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Where to Draw the Line Should the FTAIA’s Domestic Effects Test Apply in Criminal Prosecutions

Ian Simmons, Benjamin G. Bradshaw, and Stephen McIntyre, Antitrust, Vol. 29, Issue 3, pp. 42-48, Summer 2015

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We propose that the FTAIA’s “domestic effects” exception, which requires that any alleged effect on U.S. commerce “give rise to” the plaintiff’s “claim,” should not be available in criminal prosecutions. For the reasons we discuss, we believe the statute’s plain language makes clear that Congress did not have criminal prosecutions in mind when it mandated that the federal antitrust laws shall only apply to foreign conduct that directly affects U.S. commerce and whose domestic effect “gives rise to a claim.”

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