On December 2, 2011, the Seventh Circuit Court of Appeals issued an order in Minn-Chem, Inc. v. Agrium Inc., No. 10-1712, granting the plaintiffs’ October 7, 2011 petition for rehearing en banc, and vacating the opinion and judgment issued by a Seventh Circuit panel on September 23, 2011.
The panel’s September 23, 2011 decision directed the district court to dismiss a class-action complaint that alleged a global price-fixing cartel among Canadian, Russian and Belarusian producers of potash, a mineral used primarily in agricultural fertilizer. All of the anticompetitive conduct allegedly occurred outside the U.S., but allegedly adversely affected potash prices in the U.S. The key issues before the panel were whether the complaint satisfied either of the import-related exceptions to the Foreign Trade Antitrust Improvements Act (FTAIA), 5 U.S.C. §6a — which provides in general that the Sherman Act does not apply to anticompetitive conduct affecting only foreign markets — and alternatively whether the complaint stated a claim under the standards of Twombly and Iqbal, or merely alleged non-actionable innocent parallel conduct. The panel concluded that the complaint failed to plead enough to satisfy either of the two import-related exceptions to the FTAIA, and on that ground reversed and directed the district court to dismiss the plaintiffs’ Sherman Act claim.
The plaintiffs in their petition for en banc rehearing argued among other points that the panel’s opinion conflicted with the Seventh Circuit’s decision in In re Text Messaging Antitrust Litigation, 630 F.3d 622 (7th Cir. 2010), and the Third Circuit’s decision in Animal Sci. Prods., Inc. v. China Minmetals Corp., No. 10-2288, 2011 WL 3606995 (3d Cir. Aug. 17, 2011).