As the economy continues to globalize, so too does the reach of antitrust law. Two recent cases illustrate the interaction between international trade and U.S. antitrust law: Biocad v. F. Hoffman-La-Roche Ltd. and In re Capacitors Antitrust Litigation. These cases invoke the Foreign Trade Antitrust Improvement Act, which creates exceptions to the jurisdiction limiting language of the Sherman Antitrust Act, and exposes defendants to liability for conduct involving import and export trade or commerce. As the law evolves to keep up with changing trade and practices, the underlying principle to protect competition remains the same.
Your client is sued for failure to pay on a contract and says it shouldn’t have to pay because the prices were fixed by a cartel or that it was strong-armed into paying for a “bundle” of services or distribution channels even though it only wanted a subset of the bundle. Is that a defense? After all, aren’t contracts for unlawful ends unenforceable?
The answer, most often, is “no.” A recent decision by a New York Commercial Division judge provides a useful reminder of the fairly limited allowance of antitrust defenses to contract claims.