"The Increasing Importance of EU Competition Law for U.S. Companies"

Article

The United States has traditionally been considered the world’s antitrust policeman. The U.S. antitrust authorities have frequently applied the U.S. Sherman Act to foreign conduct that restrains competition in the United States. This extraterritorial reach of U.S. antitrust laws has for a long time been met with the approval of the U.S. courts. Moreover, due to the liberal pleading rules, treble damages, contingency fees, and extremely low risk of having to pay the winner’s legal fees, foreign parties have tended to bring their claims in the United States even though the countries where they are located and where they suffered the injury have adopted competition laws prohibiting such conduct. However, things are changing significantly in the international antitrust world. U.S. courts are increasingly refusing to entertain claims brought by foreign plaintiffs for harm incurred overseas. Even claims brought by U.S. companies for injuries suffered by their foreign subsidiaries related to violations of U.S. antitrust law are being rejected. See, e.g., Motorola Mobil- ity v. AU Optronics, 775 F.3d 816 (7th Cir. 2014). At the same time that the U.S. courts are narrowing extraterritorial jurisdiction in antitrust cases, foreign jurisdictions—in particular the European Union (EU)—are expanding their enforcement efforts. The effect of this will likely be more competition law litigation in multiple jurisdictions involving the same anticompetitive conduct.