322 F.3d 942 (7th Cir. 2003), 01-1693, United Phosphorus v. Angus Chemical CO.

Docket Nº:01-1693
Citation:322 F.3d 942
Party Name:UNITED PHOSPHORUS, LTD., an Indian corporation; SHROFF'S UNITED CHEMICALS, LTD., an Indian corporation; and J.C. MILLER & ASSOCIATES, INCORPORATED, an Illinois corporation, Plaintiffs-Appellants, v. ANGUS CHEMICAL COMPANY, a Delaware corporation; ANGUS CHEMIE GmbH, a German corporation; the ESTATE of FREEMAN HUGHES through its representative Yvonne
Case Date:March 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 942

322 F.3d 942 (7th Cir. 2003)

UNITED PHOSPHORUS, LTD., an Indian corporation; SHROFF'S UNITED CHEMICALS, LTD., an Indian corporation; and J.C. MILLER & ASSOCIATES, INCORPORATED, an Illinois corporation, Plaintiffs-Appellants,

v.

ANGUS CHEMICAL COMPANY, a Delaware corporation; ANGUS CHEMIE GmbH, a German corporation; the ESTATE of FREEMAN HUGHES through its representative Yvonne Hughes; OLLIE W. CHANDLER; LOWELL PALS; GARY W. GRANZOW; D.B. GUPTA; and LUPIN LABORATORIES, LTD., an Indian corporation, Defendants-Appellees.

No. 01-1693

United States Court of Appeals, Seventh Circuit

March 10, 2003

[*]

ARGUED APRIL 4, 2002

REARGUED EN BANC NOVEMBER 6, 2002

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 C 2078 Ian H. Levin, Magistrate Judge.

COUNSEL

Peter M. Katsaros, Baum, Sigman, Auerbauch, Pierson & Neuman, Chiacago, IL, Fredrick S. Rhine (Argued), Gessler Hughes Socol Piers Resnick & Dym, Chicago, IL, for Plaintiffs-Appellants.

Stephen M. Shapiro, T. Mark McLaughlin (Argued). Mayer, Brown, Rowe & Maw, Chicago, IL, Barrie L. Brejcha, Baker & McKenzie, Chicago, IL, for Defendants-Appellees.

Before POSNER, COFFEY, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

Today, for the first time in this court, we encounter the Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a (FTAIA), a 1982 amendment to the Sherman Act, which affects its reach in foreign commerce. The primary issue involves whether the relevant provision of FTAIA is jurisdictional or whether it states an additional element of a Sherman Act claim. This in turn affects how a court deals with it and, in this case, what the outcome will be.

Plaintiffs United Phosphorus and Shroff's United Chemicals are chemical manufacturers based in India. J.C. Miller & Associates is an American firm, which was involved in a joint venture with the Indian plaintiffs. The defendants are Angus Chemical and its officers, Angus Chemie GmbH, and Lupin Laboratories—American companies or subsidiaries of American companies, which we will refer to collectively as Angus. The complaint alleges that Angus attempted to monopolize, did monopolize, and conspired to monopolize the market for certain chemicals, in violation of § 2 of the Sherman Act.

The issue of the court's subject matter jurisdiction was first raised soon after the case was filed in 1994. Angus' Rule 12(b)(1) motion was denied. Then, after considerable discovery (24 depositions and 8,000 pages of exhibits), Angus filed renewed motions to dismiss for lack of subject matter jurisdiction and for summary judgment in 2000. Angus contended that the court lacked subject matter jurisdiction under FTAIA, which, as relevant here, limits application of the Sherman Act Page 945

to conduct with a "direct, substantial, and reasonably foreseeable effect" on domestic commerce. After a thorough analysis of the facts, Magistrate Judge Ian H. Levin, sitting by consent, agreed with Angus and granted its motion to dismiss. United Phosphorus, Ltd. v. Angus Chem. Co., 131 F.Supp. 2d 1003 (N.D.Ill. 2001). Briefly, to the facts. In their original 1994 complaint, the plaintiffs alleged that India had the "greatest incidence of tuberculosis in the world." That allegation is consistent with a report from the Centers for Disease Control, dated March 22, 2002, which says that every year approximately 2 million people in India develop tuberculosis, accounting for 25 percent of the world's new cases. The parties tell us that "Ethambutol" is a primary pharmaceutical for the treatment of the disease. The chemicals involved in its production are the subject of this lawsuit.

2-Amino-1 Butanol (AB)is the key ingredient of Ethambutol, and 1-Nitro-Propane (1-NP) is the raw material from which AB is made. To make Ethambutol, defendant Lupin uses AB, which it buys from defendant Chemie, currently the world's only manufacturer of AB. Chemie is a German subsidiary, wholly owned by defendant Angus. The AB is manufactured in Germany. Angus manufactures 1-NP at a plant in Louisiana and is the world's only manufacturer of 1-NP.

This lawsuit stems from prior trade-secret litigation involving several of the parties. In the early 1990's, the Indian plaintiffs decided to acquire the technology for making AB and 1-NP. They went to Dr. John Miller (owner of J.C. Miller & Associates), who also had been the vice-president of research and development at Angus and supervised Angus' efforts to improve its AB processes. When Angus learned what was going on, it sued Miller and the Indian entities (who are the plaintiffs here) in an Illinois state court, seeking to enjoin Miller from misappropriating its trade secrets. Two years later, when Angus was faced with a discovery order which would have required it to disclose the details of the technology, Angus voluntarily dismissed the lawsuit.

The defendants in that case then filed this suit. As plaintiffs here, they claim that but for the Illinois action they would have sold AB for profit. They accuse Angus et al. of using anticompetitive means—the lawsuit—to thwart their plans.

As we said, the case was dismissed for lack of subject matter jurisdiction under FTAIA, which amends the Sherman Act, stating:

This Act shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless—

(1) such conduct has a direct, substantial, and reasonably foreseeable effect—

(A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations; or

(B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and

(2) such effect gives rise to a claim under the provisions of this Act other than this section.

If this Act applies to such conduct only because of the operation of paragraph (1)(B), then this Act shall apply to such conduct only for injury to export business in the United States. What is relevant here is that the conduct must have "a direct, substantial, and reasonably Page 946

foreseeable effect" on trade or commerce within the United States, rather than just on foreign commerce. If the requirement for a substantial effect on commerce in the United States goes to the court's subject matter jurisdiction, the case is analyzed under Federal Rule of Civil Procedure 12(b)(1), which provides for dismissal of an action for lack of subject matter jurisdiction. Subject matter jurisdiction is, as we know, an issue that should be resolved early but must be considered at any stage of the litigation. If subject matter jurisdiction is not evident on the face of the complaint, the motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as any other motion to dismiss, by assuming for purposes of the motion that the allegations in the complaint are true. However, as here, if the complaint is formally sufficient but the contention is that there is in fact no subject matter jurisdiction, the movant may use affidavits and other material to support the motion. The burden of proof on a 12(b)(1) issue is on the party asserting jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884 (3d Cir. 1977). And the court is free to weigh the evidence to determine whether jurisdiction has been established. Capitol Leasing Co. v. FDIC, 999 F.2d 188 (7th Cir. 1993); Filetech S.A. v. France Telecom S.A., 157 F.3d 922 (2d Cir. 1998); Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62 (3rd Cir. 2000). Factual findings rendered during this process are reviewed for clear error. Rexford Rand Corp. v. Ancel, 58 F.3d 1215 (7th Cir. 1995); Kruman v. Christie's Int'l PLC, 284 F.3d 384 (2d Cir. 2002).

On the other hand, if the requirement for a substantial effect on U.S. commerce is an element of the claim, then the motion would be properly treated under Rule 56 summary judgment standards. Summary judgment on the merits can be granted if, construing the facts against the moving party, there is no genuine issue of material fact and that party is entitled to judgment as a matter of law. In short, at this stage of the litigation—that is, when the court is considering a motion—the analysis differs if the issue is one of jurisdiction or an issue on the merits. We think it is fair to say that in this case the procedure employed will dictate the result. The appellants have made little effort to demonstrate that the district court's findings of fact are clearly erroneous. They claim, however, that what we have here should be viewed as a motion for summary judgment on the merits. Under the summary judgment standard with the facts construed in their favor, they contend that the defendants' motion should have been denied. The defendants, of course, contend that they should win under either standard, a proposition on which we need pass no judgment.

Over the years, the difficult issue of limiting the extraterritorial reach of the United States laws in international trade and international relations has received a good deal of attention. Despite the fact that, using language borrowed from the Foreign Commerce Clause of the Constitution, the Sherman Act itself prohibits agreements restraining "trade or commerce . . . with foreign nations," there has long been concern about overreaching under our antitrust laws. As far back as American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909), Justice Holmes said that the almost universal rule is that the "character of an act as lawful or unlawful must be determined wholly by the law of the country...

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