Number: RS21877
Title: FTAIA Limits Availability of U.S. Courts to Foreign Antitrust Plaintiffs: F. Hoffman-LaRoche, Ltd. V. Empagran, S.A.
Authors: Janice E. Rubin, American Law Division 
Abstract: When the Supreme Court decided F. Hoffman-LaRoche, Ltd. v. Empagran, S.A. (542 U.S. 155 (2004)), it narrowed the degree to which the Federal Circuits were split concerning the availability of U.S. courts to foreign plaintiffs seeking relief for violations of U.S. antitrust laws; it also lessened the concern of foreign governments, global commercial entities and U.S. antitrust enforcement officials that the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) could be a vehicle for extending the reach of U.S. antitrust laws. A unanimous Court ruled that the FTAIA's general Sherman Act non-applicability to foreign commerce "other than import trade or ... commerce" is not necessarily displaced by the act's exception for anticompetitive conduct that has a "direct, substantial, and reasonably foreseeable effect" on U.S. domestic commerce, and that "gives rise to a [Sherman Act] claim." Where a foreign plaintiff's claim arises independently of the harm to U.S. commerce, even though the underlying conduct may have had such a harmful effect, the Court said, U.S. courts may not be used to pursue a Sherman Act claim, even if a U.S. plaintiff might have a valid Sherman Act claim arising out of the conduct's effect on U.S. commerce.
Pages: 6
Date: June 30, 2005