their peril — that they are beyond the reach of private antitrust claims brought in U.S. courts. But if those companies are engaged in trade with U.S. companies or in trade that has an effect on U.S. markets, and their business practices have the specter of anti-competitive conduct, they risk being hauled into U.S. court to answer allegations of antitrust violations. These violations are subject to treble damages.
The U.S. Court of Appeals for the Second Circuit recently drew one boundary to antitrust liability for foreign businesses in a narrow set of circumstances where the anti-competitive conduct was mandated by foreign law. This decision makes clear that international comity is an important defense from substantial U.S. antitrust liability for companies operating in countries with highly regulated or state-controlled industries that export to the U.S.
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