In Sullivan v. Barclays PLC, Judge P. Kevin Castel, of the Southern District of New York, raised an interesting point regarding the relationship between the viability of antitrust claims subject to the Foreign Trade Antitrust Improvement Act (FTAIA) and constitutional requirements for personal jurisdiction: The FTAIA “arguably may apply a less-exacting standard than the due process threshold to exercise personal jurisdiction over a foreign defendant.” In other words, even though the standard for the FTAIA might be met to allow an antitrust claim to proceed against a foreign defendant, the court nonetheless might not be able to assert personal jurisdiction. The question whether the FTAIA should be read more strictly than has been the case to conform to due process requirements, or that foreign defendants should be more diligent in challenging personal jurisdiction, are interesting ones that warrant further analysis.
Sullivan is a purported class action involving allegations that a number of banks—many foreign—conspired to manipulate the Euro Interbank Offered Rate (Euribor”), a benchmark used in price or payment terms for certain financial instruments. Judge Castel’s decision on defendants’ motion to dismiss principally addressed issues of standing, personal jurisdiction, and whether the complaint alleged a plausible restraint of trade and injury. The Court ultimately found that complaint alleged no facts supporting the assertion of personal jurisdiction against a group of foreign defendants and dismissed them from the case.
The Court addressed the FTAIA only in passing, noting pointedly that the defendants devoted less than a page to it and finding that the specific arguments advanced by the defendants were not well-founded. In a footnote, though, Judge Castel suggested, seemingly sua sponte, that the FTAIA standard for domestic effects may be “less exacting” than required by due process for the court to exercise personal jurisdiction. And, indeed, Judge Castel found that although plaintiffs’ claims against the foreign defendants were not blocked by the FTAIA, the complaint’s allegations did not establish personal jurisdiction over them.
The Court’s observation regarding the potentially different standards was explained only through a “See generally” citation to Waldman v. Palestine Liberation Org., a case involving personal jurisdiction under the Anti-Terrorism Act, 18 U.S. C. § 2333(a). In Waldman, the Second Circuit observed that personal jurisdiction over a defendant alleged to have committed intentional torts would be consistent with the Due Process Clause if the defendant had “expressly aimed” or “target[ed]” its actions at the United States; an allegation that an injury in this country may merely have been the “foreseeable” result of foreign conduct was inadequate. Judge Castel was apparently raising the question whether the “reasonably foreseeable” prong of the “direct, substantial, and reasonably foreseeable” test for non-import commerce under the FTAIA might likewise be inadequate, standing alone, to support the assertion of personal jurisdiction. He noted that the applicability of contemporary due process personal jurisdiction requirements to cases brought under the FTAIA had not been explored in any published decision, and he concluded he did not need to address it to decide the motion to dismiss.
The question whether a claim found not to be blocked by the FTAIA might nonetheless be constitutionally infirm as to certain foreign defendants is an interesting one that should be explored when the facts warrant. As a threshold matter, the FTAIA generally is held not to be a jurisdictional statute, meaning that it merely describes an element of a claim that must be satisfied. Some may thus consider whether the FTAIA can be satisfied in cases where personal jurisdiction does not attach to be an academic curiosity. Further, and among other factors, parties will need to address aspects of the FTAIA that the Court in Sullivan had no occasion to address.
First, the FTAIA does not permit claims based on foreign conduct merely because the conduct causes a “foreseeable” injury in the United States. The injury must also be “direct” and “substantial, and “give rise to” a violation of the antitrust laws. Some may argue that these additional factors satisfy constitutional requirements, or incorporate them by reference. At the very least (and given the importance of the U.S. market to many global transactions), they suggest that cases where FTAIA requirements are satisfied will often also be ones in which the required intentional conduct may be found.
Second, while the touchstone of specific personal jurisdiction remains the “minimum contacts” test laid out more than 70 years ago in International Shoe, courts have developed a multitude of articulations when applying the test to different situations, and the Sullivan court focused on just one. Two principal tests are typically cited in the cases, designed to accommodate the contexts of tort and contract claims, respectively. In tort cases, courts often apply the “effects test” described in Calder v. Jones, examining whether a defendant has “purposefully directed” its conduct towards a forum; in contract cases, however, courts typically ask whether the defendant has “purposefully availed” itself of the benefits and protections of a forum’s law. Antitrust cases frequently employ the “purposeful direction” standard, finding it is a better “fit” with facts. But the “purposeful availment” test has also been applied in antitrust cases, to facts focusing on the volume of business done with the forum. Certainly the question which formulation of the “minimum contacts” test should be applied in a given case—or whether both should—is one best addressed in the context of real actions and real markets.
We await future decisions squarely analyzing the interplay between the standards for the FTAIA and personal jurisdiction, and recommend that practitioners pursue this issue aggressively until clarity is achieved.
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 No. 13-Civ-2811 (PKC), 2017 U.S. Dist. LEXIS 25756 (S.D.N.Y. Feb. 21, 2017).
 Id. at *68 n.13.
 The opinion also contains an unusually detailed discussion of the requirement for antitrust standing that a plaintiff be an “efficient enforcer of the antitrust laws.”
 Id. at *68-69
 Id. at *68 n.13.
 835 F.3d 317, 339 (2d Cir. 2016)
 Id. at 339-340; see also Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1156 (9th Cir. 2006).
 Interestingly, the “targeting” of or an intent to affect U.S. markets has occasionally arisen in discussing the applicability of the FTAIA, but in connection with determining whether transactions are in U.S. “import” commerce, and thus outside the scope of the statute altogether. See, e.g., United States v. Hui Hsiung, 778 F.3d 738, 755-56 (9th Cir. 2015) (finding that conduct within “import commerce” exception was supported by conclusion that “intent” of the conspiracy was to affect U.S. pricing); Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462, 471 & n.11 (3d Cir. 2011) (whether “conduct is directed at a U.S. import market” relevant to applicability of import commerce exception); In re Capacitors Antitrust Litig., No. 14-cv-03264-JD, 2016 U.S. Dist. LEXIS 136224, at *27 (N.D. Cal. Sept. 30, 2016) (finding that “import commerce” exception applied supported by allegation that conspiracy “focused” on U.S. market); Costco Wholesale Corp. v. AU Optronics Corp., No. C-13-1207 (RAJ), 2016 U.S. Dist. LEXIS 54495, at *12 (Mar. 3, 2016) (citing Hsiung); In re TFT-LCD, No. M 07-1827 SI, MDL No. 1827, 2014 U.S. Dist. LEXIS 132228, at *62-63 (N.D. Cal. Sept. 18, 2014) (“intent to target” United States relevant to finding of “import commerce”).
 See, e.g., Hsuing, 778 F.3d at 751-53; Lotes Co., Ltd. v. Hon Hai Precision Indus. Co. (Foxconn), 753 F.3d 395, 403-08 (2d Cir. 2014).
 Larger questions about the scope of Congress’ ability to address extraterritorial conduct may also exist. Justice Thomas, dissenting from the denial of certiorari in the recent case of St. Patrick Baston v. United States, No. 16–5454, 2017 U.S. LEXIS 1569 (March 6, 2017), recently observed, for example, that the Supreme Court had not authoritatively described the scope of Congress’ power to legislate under the Foreign Commerce Clause of the Constitution.
 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
 465 U.S. 783 (1984).
 See, e.g., Tamburo v. Dworkin, 601 F.3d 693, 702 (7th Cir. 2010); Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). In Licci v. Lebanese Canadian Bank SAL, 732 F.3d 161, 173 (2d Cir. 2013), the Second Circuit explained that the “effects test” is “typically invoked where . . . the conduct that forms the basis for the controversy occurs entirely out-of-forum, and the only relevant jurisdictional contacts with the forum are therefore in-forum effects harmful to the plaintiff.”
 In re Capacitors Antitrust Litig., No. 14-cv-03264-JD, 2015 U.S. Dist. LEXIS 76557, at *16-17 (N.D. Cal. June 11, 2015).
 See In re Vitamin C Antitrust Litig., No. 06-MD-1738, 2012 U.S. Dist. LEXIS 100075, at *38 (E.D.N.Y July 17, 2012).
 Cf. In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Prods. Liab. Litig., MDL No. 2676 (CRB), 2017 U.S. Dist. LEXIS 1109, at *862-865 (N.D. Cal. Jan. 4, 2017) (applying both “purposeful direction” and “purposeful availment” tests to securities law claim).