Since the Federal Trade Antitrust Improvements Act’s (the FTAIA) passage, the federal courts have discussed, at length, whether the FTAIA speaks to the court’s power to hear the case (subject matter jurisdiction) or to the substantive elements of a Sherman Act claim.1 The FTAIA was enacted to “clarify the legal standard determining when American antitrust law governs foreign conduct.” Lotes Co. v. Hon Hai Precision Industry Co., 753 F.3d 395, 404 (2d Cir. 2014). The FTAIA does this by “placing all nonimport activity involving foreign commerce outside the Sherman Act’s reach. It then brings back such conduct within the Sherman Act’s reach provided the conduct both” has a “’direct, substantial and reasonably foreseeable effect’ on American domestic, import or (certain) export commerce” and “gives rise to a Sherman Act claim.” F. Hoffman-La Roche Ltd. V. Empagran S.A., 542 U.S. 155, 162 (2004) (emphasis removed).
Among the issues still percolating is the interplay between the FTAIA and personal jurisdiction over a foreign defendant.2 Although the FTAIA does not and was not intended to address personal jurisdiction specifically, when one examines the Sherman Act and the FTAIA, as well as the burden of proof the FTAIA places on plaintiffs, a convincing argument can be made that personal jurisdiction is established if the two “Acts” elements are met.
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