F. Hoffmann-La Roche Ltd v. Empagran S.A., No. 03-724.

CourtUnited States Supreme Court
Writing for the CourtBreyer
Citation542 U.S. 155
Docket NumberNo. 03-724.
Decision Date14 June 2004
PartiesF. HOFFMANN-LA ROCHE LTD ET AL. v. EMPAGRAN S. A. ET AL.
542 U.S. 155
F. HOFFMANN-LA ROCHE LTD ET AL.
v.
EMPAGRAN S. A. ET AL.
No. 03-724.
Supreme Court of United States.
Argued April 26, 2004.
Decided June 14, 2004.

The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA or Act) provides that the Sherman Act "shall not apply to conduct involving trade or commerce ... with foreign nations," 15 U. S. C. § 6a, but creates exceptions for conduct that significantly harms imports, domestic commerce, or American exporters. In this case, vitamin purchasers filed a class action alleging that vitamin manufacturers and distributors had engaged in a price-fixing conspiracy, raising vitamin prices in the United States and foreign countries, in violation of the Sherman Act. As relevant here, defendants (petitioners) moved to dismiss the suit as to the foreign purchasers (respondents), foreign companies located abroad, who had purchased vitamins only outside United States commerce. In dismissing respondents' claims, the District Court applied the FTAIA and found none of its exceptions applicable. The Court of Appeals reversed, concluding that the FTAIA's exclusionary rule applied, but so did its exception for conduct that has a "direct, substantial and reasonably foreseeable effect" on domestic commerce that "gives rise to a [Sherman Act] claim," §§ 6a(1)(A), (2). Assuming that the foreign effect, i. e., higher foreign prices, was independent of the domestic effect, i. e., higher domestic prices, the court nonetheless concluded that the Act's text, legislative history, and policy goal of deterring harmful price-fixing activity made the lack of connection between the two effects inconsequential.

Held: Where the price-fixing conduct significantly and adversely affects both customers outside and within the United States, but the adverse foreign effect is independent of any adverse domestic effect, the FTAIA exception does not apply, and thus, neither does the Sherman Act, to a claim based solely on the foreign effect. Pp. 161-175.

(a) Respondents' threshold argument that the transactions fall outside the FTAIA because its general exclusionary rule applies only to conduct involving exports is rejected. The House Judiciary Committee changed the bill's original language from "export trade or export commerce," H. R. 5235, to "trade or commerce (other than import trade or import commerce)" deliberately to include commerce that did not involve American exports but was wholly foreign. Pp. 162-163.

[542 U.S. 156]

(b) The FTAIA exception does not apply here for two reasons. First, this Court ordinarily construes ambiguous statutes to avoid unreasonable interference with other nations' sovereign authority. This rule of construction reflects customary international law principles and cautions courts to assume that legislators take account of other nations' legitimate sovereign interests when writing American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony. While applying America's antitrust laws to foreign conduct can interfere with a foreign nation's ability to regulate its own commercial affairs, courts have long held such application nonetheless reasonable, and hence consistent with prescriptive comity principles, insofar as the laws reflect a legislative effort to redress domestic antitrust injury caused by foreign anticompetitive conduct. However, it is not reasonable to apply American laws to foreign conduct insofar as that conduct causes independent foreign harm that alone gives rise to a plaintiff's claim. The risk of interference is the same, but the justification for the interference seems insubstantial. While some of the anticompetitive conduct alleged here took place in America, the higher foreign prices are not the consequence of any domestic anticompetitive conduct sought to be forbidden by Congress, which rather wanted to release domestic (and foreign) anticompetitive conduct from Sherman Act constraint when that conduct causes foreign harm. Contrary to respondents' claim, the comity concerns remain real as other nations have not in all areas adopted antitrust laws similar to this country's and, in any event, disagree dramatically about appropriate remedies. Respondents' alternative argument that case-by-case comity analysis is preferable to an across the board exclusion of foreign injury cases is too complex to prove workable. Second, the FTAIA's language and history suggest that Congress designed the Act to clarify, perhaps to limit, but not to expand, the Sherman Act's scope as applied to foreign commerce. There is no significant indication that at the time Congress wrote the FTAIA courts would have thought the Sherman Act applicable in these circumstances, nor do the six cases on which respondents rely warrant a different conclusion. Pp. 163-173.

(c) Respondents' additional linguistic arguments might show a natural reading of the statute, but the comity and history considerations previously discussed make clear that respondents' reading is not consistent with the FTAIA's basic intent. Their deterrence-based policy argument is also unavailing in light of the contrary arguments by the antitrust enforcement agencies. Pp. 173-175.

(d) On remand, the Court of Appeals may consider whether respondents properly preserved their alternative argument that the foreign

[542 U.S. 157]

injury here was not in fact independent of the domestic effects; and, if so, it may consider and decide the related claim. P. 175.

315 F. 3d 338, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 176. O'CONNOR, J., took no part in the consideration or decision of the case.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

Stephen M. Shapiro argued the cause for petitioners. With him on the briefs were Arthur F. Golden, Tyrone C. Fahner, Andrew S. Marovitz, Jeffrey W. Sarles, Lawrence Portnoy, Charles S. Duggan, John M. Majoras, Daniel H. Bromberg, Kenneth Prince, Lawrence Byrne, Bruce L. Montgomery, D. Stuart Meiklejohn, Michael L. Denger, Miguel A. Estrada, Laurence T. Sorkin, Roy L. Regozin, Donald I. Baker, Donald C. Klawiter, Peter E. Halle, James R. Weiss, Jim J. Shoemake, Thomas M. Mueller, Michael O. Ware, Aileen Meyer, Sutton Keany, Kenneth W. Starr, Moses Silverman, Aidan Synnott, Mark Riera, Kevin R. Sullivan, Peter M. Todaro, William J. Kolasky, and Edward DuMont.

Assistant Attorney General Pate argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Kneedler, Deputy Assistant Attorney General Delrahim, Lisa S. Blatt, Robert B. Nicholson, Steven J. Mintz, William H. Taft IV, and John D. Graubert.

Thomas C. Goldstein argued the cause for respondents. With him on the brief were Amy Howe, Michael H. Gottesman, Michael D. Hausfeld, Paul T. Gallagher, and Brian A. Ratner.*

[542 U.S. 158]

JUSTICE BREYER delivered the opinion of the Court.


The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) excludes from the Sherman Act's reach much anticompetitive conduct that causes only foreign injury. It does so by setting forth a general rule stating that the Sherman Act "shall not apply to conduct involving trade or commerce . . . with foreign nations." 96 Stat. 1246, 15 U. S. C. § 6a. It then creates exceptions to the general rule, applicable where (roughly speaking) that conduct significantly harms imports, domestic commerce, or American exporters.

We here focus upon anticompetitive price-fixing activity that is in significant part foreign, that causes some domestic antitrust injury, and that independently causes separate foreign injury. We ask two questions about the price-fixing conduct and the foreign injury that it causes. First, does that conduct fall within the FTAIA's general rule excluding the Sherman Act's application? That is to say, does the price-fixing activity constitute "conduct involving trade or commerce . . . with foreign nations"? We conclude that it does.

542 U.S. 159

Second, we ask whether the conduct nonetheless falls within a domestic-injury exception to the general rule, an exception that applies (and makes the Sherman Act nonetheless applicable) where the conduct (1) has a "direct, substantial, and reasonably foreseeable effect" on domestic commerce, and (2) "such effect gives rise to a [Sherman Act] claim." §§ 6a(1)(A), (2). We conclude that the exception does not apply where the plaintiff's claim rests solely on the independent foreign harm.

To clarify: The issue before us concerns (1) significant foreign anticompetitive conduct with (2) an adverse domestic effect and (3) an independent foreign effect giving rise to the claim. In more concrete terms, this case involves vitamin sellers around the world that agreed to fix prices, leading to higher vitamin prices in the United States and independently leading to higher vitamin prices in other countries such as Ecuador. We conclude that, in this scenario, a purchaser in the United States could bring a Sherman Act claim under the FTAIA based on domestic injury, but a purchaser in Ecuador could not bring a Sherman Act claim based on foreign harm.

I

The plaintiffs in this case originally filed a class-action suit on behalf of foreign and domestic purchasers of vitamins under, inter alia, § 1 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26. Their complaint alleged that petitioners, foreign and domestic vitamin manufacturers and distributors, had engaged in a price-fixing conspiracy, raising the price of vitamin products to customers in the United States and to customers in foreign countries.

As relevant here, petitioners moved to dismiss the...

To continue reading

Request your trial
197 practice notes
  • Rosenruist-Gestao E Servicos v. Virgin Enterprises, No. 06-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 27, 2007
    ...the "rule of construction ... derived from the principle of `prescriptive 511 F.3d 454 comity,'" Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (internal citations omitted), are fatal to the majority's view of § 24. The rule requires that ......
  • RJR Nabisco, Inc. v. European Cmty., No. 15–138.
    • United States
    • U.S. Supreme Court
    • June 20, 2016
    ...when those nations agree with U.S. substantive law on such things as banning price fixing. F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 167, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004). Numerous foreign countries—including some respondents in this case—advised us in Empagran that "t......
  • McBee v. Delica Co., Ltd., No. 04-2733.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 2, 2005
    ...Cruise Line Ltd., ___ U.S. ___, ___, 125 S.Ct. 2169, 2177, ___ L.Ed.2d ___, ___ (2005); F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 124 S.Ct. 2359, 2366-73, 159 L.Ed.2d 226 (2004); see also EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (......
  • Lotes Co. v. Hon Hai Precision Indus. Co., Docket No. 13–2280.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 4, 2014
    ...law considers harmful, i.e., the “effect” must “giv[e] rise to a [Sherman Act] claim.”F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 162, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (quoting 15 U.S.C. § 6a(1), (2)). Congress enacted this statute with two principal purposes in mind. Fi......
  • Request a trial to view additional results
192 cases
  • Rosenruist-Gestao E Servicos v. Virgin Enterprises, No. 06-1588.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • December 27, 2007
    ...the "rule of construction ... derived from the principle of `prescriptive 511 F.3d 454 comity,'" Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (internal citations omitted), are fatal to the majority's view of § 24. The rule requires that ......
  • RJR Nabisco, Inc. v. European Cmty., No. 15–138.
    • United States
    • U.S. Supreme Court
    • June 20, 2016
    ...when those nations agree with U.S. substantive law on such things as banning price fixing. F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 167, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004). Numerous foreign countries—including some respondents in this case—advised us in Empagran that "t......
  • McBee v. Delica Co., Ltd., No. 04-2733.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 2, 2005
    ...Cruise Line Ltd., ___ U.S. ___, ___, 125 S.Ct. 2169, 2177, ___ L.Ed.2d ___, ___ (2005); F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 124 S.Ct. 2359, 2366-73, 159 L.Ed.2d 226 (2004); see also EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (......
  • Lotes Co. v. Hon Hai Precision Indus. Co., Docket No. 13–2280.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 4, 2014
    ...law considers harmful, i.e., the “effect” must “giv[e] rise to a [Sherman Act] claim.”F. Hoffmann–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 162, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (quoting 15 U.S.C. § 6a(1), (2)). Congress enacted this statute with two principal purposes in mind. Fi......
  • Request a trial to view additional results
4 books & journal articles
  • ANTITRUST VIOLATIONS
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...Security Act). 234. Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a. 235. See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 166–69 (2004) (f‌inding no jurisdiction over injuries sustained in foreign markets despite parallel domestic injuries). 2021] ANTITRUST VI......
  • DEFERRING TO FOREIGN COURTS.
    • United States
    • University of Pennsylvania Law Review Vol. 169 Nbr. 8, August 2021
    • August 1, 2021
    ...recent developments in the Supreme Court's treatment of the presumption). (33) See F. Hoffmann-La Roche Ltd. v. Empagran S. A., 542 U.S. 155, 164 (2004) ("[TJhis Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other (34) See R......
  • Foreign States’ Amicus Curiae Participation in U.S. Antitrust Cases
    • United States
    • Antitrust Bulletin Nbr. 61-4, December 2016
    • December 1, 2016
    ...Corp., 475 U.S. 574 (1986).4. Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993).5. F. Hoffmann- La Roche Ltd v. Empagran SA, 542 U.S. 155 (2004).6. The literature review reveals that—in the period of the most serious jurisdictional clashes between the U.S. and its one author wr......
  • Roger Blair and the Goals of Antitrust
    • United States
    • Antitrust Bulletin Nbr. 61-3, September 2016
    • September 1, 2016
    ...has been cited by the Supreme Court in Comcast Corp. v. Behrend, 133S.Ct. 1426, 1437 (2013); and F. Hoffmann-La Roche, Ltd v. Empagran, 542 U.S. 155, 171 (2004); by more than thirty lowerfederal courts; and by the Iowa Supreme Court in Comes v. Microsoft Corp., 646 N.W. 2d 440, 449, n. 10 (......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT