Measuring Antitrust Damages in the Presence of Foreign Government Regulation

In: The Antitrust bulletin: the journal of American and foreign antitrust and trade regulation, Volume 64, Issue 2, p. 284-292

Abstract

The U.S. Supreme Court on June 14, 2018, reversed the Second Circuit's 2016 decision to vacate a $147 million judgment against two Chinese companies, who allegedly fixed vitamin C prices. The high court held that courts should give foreign governments' statements "respectful consideration" but are not bound by another country's description of its own laws. Going forward, courts will need to evaluate a foreign government's statements when defendants claim a contradiction between U.S. law and foreign regulations as a defense. When government regulation and private cartelization overlap, complications arise because the foreign companies may be liable for their anticompetitive conduct that was beyond the requirement of and might even have influenced foreign government policies. Using two illustrative cases ( In Re Vitamin C Antitrust Litigation and Resco Products v. Bosai Minerals), we analyze the impact of the price floor and export quotas and propose a new, workable methodology for measuring antitrust damages attributable to the private cartel in the presence of foreign regulation.