Course: Legal Bases for Export.

Homework Questions:

Case:

Regal Shipping, ltd., is a publicly traded company incorporated in the UK. It carries freight between Europe and the United States. Two years ago it lowered its fares to half those of its competitors. The competitors (i.e., Plebeian Shipping Lines, Ltd., a UK company and seven other shipping companies incorporated in the US, Canada, France, Germany, Italy and Japan) were enraged by Regal's action, and they secretly agreed to lower their own prices until they could run Regal out of business. Regal suffered huge losses and is on the brink of bankruptcy. It hopes to recoup its losses and stay in business by bringing an antitrust suit in the US against its competitors.

Questions:

1. In Connection with its suit in the US, Regal asks an English court to compel Plebeian to turn over corporate documents showing the extent of the conspiracy between Plebeian and the other seven of Regal's competitors. Will Regal succeed? Discuss.
2. Plebeian brings an appropriate action in an English court asking the court to issue an injunction to bar Regal from suing Plebeian in the US. Will Plebeian succeed? Discuss.
3. The other competitors bring a separate action in England asking the English court to enjoin Regal from continuing with its suit in the US. Will they succeed? Discuss

The Topic: Blocking Statutes.

Blocking Statute - Law enacted in some states to obstruct the extraterritorial application of U.S. antitrust laws by limiting a plaintiff's right to obtain evidence or to enforce a judgement, and that allows a defendant to bring suit locally to recover punitive damages paid in the United States.

Blocking Statutes are possibly the most forceful responses that states have made to the extraterritorial application of American antitrust laws.

These statutes typically have three features:

1. They limit the extent to which a US plaintiff can obtain evidence or seek production of commercial documents outside the United States for use in investigation or proceedings in the United States.
2. They make it difficult for a successful plaintiff to enforce a US judgement outside the US. and
3. By virtue of clawback provision, they allow defendants to bring suit in their home country to recover the punitive damages they paid in the US.

Foreign nations with blocking statutes would not allow "perceived abuses in the application of US antitrust laws." Foreign countries with blocking statutes, whose leaders felt the US courts were overextending their jurisdiction and disregarding comity concerns, attempted to use the blocking statutes to make it very difficult for plaintiffs in the US to obtain discovery or to enforce any judgments. Without adequate discovery, it was difficult for any case that required foreign discovery to proceed beyond the pleadings stage. Additionally, without being able to enforce a judgement, plaintiffs had little incentive to bring suit.

To the disappointment of foreign nations, blocking statutes remained largely ineffective. In the face of these foreign blocking statutes, American courts continued to subject foreign entities to court-ordered discovery, even where the defendants were also subject to civil or criminal sanctions in their home countries. While foreign states adopted elements of their foreign blocking statutes, such as barrier to judgement enforcement, which may have been initially effective in making foreign companies judgement proof, many defendants found to be in violation of antitrust laws have had assets in the US, which plaintiffs may seek to attach in satisfaction of judgements--effectively avoiding the barriers presented in the foreign blocking statutes.