The Problem

This year's problem examines both a jurisdictional issue and a pleading issue in the context of an international antitrust action brought under the Sherman Antitrust Act, 15 U.S.C. § 1, in which it is alleged that the defendants conspired to manipulate the price of indium, a mineral used in the production of electronic touchscreen devices. Specifically, the problem asks whether certain statutory requirements found in the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a (FTAIA), which limits the reach of the Sherman Act, are jurisdictional or instead are elements of a Sherman Act claim. The problem also asks participants to examine the proper construction of those FTAIA requirements and determine whether the plaintiffs in this case, direct and indirect purchasers of indium, have pleaded a claim sufficient to survive defendants’ FRCP 12(b)(1) and 12(b)(6) motion to dismiss.

The complaint is designed to be a supplement to the district court and appellate court opinions and to aid participants in answering whether the plaintiffs in this case have sufficiently pleaded a Sherman Act claim capable of surviving a motion to dismiss based on the FTAIA. Although the complaint contains a fraudulent concealment count for purposes of providing additional background to participants, participants are specifically instructed to focus their arguments on the Sherman Act claim and to assume for purposes of this problem that the fraudulent concealment claim is not directly at issue in the context of defendants’ motion to dismiss.