In In re: TFT-LCD (Flat Panel) Antitrust Litigation, Northern District of California Judge Susan Illston rejected the defendants’ argument that the Foreign Trade Antitrust Improvements Act barred some claims. The defendants contended that the bulk of one plaintiff’s damages were based on LCD products that had been shipped to a Mexican arm of the plaintiff. But that plaintiff responded that those shipments satisfied the statute’s “import trade or commerce” exception because they were intended to be imported into the U.S. Judge Illston held that a reasonable jury could find for the plaintiff because the shipments were plausibly “directed at an import market.” The panels in question had been shipped to the US; sent to Mexico for processing, and then sent back to the U.S. for sale.
The FTAIA exempts from the Sherman Act trade or commerce with foreign nations, but import trade and import commerce are exceptions. Although the FTAIA does not explicitly definte “import,” the court held that it covered activity directed at an import market. That US customs law may define goods en route to another country as outside the scope of U.S. imports, Judge Illston held that other statutes are irrelevant to whether a good is an import within the meaning of the FTAIA.