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Monday, July 02, 2012

Definitely merits

The en banc Seventh Circuit held last week that the Foreign Trade Antitrust Improvements Act, which limits the extra-territorial reach of the Sherman Act, was a limit on the merits of an antitrust claim, not a limit on the court's jurisdiction. (H/T: Reader George Conway of Wachtell, who argued Morrison v. National Australia Bank) a few  years ago). The opinion, by Judge Wood, overturned a 2003 panel decision treating it as jurisdictional;  Judge Wood wrote a strong dissent in that case, a dissent that subsequently was adopted by the Third Circuit earlier this year.

The decision nailed the issues perfectly. Judge Wood relies on Morrison's statement that extraterritorial reach is a merits issue, describing what the law purports to regulate and what is outside its reach; on language hinting at a merits understanding in the Supreme Court's last FTAIA case; and on the fact that a merits understanding is the best reading of the FTAIA, which does not use the word jurisdiction.  She also points out the evolution of this issue in the past decade since the rejected panel opinion and her dissent, stating "what may have been thought a nascent idea at the time [of the court's prior case] has now become a firmly established principle of statutory construction."

No cite to me, but still spot-on in the analysis. The "just about everything is merits" movement is catching on.


Posted by Howard Wasserman on July 2, 2012 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink


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Hurray! This was expected and is welcome.

Congrats, Howard.

Posted by: Jim von der Heydt | Jul 2, 2012 9:35:25 AM

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