¹ F. Hoffman-LaRoche Ltd. v. Empagran S.A., 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004).Google Scholar

² 124 S.Ct. at 2363.Google Scholar

³ Harry First, The Vitamins Case: Cartel Prosecutions and the Coming of International Competition Law, 68 Antitrust Law Journal 711, 712 (2001). See also EU Fines Eight Companies For Roles in Vitamin Cartels, 81 Antitrust & Trade Regulation Reports (BNA) 483, 483 quoting Mario Monti, who described it as “the most damaging series of cartels the [European C]ommission has ever investigated.”Google Scholar

⁴ See First, supra note 3, at 715-19 for a description of the various penalties assessed against cartel participants.Google Scholar

⁵ For instance, both the Chairman of the Australian Competition and Consumer Commission and a spokesman for the European Commission mentioned cooperation with the U.S. authorities as part of their investigative efforts. See 76 Antitrust & Trade Regulation Reports (BNA) 585, 586 (1999).Google Scholar

⁶ 124 S.Ct. at 2363-64. Domestic purchasers of the vitamins had consolidated their claims into a separate lawsuit.Google Scholar

⁷ Empagran S.A. v. F. Hoffman-LaRoche Ltd., 315 F.3d 338 (D.C. Cir. 2003).Google Scholar

⁸ Such briefs were filed by the governments of Belgium, Canada, Germany, Ireland, Japan, the Netherlands, and the United Kingdom. All are available in the Briefs file on WESTLAW.Google Scholar

⁹ See, e.g., Brief of the Governments of the Federal Republic of Germany and Belgium as Amici Curiae in Support of Petitioners at 2, 7.Google Scholar

¹⁰ See, e.g., Brief for the Government of Canada as Amicus Curiae Supporting Reversal at 14.Google Scholar

¹¹ See, e.g., Otto Graf Lambsdorff, Wettbewerbsrecht als Ordnungsfaktor einer globalisierten Marktwirtschaft, 7/8 Wirtschaft und Wettbewerb 710 (2003).Google Scholar

¹² See Brief Amici Curiae of Legal Scholars in Support of Respondents at 12. This argument played a significant role in the court below. The Court of Appeals had noted the following:Google Scholar

We are persuaded that, if foreign plaintiffs could not enforce the antitrust laws with respect to the foreign effects of anticompetitive behavior, global conspiracy would be under-deterred, since the perpetrator might well retain the benefits that the conspiracy accrued abroad. There would be an incentive to engage in global conspiracies, because, even if the conspirator has to disgorge his U.S. profits in suits by domestic plaintiffs, he would very possibly retain his foreign profits, which may make up for his U.S. liability.Google Scholar

315 F.3d at 356. This point had been made by the Supreme Court itself in an earlier case addressing the ability of foreign governments to assert private antitrust claims in U.S. courts. See Pfizer, Inc. v. Government of India, 434 U.S. 308, 315 (1978).Google Scholar

¹³ See Brief of Amici Curiae Economists Joseph E. Stiglitz and Peter R. Orszag in Support of Respondents at 8-12; Brief for Certain Professors of Economics as Amici Curiae in Support of Respondents 5-12.Google Scholar

¹⁴ See Brief of Joseph E. Stiglitz and Peter R. Orszag, supra note 13, at 12.Google Scholar

¹⁵ For a discussion of the FTAIA generally, see IA Phillip E. Areeda and Herbert Hovencamp, Antitrust Law ¶ 272 (2d ed. 2000).Google Scholar

¹⁶ 15 U.S.C. §6A (2001).Google Scholar

¹⁷ 315 F.3d at 344.Google Scholar

¹⁸ Den Norske Stats Oljeselskap A.S. v. Heeremac V.O.F., 241 F.3d 420 (5th Cir. 2001) [hereinafter “Statoil“].Google Scholar

¹⁹ Id. at 426.Google Scholar

²⁰ Id. at 427.Google Scholar

²¹ Kruman v. Christie's Int'l PLC, 284 F.3d 384 (2d. Cir. 2002).Google Scholar

²² Id. at 389.Google Scholar

²³ Id.Google Scholar

²⁴ Id. at 399-400.Google Scholar

²⁵ 315 F.3d 338.Google Scholar

²⁶ Id. at 350. The precise test adopted in Empagran varied slightly from that adopted by the Second Circuit. The Kruman court held that “the ‘effect’ on domestic commerce need not be the basis for a plaintiff's injury, it only must violate the substantive provisions of the Sherman Act.” 284 F.3d at 400. The Empagran court, on the other hand, held that the effects of the conduct “must give rise to ‘a claim’ by someone, even if not the foreign plaintiff who is before the court.” 315 F.3d at 350. This view is slightly more restrictive in that it requires that the conduct be sufficient to give rise to a private claim; creating the basis for a government action would not be sufficient. Id.Google Scholar

²⁷ As I have argued elsewhere, it is possible to imagine an intermediate interpretation of the FTAIA – one that recognizes the regulatory interests of the United States, but counsels jurisdictional restraint when another nation in fact has a competing interest. See Hannah L. Buxbaum, Jurisdictional Conflict in Global Antitrust Enforcement, 16 Loyola Consumer Law Review 365, 367-72 (2004). Such a view would recognize the distinction between countries that do in fact prosecute cartels and those that do not. On this point, see also Ralf Michaels & Daniel Zimmer, US-Gerichte als Weltkartellgerichte?, IPRax (2004 forthcoming); Fox, Eleanor, International Antitrust and the Doha Dome, 43 Virginia Journal of International Law 911, 923 (2003).Google Scholar

²⁸ 124 S.Ct. at 2363.Google Scholar

²⁹ The decision was 8-0, with Justice O'Connor taking no part in the consideration or decision of the case.Google Scholar

³⁰ 124 S.Ct. at 2366.Google Scholar

³¹ 124 S.Ct. at 2369.Google Scholar

³² 124 S.Ct. at 2366.Google Scholar

³³ Id.Google Scholar

³⁴ See OECD Council Recommendation Concerning Effective Action Against Hard-Core Cartels, C(98)/35/FINAL, 25 March 1998, available at www.oecd.org/document.Google Scholar

³⁵ 124 S.Ct. at 2368.Google Scholar

³⁶ This has been a particular point of conflict in international antitrust cases. See Hannah L. Buxbaum, The Private Attorney General in a Global Age: Public Interests in Private Antitrust Litigation, 26 Yale Journal of International Law 251-53 (2001). Other elements of the U.S. system that are questioned abroad include the use of class actions and contingency fee arrangements to support private litigation under regulatory laws.Google Scholar

³⁷ See supra note 8.Google Scholar

³⁸ 124 S.Ct. at 2368. This section also addresses the concern that specific programs granting amnesty to whistle-blowers would be disrupted by the availability of private actions – a point in which the U.S. government concurred. See Brief for the United States as Amicus Curiae Supporting Petitioners at 19-21.Google Scholar

³⁹ 124 S.Ct. at 2366 (emphasis added).Google Scholar

⁴⁰ 124 S.Ct. at 2367.Google Scholar

⁴¹ See further discussion of this point in Part IV below.Google Scholar

⁴² See, e.g., Spencer Weber Waller, The Twilight of Comity, 38 Columbia Journal of Transnational Law 563 (2000).Google Scholar

⁴³ 509 U.S. 764 (1993).Google Scholar

⁴⁴ Id. at 797.Google Scholar

⁴⁵ Id. at 798, citing Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522, 555 (1987) (Blackmun, J., concurring in part and dissenting in part).Google Scholar

⁴⁶ Id. at 799.Google Scholar

⁴⁷ Id.Google Scholar

⁴⁸ 124 S.Ct. at 2366.Google Scholar

⁴⁹ This distinction, reflected in the Restatement (Third) of the Foreign Relations Law of the United States, was the subject of dispute in Hartford Fire. Justice Scalia, in his dissent in that case, characterized the issue as one of prescriptive jurisdiction; the majority, as one of subject-matter jurisdiction. See 509 U.S. at 813-15 (Scalia, J., dissenting). The Empagran opinion in fact cites that very dissent; see 124 S.Ct. at 2366. Further to the distinction between prescriptive jurisdiction and subject-matter jurisdiction, and its relevance in international antitrust cases, see Michaels & Zimmer, supra note 27.Google Scholar

⁵⁰ 509 U.S. at 820 (Scalia, J., dissenting).Google Scholar

⁵¹ 124 S.Ct. at 2369.Google Scholar

⁵² At one point, the Court states this explicitly: “[W]e reemphasize that we base our decision upon the following: … the adverse foreign effect is independent of any adverse domestic effect.” Id. at 2366.Google Scholar

⁵³ See Areeda and Hovencamp, supra note 15, at ¶ 273.Google Scholar

⁵⁴ 124 S.Ct. at 2366 (emphasis in original). Interestingly, the Court here cites only the 1945 decision in United States v. Aluminum Co. of America, 148 F.2d 416, which itself predated the development of interest balancing and other comity-driven tests.Google Scholar

⁵⁵ 124 S.Ct. at 2372.Google Scholar

⁵⁶ Id.Google Scholar

⁵⁷ Id. The foreign plaintiffs in the other global cartel cases made similar claims. In Statoil, the plaintiffs argued that “because the defendants operating in the Gulf of Mexico were able to maintain their monopolistic pricing only because of their overall market allocation scheme …, Statoil's injury in the North Sea was a ‘necessary prerequisite to’ and was ‘the quid pro quo for’ the injury suffered in the United States domestic market.” 241 F.3d at 425. In Kruman, too, the plaintiffs argued that “the domestic price-fixing agreement could only have succeeded with the foreign price-fixing agreement.” 284 F.3d at 401. This interdependence was also stressed in the briefs of economists supporting U.S. jurisdiction in Empagran. See, e.g., Brief for Certain Professors of Economics, supra note 14, at 5-7 (discussing the connections between effects on U.S. and foreign commerce in cartels affecting mobile products).Google Scholar

⁵⁸ If, as the Supreme Court notes, they properly preserved that argument. 124 S.Ct. at 2372.Google Scholar

⁵⁹ At the least, the lack of connections to the United States would suggest the greater likelihood of dismissal on the basis of forum non conveniens. See Buxbaum, supra note 27, at 374.Google Scholar

⁶⁰ 124 S.Ct. at 2370-71.Google Scholar

⁶¹ 124 S.Ct. at 2369.Google Scholar

⁶² Id.Google Scholar

⁶³ See discussion of these cases at 124 S.Ct. at 2369-70.Google Scholar

⁶⁴ 124 S.Ct. at 2370.Google Scholar

⁶⁵ See Buxbaum, supra note 36, at 222-225.Google Scholar

⁶⁶ 124 S.Ct. at 2370 [internal citation omitted]. This argument has been used in the past to support the notion that courts should apply comity analysis in private claims.Google Scholar

⁶⁷ See supra notes 12-14 and accompanying text.Google Scholar

⁶⁸ 124 S.Ct. at 2372.Google Scholar

⁶⁹ 124 S.Ct. at 2368-69.Google Scholar

⁷⁰ 124 S.Ct. at 2372.Google Scholar

⁷¹ See Fox, supra note 27.Google Scholar