Document Type
Article
Publication Title
SMU Law Review
Publication Date
2005
Volume
58
First Page
1419
Abstract
(Excerpt)
In F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran I), the Supreme Court, vacating the D.C. Circuit's ruling, held that the Foreign Trade Antitrust Improvements Act ("FTAIA") precludes courts from exercising subject matter jurisdiction over antitrust claims by foreign plaintiffs who allege unlawful conduct that "significantly and adversely affects both customers outside the United States and customers within the United States," if "the adverse foreign effect is independent of any adverse domestic effect;" that is, if "the conduct's domestic effects did not help to bring about that foreign injury." The narrowly crafted decision was tailored to the record facts, and the Court declined to undertake the kind of comprehensive statutory analysis that had led to a split in the circuits. The Court thus did not address the situation in which the alleged unlawful conduct creates domestic anticompetitive effects that help cause foreign injury, and the Court left the door open for the court of appeals to consider that argument on remand. How wide that opening is remains unclear. The uncertainty about the jurisdictional issue was exacerbated by the Court's refusal to address the issue of a foreign plaintiff's standing. In short, Empagran I raised new questions that the Supreme Court will soon have to address. The purpose of this article is to (1) analyze the Supreme Court's decision in Empagran I on the Sherman Act's extraterritorial reach; (2) discuss its likely impact on existing and future antitrust claims by foreign plaintiffs in American courts under the Sherman Act based on transactions abroad; and (3) examine whether foreign plaintiffs injured abroad have standing to sue in American courts under American law.
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Available at: https://scholar.smu.edu/smulr/vol58/iss4/5/