Lower courts are beginning to take the Supreme Court at its word about backing away from drive-by jurisdictional rulings, especially those on the margins of jurisdiction and merits. Last month, I wrote about the Third Circuit overruling prior precedent to hold that the Foreign Trade Antitrust Improvements Act, which limits the extraterritorial reach of the Sherman Act, was a merits limitation. I mentioned that this set up a circuit split with the Seventh Circuit, which had held (in a sharply divided en banc decision) that the FTAIA is jurisdiction, although that 2003 came before the legal terrain began to shift.
Well, maybe not. Yesterday, a Seventh Circuit panel, in rejecting a claim under the FTAIA, noted that the position taken by the en banc dissent had prevailed in the Supreme Court (at least as to other federal statutes) and suggested that the issue may be ripe for reconsideration, which would require a new en banc case. The court did not resolve the issue, because the claim failed regardless of how it was characterized. But lower courts are beginning to read the Supreme Court’s guidance.
Posted by Howard Wasserman on September 24, 2011 at 12:55 PM