Opposition Brief — ASA v. HeereMac

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No. 00-1842 200)

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In The

Supreme Court of the United States

STATOIL ASA,

Petitioner,

HEEREMAC V.O.F., ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

THE SAIPEM RESPONDENTS’ BRIEF

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

KatHuy D. Patrick Rosin C. Gipss

JENNIFER HorAN GREER (Counsel of Record)

JoHN A. BASINGER Gisss & Bruns, L.L.P.

Gisss & Bruns, L.L.P. 1100 Louisiana, Suite 5300

1100 Louisiana, Suite 5300 Houston, Texas 77002

Houston, Texas 77002 Telephone: (713) 650-8805

Telephone: (713) 650-8805 Telecopier: (713) 750-0903

Telecopier: (713) 750-0903 Counsel for the Saipem

Respondents

July 12, 2001

QUESTIONS PRESENTED

Does the Sherman Act, which governs U.S. “com-

merce . . . with foreign nations,” apply to a Nor-

wegian company’s claim that its Norwegian opera-

tions were damaged by alleged overcharges by

English and Dutch defendants on projects that

occurred exclusively in the North Sea?

Can a foreign plaintiff whose only alleged injuries

were incurred in a foreign country from the foreign

effects of an alleged agreement among foreign defen-

dants in connection with foreign transactions estab-

lish U.S. antitrust jurisdiction, and avoid the

operation of the Foreign Trade Antitrust Improve-

ments Act, merely by alleging that the foreign defen-

dants’ conduct also had an effect on some other

person in U.S. domestic commerce?

When a foreign plaintiff’s alleged injury arises out of

the effect that foreign defendants’ conduct has on

foreign, rather than U.S. domestic commerce, does the

foreign plaintiff have standing to assert claims under

the U.S. antitrust laws?

PARTIES TO THE PROCEEDING

Petitioner Statoil ASA was previously known as Den

norske stats oljeselskap a.s.

Respondents are HeereMac v.o.f.; Heerema Marine

Contractors; Heerema Offshore Services U.S., Inc.; Heer-

ema Offshore Construction Group, Inc.; Jan Meek, Pieter

Heerema; McDermott International, Inc.; McDermott

Incorporated; J. Ray McDermott, Inc.; J. Ray McDermott,

S.A.; J. Ray McDermott Gulf Contractors, Inc.; McDer-

mott Engineers & Constructors (USA), Inc.; McDermott

Engineering Houston, L.L.C.; McDermott-ETPM, Inc.;

Saipem S.p.A.; Saipem International B.V.; Saipem UK

Limited; Saipem (Portugal)-Comercio Maritimo,

Sociedade Unipessoal, S.A.

CORPORATE DISCLOSURE STATEMENT

Respondent Saipem (Portugal)-Comercio Maritimo,

Sociedade Unipessoal, S.A. is wholly owned by Saipem

(Portugal) Gestaéo e Participigoes SGPS S.A., which is

wholly owned, along with Respondent Saipem UK Lim-

ited, by Respondent Saipem International B.V. Respon-

dent Saipem International B.V. is wholly owned by

Respondent Saipem S.p.A. Respondent Saipem S.p.A. is

partially owned (approximately 40 percent) by Eni, S.p.A.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................0..c0ce. i

PARTIES TO THE PROCEEDING .................. ii

CORPORATE DISCLOSURE STATEMENT .......... ii

a en UREN a Ses da 6 bddues 006 ccenks one iii

SONAR WOT SURFER IREEMD 5 05 ccc cnccecnsisveccces. v

RELEVANT STATUTORY PROVISIONS............. 1

STATEMENT OF THE CASE.............c0cccceese 1

I. Factual Background’and Allegations......... 1

II. Proceedings in the Lower Courts............ 2

A. The District Court Dismissed Statoil’s

Claims, But Retained Jurisdiction Over

Claims Based on Injuries that Arose from

Anticompetitive Effects on U.S. Com-

ED Sh NEN Eis Keen heeeeekel OebCLi secs 2

B. The Fifth Circuit Affirmed the Dismissal

er OE W CD ooo Co oe Sovcwccs .. 3

I. The Fifth Circuit’s Decision Presents No Con-

ERS pe eRe gary ene an 7

A. Every Court that Has Considered the

Meaning of § 6a(2) Has Agreed with the

Fifth Circuit’s Analysis ................. 7

B. The Cases on Which Statoil Relies Are

Entirely Consistent with the Fifth Circuit's

EES AS Ray i yas ar ane 10

TABLE OF CONTENTS — Continued

Page

II. The Fifth Circuit Correctly Held that There Is

No Jurisdiction in this Case................. 14

A. The Sherman Act Does Not Apply to

Commerce Within or Between Foreign

PO gute ovdsiccncvakodkéuveds wane: 14

B. The FTAIA Precludes Jurisdiction Over

EE NN vo 6 cies chk ap en indacces 15

1. The Plain Language of the FTAIA Pre-

CRU SUICIIS o o kc dvs eps ccvende 16

2. The Legislative History of the FTAIA

Confirms that There Is No Jurisdic-

3. Policy Considerations Support the

Fifth Circuit’s Decision.............. 25

Ill. The Fifth Circuit’s Judgment Can Be Sup-

ported on the Independent Ground that

g Seatoll Lacks SURGE ooo ec civ ceccccsccses 28

> SE hao oka 00005 dha canvewannssaenes 30

TABLE OF AUTHORITIES

Page

CASES

Associated General Contractors of Calif., Inc. v. Cali-

fornia State Council of Carpenters, 459 US.. 319

Gt.) ern rrerrrerr trey rere seer er re 28

Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S.

SBS CIGOG) oo nnn cccnscncnseserncsnnccnuanesonss 28, 29

de Atucha v. Commodity Exchange, Inc., 608 F. Supp.

510 (S.D.N.Y. 1985) 00... - eee e cece cere ence eee neees 29

In re Auction Houses Antitrust Litigation, 138

F. Supp. 2d 548 (S.D.N.Y. 2001).....--++-+++++eeees 7

Caribbean Broadcast System v. Cable & Wireless, 148

F.3d 1080 (D.C. Cir. 1998)........-. eee eee renee 11, 12

Central Bank v. First Interstate Bank, 511 U.S. 164

GOODS oc vias ccacene sc litcntacsdeseviushinanee aves Fo

EEOC v. Aramco, 499 U.S. 244 (1991) .......---+- eee 15

Empagran, S.A. v. F. Hoffman-La Roche, Ltd., No.

00-1686 (TFH), 2001 WL 761360 (D.D.C. June 7,

se MOL OL Pe ery ony Str ry fre torre 7,9

Eurim-Pharm GmbH v. Pfizer, Inc., 593 F. Supp. 1102

(S.D.N.Y. 1984) ......0c eee ce cece cece cece ce eeececes 13

Ferromin Int'l Trade Corp. v. UCAR Int'l, No. 99-693

(E.D. Pa. June 13, 2001) ......-----+-e sere 8, 9, 10

Hartford Fire Insurance Co. v. California, 509 U.S.

764 (1993)... cree cece ccc n cece ecnrcerenceeceeeeere 11

Kruman v. Christie’s International plc, 129

F. Supp. 2d 620 (S.D.N.Y. 2001)......-.--+--- 7, 8, 24

Liamuiga Tours v. Travel Impressions, Ltd., 617

F. Supp. 920 (E.D.N.Y. 1985) .....--.+eeeer rere eee 13

TABLE OF AUTHORITIES - Continued

Page

McElderry v. Cathay Pacific Airways, 678 F. Supp.

SO71 GEIL TGR coos sccoccsccsctccssvbcasvecccs 13

McGlinchy v. Shell Chemical Co., 845 F.2d 802 (9th

Che, BIGGD ccncccccecéccavsssetecacendapeapauenenes 13

Metallgesellschaft AG v. Sumitomo Corp. (In re Cop-

per Antitrust Litigation), 117 F. Supp. 2d 875

(WD. Wit, BERG ccicccccoceséasnctuscesns 7, 9, 16, 19

In re Microsoft Corp., 127 F. Supp. 2d 702 (D. Md.

BOA} occ cccccccsene shou isecevpeadeacaeion 7, 8, 24, 29

Pfizer, Inc. v. Government of India, 434 U.S. 308

CRGFEP oo 0 cnc iteesdccuvesginiavenseee 10, 11, 22, 23, 27

Schlesinger v. Herzog, 2 F.3d 135 (5th Cir. 1993)...... 18

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992)....... 15

ULS. wo Gonmnmien, Gab GEA BAR biveciensecc ccusas 20

U.S. v. Maldonado-Rivera, 922 F.2d 934 (2d Cir.

IDOE). cccveciscccadeccddacadvsvedusesseduveleuses 18

U.S. v. Nippon Paper Industrial Co., 109 F.3d 1 (ist

Cos, 2008} vcvcccnticceadccsgetsdeestkceencedurietas 12

STATUTES AND RULES

1S USL. © Bn cccccvasccnssccacvagskeseseans 1, 3, 11, 14

1S USL, 6 Bvcsoccoscnerccsacdsuaveasécseawens 1, 3, 14

1S UBL. § Gti civcdsvcnsivicicvevsdsahecvauvens passim

Rod. BR. Clu. PR. RRRIGEs cdinccvccccnducccsassdscuuuaae 18

Sin Cin. BR. TS GGA) os ceived. ck ccwihcssaceeaieeenen 4

Vii

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

H.R. Rep. No. 97-686, ForeiGN TRADE ANTITRUST

IMPROVEMENTS AcT oF 1982, reprinted in 1982

CIBEL AI, BOT oc ccccccccvccccsccsscccesas 20-25, 27

De.uxe Biack’s Law Dictionary (6th ed. 1990) ....... 17

THe Oxrorp ENcusH Dicrionary OF ENGLISH GRAM-

BAAR (1994)... cc ccccccccccccccccccccccccssccccccces 17

IA Phillip Areeda & Herbert Hovenkamp, AnTI-

TRUST LAW (1997).........ccceee cece cece ceeeeeee 14, 28

U.S. Dep’t of Justice, Antitrust Div., International

Competition Pol’y Advisory Comm., Final

Report to the Attorney General and Assistant Attor-

ney General for Antitrust 247 (Feb. 2000).........-. 27

U.S. Dep’t of Justice & Federal Trade Comm'n,

Antitrust Enforcement Guidelines for International

Operations § 3.12 (1995), reprinted in 4 Trade Reg.

Rep. (CCH) { 13,107 ........---eeeeeee eee ee cence 27

A. Douglas Melamed, Promoting Sound Antitrust

Enforcement in the Global Economy, Address

Before the Fordham Corporate Law Institute

27th Annual Conference on International Anti-

trust Law and Policy (October 19, 2000), avail-

able at <www.usdoj.gov/atr/public/

speeches/6785.htm> .......---+-eeeeeeeeeeeeeeeees 27

Mark R.A. Palim, The Worldwide Growth of Competi-

tion Law: An Empirical Analysis, ANTITRUST BULLE-

Tin 105 (March 22, 1998)........--- eee cece e eee eeee 26

RELEVANT STATUTORY PROVISIONS

The relevant statutory provisions are the Sherman

Act, 15 U.S.C. §§ 1, 2, and the Foreign Trade Antitrust

Improvements Act of 1982, 15 U.S.C. § 6a. These statutes

are set forth in full in the Appendix to this brief. See App.

39a.

STATEMENT OF THE CASE

I. Factual Background and Allegations

A foreign plaintiff alleges that its foreign operations

have been damaged by the foreign effects of an alleged

agreement among foreign defendants. Statoil is a Nor-

wegian corporation with its principal place of business in

Norway. 16 R. 417. The Saipem Defendants are also for-

eign citizens. 16 R. 411-08. Statoil’s claims concern alleged

damages that were “incurred in the Norwegian sector of

the North Sea.” Id. Specifically, Statoil contends that

Saipem! or another foreign firm overcharged Statoil for

the provision of heavy-lift services in connection with the

construction of oil and gas platforms in the North Sea.

Although Statoil makes conclusory allegations that

Saipem participated in a worldwide conspiracy that had

an effect on U.S. commerce, Statoil does not allege that its

injury arose from these effects on U.S. commerce. Pet. 5.

_Nor could it: Statoil does not allege that it owns any

platforms in U.S. waters, and it does not allege that it

purchased any of the relevant goods or services in U.S.

commerce.

1 “Saipem” refers to all Saipem entities named as

defendants in this action.

Statoil incorrectly suggests that HeereMac’s agree-

ment to plead guilty to violating the Sherman Act in 1999

is somehow relevant to its claim of U.S. antitrust jurisdic-

tion over Saipem in this case. Saipem is not named in the

HeereMac information or the plea. Furthermore, Heere-

Mac’s plea relates only to the effects of its conduct on

U.S. commerce, and HeereMac disputes in the plea that

its conduct affecting foreign commerce is subject to U.S.

law. Pet. App. at 61a-62a. In any event, Statoil has not

alleged, and cannot allege, that it has been harmed in the

U.S. domestic market place.

II. Proceedings in the Lower Courts

A. The District Court Dismissed Statoil’s Claims,

But Retained Jurisdiction Over Claims Based

on Injuries that Arose from Anticompetitive

Effects on U.S. Commerce

After HeereMac pleaded guilty, companies from

around the world converged on the federal courts in

Houston to seek redress under the U.S. antitrust laws.

They named as defendants the world’s providers of

heavy-lift services, including Saipem.

The first cases were filed by Phillips Petroleum Com-

pany and three of its foreign-based subsidiaries. 1 R.

2096. The Phillips plaintiffs alleged injury to several proj-

ects, only one of which was in U.S. waters in the Gulf of

Mexico. 1 R. 2075-2073. The other projects were located in

the North Sea and the Far East, and the purchasers of

heavy-lift services on those projects were Phillips’ for-

eign-based subsidiaries. 1 R. 2073-2070. The district court

dismissed the claims of the foreign subsidiaries regarding

projects in foreign waters, aca ai those injuries did not

arise from an effect on U.S. commerce. 7 R. 4143 et seq.

The district court did not dismiss the claims related to the

Phillips platform in U.S. waters. 7 R. 3966. Pet. App.

49a-50a. The district court also concluded (contrary to

Statoil’s suggestion, Pet. 6) that Saipem’s actions did not

have a direct, substantial, and reasonably foreseeable

effect on U.S. commerce. Pet. App. 5la.

Statoil filed its action in Houston shortly before the

foreign claims were dismissed in the Phillips case. Based

on its reasoning in the Phillips case, the district court

dismissed Statoil’s claims because of a lack of subject

matter jurisdiction and because Statoil lacked standing

under U.S. antitrust laws. Pet. App. 50a-52a.

B. The Fifth Circuit Affirmed the Dismissal of

Statoil’s Claims

The Fifth Circuit affirmed on three grounds. First,

the court held that Statoil’s claims are not cognizable

under the Sherman Act itself, as they do not involve “

‘trade or commerce . . . with foreign nations.’ ” App. 12a

(quoting 15 U.S.C. §§ 1, 2).2 “The commerce that gives

rise to the action here — the contracting for heavy lift

barge services in the North Sea - was not United States

commerce with foreign nations, but commerce between or

among foreign nations — that is, between or among Statoil

(a Norwegian corporation), Saipem (England), and Heer-

eMac (The Netherlands).” Id. (emphasis in original). The

2 The Fifth Circuit’s opinion is included in the Appendix to

this Opposition, using the same page numbers as those in

Statoil’s Appendix.

Sherman Act, by its terms, simply does not apply to this

wholly foreign commerce.

Second, the Fifth Circuit held that the plain language

of § 6a(2) of the FTAIA requires Statoil to allege that its

claim arose from the effect of the alleged conduct on U.S.

commerce. App. 14a, 16a. Because Statoil’s alleged injury

does not “stem from the effect of higher prices for heavy-

lift services in the Gulf [of Mexico],” the court held that

Statoil cannot meet the FTAIA’s requirements for anti-

trust jurisdiction. App. 14a.

Third, the Fifth Circuit held that Statoil lacks stand-

ing. App. 22a n.32.

Judge Higginbotham dissented, arguing that § 6a(2)

“removes jurisdiction over conspiracies whose effects on

United States commerce are beneficial or benign... . ”

App. 25a. The Fifth Circuit denied en banc review, with no

judge requesting a poll.? Pet. App. 54a.

To bolster its claim that this case presents a conflict -

in “rationale” — among the circuits, Statoil suggests that

the Fifth Circuit believed that federal courts disagree as

to the appropriate test for the extraterritorial reach of the

Sherman Act. Pet. 6. But the Fifth Circuit made clear that

the issue was one of first impression in the courts of

3 Judge Higginbotham’s suggestion that rehearing en banc

would have been granted but for the recusal of three judges

rings hollow because (1) there were still a sufficient number of

judges eligible to vote to grant en banc review, and (2) not a

single judge called for a poll, though all active judges plainly

had the right to do so. 5th Cir. R. 35 (1.0.P.). See Pet. App. 55a.

appeals, and that the district courts addressing it had all

reached the same conclusion as the Fifth Circuit: namely,

that the FTAIA bars jurisdiction over a foreign party’s

claims that arise out of foreign effects of a defendant’s

alleged conduct. See App. 9a n.13, 18a.

REASONS FOR DENYING THE WRIT

This case presents the question whether U.S. antitrust

jurisdiction reaches the claims of a foreign plaintiff whose

injuries arise from the effects on foreign commerce of the

defendants’ alleged conduct. The Fifth Circuit answered

this question in the negative on three separate and inde-

pendent grounds: (1) Statoil’s claims are not cognizable

under the Sherman Act, (2) Statoil’s claims are barred

under the Foreign Trade Antitrust Improvements Act of

1982 (“FTAIA”), and (3) Statoil cannot establish antitrust

standing. Statoil focuses almost exclusively on the second

issue, but to no avail: nothing in the Fifth Circuit’s inter-

pretation of the FTAIA warrants the grant of the Petition.

The Fifth Circuit is the only court of appeals to

interpret the relevant provision of the FTAIA, 15 U.S.C.

§ 6a(2). It concluded that the FTAIA, its legislative his-

tory, and policy considerations compel the conclusion

that plaintiffs may not recover under the U.S. antitrust

laws for injuries arising in foreign commerce. The grow-

ing number of district courts that have addressed the

issue have reached the same conclusion.

Unable to prevail on the question actually presented

by this case, Statoil simply changes the question. Rather

than arguing, as the FTAIA requires, that its injury arises

from the anticompetitive effect on U.S. commerce of the

defendants’ conduct, Statoil argues that its claim “arises

directly out of the anticompetitive conduct.” Pet. i

(emphasis added). Statoil also focuses its argument on

authorities that stand for the unremarkable proposition

that antitrust plaintiffs must allege that the defendants’

conduct has an anticompetitive effect on U.S. commerce.

Statoil, however, cites no authority for the proposition

that a plaintiff’s own injury need not arise from those

anticompetitive effects on U.S. commerce.

Statoil’s inability to find supporting authority stems

from the fact that the courts understand what Statoil does

not: Congress intended the FTAIA to limit the application

of the antitrust laws to injuries arising from anticompeti-

tive effects on U.S. commerce. In doing so, Congress

expressly desired to respect the sovereignty of other

nations to govern their own markets and to encourage

those nations to adopt their own competition laws.

Statoil’s alarmist suggestion that, absent the benign hege-

mony of the U.S. antitrust laws, international cartels will

rule the world ignores the widespread adoption of com-

petition laws around the globe, as well as the substantial

deterrent effects that remain under the Fifth Circuit’s

decision. Nothing in the FTAIA, its legislative history, or

relevant policy considerations requires the United States

to be the world’s forum for the resolution of all competi-

tion-related grievances.

For these and other reasons, the petition for writ of

certiorari should be denied. First, the Fifth Circuit’s deci-

sion presents no conflict among circuits. Second, it does

not present a question of national importance to the U.S.

economy that the Court should address at this time.

Finally, and most importantly, the decision below is cor-

rect.

I. The Fifth Circuit’s Decision Presents No Conflict

Statoil attempts to manufacture a conflict in this case

by arguing that the Fifth Circuit’s “rationale is inconsis-

tent with that of relevant Supreme Court and appellate

court precedents.” Pet. 10 (emphasis added). Statoil must

resort to arguments about “rationales” because every case

that has considered the statutory provision at issue has

agreed with the Fifth Circuit. In any event, the decisions

of other courts are entirely consistent with the Fifth Cir-

cuit’s decision.

A. Every Court that Has Considered the Meaning

of § 6a(2) Has Agreed with the Fifth Circuit's

Analysis

As the Fifth Circuit recognized, this case presented

an issue of first impression in the courts of appeals with

respect to the interpretation of § 6a(2)’s requirement that

the forbidden effects on U.S. commerce must “give rise to

a claim.” See Pet. App. 9a n.13, 18-19a. But the district

courts that have considered the issue have agreed, in a

“ynanimous line of authority,” with the Fifth Circuit's

interpretation of the FTAIA. In re Auction Houses Antitrust

Litig., 138 F. Supp. 2d 548, 551 (S.D.N.Y. 2001). See Kruman

v. Christie’s Int’l plc, 129 F. Supp. 2d 620 (S.D.N.Y. 2001); In

re Microsoft Corp., 127 F. Supp. 2d 702 (D. Md. 2001);

Metallgesellschaft AG v. Sumitomo Corp. (In re Copper Anti-

trust Litig.), 117 F. Supp. 2d 875 (W.D. Wis. 2000);

Empagran, S.A. v. F. Hoffman-La Roche, Ltd., No. 00-1686

(TFH), 2001 WL 761360 (D.D.C. June 7, 2001); Ferromin

Int’l Trade Corp. v. UCAR Int'l, No. 99-693 (E.D. Pa. June

13, 2001). Neither the Dissent nor Statoil attempts to

distinguish these cases.

For example, in Christie’s, the plaintiffs alleged a

conspiracy to fix prices for auction services in the United

States and abroad. 129 F. Supp. 2d at 622. Christie’s raised

the same question as does this case:

The fundamental question here is whether a

transnational price fixing conspiracy that affects

commerce both in the United States and in other

countries inevitably gives persons injured

abroad in transactions otherwise unconnected

with the United States a remedy under our anti-

trust laws. Unless the Court is to impute to

Congress an intention to establish an antitrust

regime to cover the world, the answer must be

“no.”

Id. at 623-24. The court therefore dismissed the claims of

the plaintiffs who purchased the defendants’ auction ser-

vices abroad. Id. at 626.

Likewise, In re Microsoft rejected claims made by

purchasers in foreign commerce, even though Microsoft's

alleged conduct had substantial effects on U.S. commerce.

Like Statoil, the foreign Microsoft plaintiffs alleged that

they were injured by the same conduct that affected U.S.

commerce, and that their injuries were necessary to

achieve the anticompetitive effects felt in the United

States. See 127 F. Supp. 2d at 716. The court, however,

held “that a plaintiff who has not participated in the U.S.

domestic market may not bring a Sherman Act claim

under the FTAIA.” Id.

The court in Sumitomo reached a similar conclusion.

The Sumitomo plaintiffs alleged that the defendants con-

spired to restrain trade on the London Metals Exchange,

where 95% of the world’s copper futures are traded, and

which serves as the primary exchange for merchants and

traders in the United States. See 117 F. Supp. 2d at 878.

The plaintiffs contended that by artificially driving up the

price of copper futures on the LME, the defendants

caused copper prices in the United States to be artificially

inflated. Id. at 879-80. The plaintiffs, however, were for-

eign entities that were injured by adverse effects on the

LME. Id. at 877, 880, 887. The Sumitomo court dismissed

the plaintiffs’ claims, holding that “[t]he logical inter-

pretation of the language of § 6a is that Congress extends

domestic jurisdiction to extraterritorial conduct only

when the plaintiffs have been injured by the effects on the

domestic market.” Id. at 887.

The court in Empagran granted defendants’ motion to

dismiss antitrust claims brought by purchasers of vita-

mins in foreign commerce. See 2001 WL 761360, at *1. Like

Statoil, the Empagran plaintiffs alleged a global conspir-

acy to fix the price of their product in the United States

and abroad. See id. at *1, 2. The court held that the

plaintiffs were required, but failed, to allege that “the

injuries they seek to remedy ‘arise’ from an anticompeti-

tive effect of defendants’ conduct on U.S. commerce.” Id.

at *2.

Most recently, Ferromin dismissed claims brought by

purchasers in foreign commerce who alleged price fixing

and market allocation in the “worldwide market for

graphite electrodes.” Slip op. at 2-3. The court reviewed

the applicable caselaw and concluded that “[t]he one

federal appeals court and many district courts” address-

ing § 6a(2) all concluded that plaintiffs asserting a claim

under U.S. antitrust laws must “show both that the com-

plained-of conduct had a direct, substantial and reason-

ably foreseeable effect on the United States domestic

marketplace, and that an anticompetitive effect on the

United States marketplace must give rise to plaintiff's

claimed injuries.” Id. at 6 (emphasis in original). Neither

Statoil nor the Dissent address this “unanimous line of

authority” supporting the Fifth Circuit’s decision.

B. The Cases on Which Statoil Relies Are Entirely

Consistent with the Fifth Circuit’s Decision

In an effort to buoy its novel interpretation of the

FTAIA, Statoil points to several cases that it contends

conflict with the Fifth Circuit’s “rationale” or “approach”

in this case. Most of those cases involve plaintiffs who

sustained their injury in U.S. commerce, and thus are

entirely consistent with the Fifth Circuit’s decision.

For example, as the Dissent in this case conceded, the

plaintiff in Pfizer, Inc. v. Government of India, 434 U.S. 308

(1978), made its purchases in the United States. Pet. App.

29a. See Pfizer, 434 U.S. at 318 (“When a foreign nation

enters our commercial markets as a purchaser of goods or

services, it can be victimized by anticompetitive practices

just as surely as a private person or domestic state.”)

(emphasis added). In any event, antitrust jurisdiction was

not raised in Pfizer, which considered only whether for-

eign nations are “persons” under the Clayton Act: “We

hold today only that a foreign nation otherwise entitled

to sue in our courts is entitled to sue for treble damages

under the antitrust laws to the same extent as any other

plaintiff.” Id. at 320 (emphasis added).

Likewise, the plaintiffs in Hartford Fire Ins. Co. v.

California, 509 U.S. 764 (1993), were nineteen U.S. states

and certain private plaintiffs who asserted injury arising

from the domestic effects of a conspiracy directed at the

domestic marketplace: they alleged that the defendants

“conspired in violation of § 1 of the Sherman Act to

restrict the terms of commercial general liability (CGL)

insurance available in the United States.” Id. at 770

(emphasis added).

The plaintiffs in Caribbean Broadcast System v. Cable &

Wireless, 148 F.3d 1080 (D.C. Cir. 1998), also alleged an

injury arising out of harm to domestic commerce. In

Caribbean, the plaintiff was a radio broadcaster that was

physically located in the British Virgin Islands, but which

broadcast to the Eastern Caribbean, including the U.S.

Virgin Islands and Puerto Rico. Id. at 1082. Although the

plaintiff was foreign, it nevertheless alleged an injury

arising from domestic effects - namely, that defendants,

which operated a competing radio station, had monopo-

lized and therefore prevented the plaintiff from partici-

pating in the U.S. market for radio advertising. See 148

F.3d at 1087 (stating that plaintiff “alleges that [plaintiff]

was and remains foreclosed from selling advertising to

many of those U.S. companies that had purchased adver-

tising time from [defendant]” at supracompetitive prices);

id. at 1086 (observing jurisdiction proper because “the

alleged injury is to advertisers in the United States”).

Nothing in the opinion supports Statoil’s assertion that

Caribbean permitted the plaintiff to pursue all of its

claims for damages, whether based on foreign or domes-

tic effects. See Pet. 25. In any event, the parties in Carib-

bean did not raise, and the court did not consider,

whether the FTAIA requires proof that the plaintiff's

injury arose from the anticompetitive effect on U.S. com-

merce.*

Statoil’s reliance on U.S. v. Nippon Paper Indus. Co.,

109 F.3d 1 (1st Cir. 1997), is similarly misplaced. The

indictment in Nippon alleged that the defendant and

others agreed “to fix the price of thermal fax paper

throughout North America” and that the defendant “sold

thermal fax paper worth approximately $6,100,000 for

import into the United States.” Id. at 2 (emphasis added).

Nippon thus involved targeted sales by the conspirators

into the United States with injuries flowing from the

effects of that conspiracy within the United States. In any

event, Nippon expressly disclaimed reliance on the FTAIA

and made no pretense of interpreting it. See id. at 4.

Statoil also cites dicta from numerous cases to sup-

port the argument that those cases “point in a direction

* The Caribbean court observed that the plaintiff raised only

two issues: (1) whether the case was an export case governed by

§ 6a(1)(B), see id. at 1086, or (2) whether “the complaint failed to

allege either harm to U.S. commerce or a relevant market,” id. at

1085, 1086-87. With respect to the latter, the defendants were

making the argument - common to antitrust suits brought by

competitors — that harm to a competitor is not necessarily harm

to competition. The court rejected the defendants’ argument,

holding that “injury to [the plaintiff] is ultimately a harm to U.S.

purchasers of radio advertising,” because “[b]y keeping [the

plaintiff] out of the market, [the defendants] denied such

purchasers the benefit of competition.” 148 F.3d at 1087.

quite different” from the Fifth Circuit’s decision merely

because they state that a plaintiff must allege that the U.S.

market has suffered an anticompetitive effect. Pet. 27-28.

However, in each of those cases, the court’s refusal to

assert jurisdiction was proper because the plaintiffs’

claims did not arise from any forbidden effects on U.S.

commerce.° Statoil’s reliance on those cases is therefore

puzzling,® and they further demonstrate the unanimity

5 See McGlinchy v. Shell Chem. Co., 845 F.2d 802, 815 (9th Cir.

1988) (holding no jurisdiction where plaintiffs aileged they sold

pipe in the U.S. and overseas, but their alleged injury arose from

termination of an agreement to be defendant’s “exclusive

representative in the sale, promotion and distribution of PB

resin and products in South East Asia and other areas” and

where plaintiffs alleged only injury to themselves, rather to

competition in the relevant market); Eurim-Pharm GmbH v.

Pfizer, Inc., 593 F. Supp. 1102, 1103-04, 1106 (S.D.N.Y. 1984)

(dismissing claims of German wholesaler, distributer, importer

and exporter of pharmaceuticals that alleged price fixing in

world market for Vibramycin artificially inflated the price in the

United States); Liamuiga Tours v. Travel Impressions, Ltd., 617

F. Supp. 920, 924 (E.D.N.Y. 1985) (“The consequences suffered

by plaintiff are limited to St. Kitts. Accordingly, these effects do

not establish a jurisdictional nexus.”) (emphasis added);

McElderry v. Cathay Pacific Airways, 678 F. Supp. 1071 (S.D.N.Y.

1988) (finding lack of subject matter jurisdiction where

American citizen alleged illegal overcharges in foreign

commerce).

6 Even if Statoil could prove an anticompetitive effect on a

U.S. market, that would not be sufficient to show that U.S.

antitrust jurisdiction exists. Statoil incorrectly assumes that

because proof of an anticompetitive effect on the U.S. is a

necessary element, it must also be sufficient, standing alone, to

establish jurisdiction. As every court that has decided this issue

has held, the FTAIA requires proof not only of a domestic

anticompetitive effect, but also that the plaintiff’s injury arose

with which courts have concluded that the FTAIA does

not permit jurisdiction over claims arising out of foreign

effects.

II. The Fifth Circuit Correctly Held that There Is No

Jurisdiction in this Case

There is a reason no plaintiff has persuaded any

court to assert antitrust jurisdiction over the claims of a

plaintiff in a foreign market with no injuries arising from

an effect on U.S. commerce: both the Sherman Act and

the FTAIA preclude jurisdiction in such cases.

A. The Sherman Act Does Not Apply to Commerce

Within or Between Foreign Nations

First, Statoil does not even attempt to challenge the

Fifth Circuit’s holding that Statoil’s claims are outside the

scope of the Sherman Acct itself. App. 12a. The Act applies

only to actions affecting “trade or commerce among the

several states or with foreign nations.” 15 U.S.C. §§ 1, 2

(emphasis added). Statoil, a Norwegian company, pur-

chased heavy-lift services in the Norwegian sector of the

North Sea from foreign entities like Saipem. Thus, it

improperly seeks to apply the Act to commerce between

foreign nations. See IA Phillip Areeda & Herbert Hov-

enkamp, Antitrust Law { 273, at 383 (1997) (term “com-

merce . . . with foreign nations” “generally refers to

from that effect. Courts that find no U.S. effect obviously have

no need to address whether the plaintiff’s injury arose from that

nonexistent effect.

transactions in which a foreign seller deals with an Amer-

ican purchaser, or vice-versa... . ”) (“AREEDA”). This

conclusion is further supported by the presumption that,

absent an “affirmative intention of the Congress, clearly

expressed,” a statute is “primarily concerned with

domestic conditions.” See EEOC v. Aramco, 499 U.S. 244,

248 (1991). Because Statoil has waived this independent

ground supporting the Fifth Circuit’s judgment, see Taylor

v. Freeland & Kronz, 503 U.S. 638, 645-46 (1992), granting

the writ would be futile, as Statoil would not be entitled

to reversal even if the Court agreed with its challenges to

the Fifth Circuit’s holdings on the FTAIA and standing.

The Petition should be denied on this ground alone.

B. The FTAIA Precludes Jurisdiction Over Statoil’s

Claims

Statoil argues that § 6a(2)’s requirement that the

effect on U.S. commerce must “give[] rise to a claim”

under the Sherman Act means that as long as someone

sustained an antitrust injury in the U.S. market as a result

of the defendants’ conduct; then anyone, anywhere in the

world who sustained an injury in a foreign market as a

result of the same “conduct” likewise may invoke the

jurisdiction of U.S. courts. Statoil’s argument is contrary

to the text of the statute, its legislative history, and funda-

mental policy concerns underlying the statute’s passage.

1. The Plain Language of the FTAIA Precludes

Jurisdiction

The FTAIA removes Sherman Act jurisdiction over

certain transactions in commerce with foreign nations,

making it inapplicable to “conduct involving trade or

commerce . . . with foreign nations” unless “(1) such

conduct has a direct, substantial and reasonably foresee-

able effect” on U.S. domestic or import commerce, and

“(2) such effect gives rise to a claim” under the Sherman

Act. See 15 U.S.C. § 6a. Statoil’s claims are not cognizable

under the plain text of the statute, because Statoil does

not allege that its claims arise out of any effect on U.S.

commerce. Rather, its claims arise out of an effect, if any,

on foreign commerce. App. 14a-l6a. See Sumitomo, 117

F. Supp. 2d at 883 (“The most natural way of reading this

language is that antitrust laws do not apply unless the

effects are the same. In other words, the Sherman Act

claim that a plaintiff alleges and the Sherman Act claim

that arises out of the effect on an American market must

be the same.”) (emphasis in original).

The Fifth Circuit applied the FTAIA in this straight-

forward manner. Under the FTAIA, the conduct must

have a direct, substantial, and reasonably foreseeable

effect on U.S. commerce, and “such effect” on U.S. com-

merce must give rise to the claim. Statoil’s claims arise

out of alleged effects in the Norwegian sector of the

North Sea, in its transactions with British or Dutch enti-

ties, not from inflated prices it alleges were felt by other

purchasers participating in the U.S. marketplace in the

Gulf of Mexico. Statoil’s proffered interpretation seeks to

avoid the FTAIA’s requirement that the effect on domestic

commerce must give rise to its claim, by suggesting -

contrary to the statute - that it need plead only that the

“conduct” give rise to a claim by someone else in the U.S.

marketplace. See App. 15a; Pet. at i.

Statoil’s textual challenge to the Fifth Circuit’s deci-

sion is based entirely on the FTAIA’s use of a single word

in § 6a(2): “a.” Quoting the Dissent, Statoil argues that

““[t]he word “a” has a simple and universally under-

stood meaning. It is the indefinite article.’ ” Pet. 11 (quot-

ing App. 24a-25a). From this purportedly universal truth,

Statoil concludes that “gives rise to a claim” must mean

“gives rise to any claim.” Id.

But “a” may and often does have a specific reference.

As explained by the very treatise on which Statoil relies,”

the meaning of “a” must be determined from its context:

The word “a” has varying meanings and

uses. .. . [T]he meaning depends on context. For

example, in Workers’ Compensation Act, on, or

in or about “a” railway, factory, etc., was held

not to mean any railway, factory, etc., but the

railway, factory, etc. of the employer.

Detuxe Biacx’s Law Dictionary 1 (6th ed. 1990) (emphasis

added).® The fact that “a” is frequently specific is well

” Statoil relies on Black’s Law Dictionary, but quotes only

the definition of “the.” See Pet. 11 n.9.

® As another treatise explains, “[a]lthough a and an are

indefinite in meaning, reference may be general (any person or

thing of that class or kind) or more particular (an actual example

of the class or kind).” THe Oxrorp ENGLIsH DicTIONARY OF ENGLISH

Grammar 200 (1994) (providing as an example the sentence,

recognized elsewhere in the law. See U.S. v. Maldonado-

Rivera, 922 F.2d 934, 960 (2d Cir. 1990) (holding references

to “a conspiracy” meant “the conspiracy” with which

defendant was charged). Rule 12(b)(6) of the Federal

Rules of Civil Procedure likewise permits dismissal for

failure to state “a” claim, but is applied when the plaintiff

has failed to make allegations supporting the plaintiff’s

own claim. See, e.g., Schlesinger v. Herzog, 2 F.3d 135, 138

(5th Cir. 1993) (affirming dismissal of claims under Rule

12(b)(6) when plaintiffs failed to allege that they were

purchasers with standing to bring claim).

In this case, the context of the FTAIA establishes that

“a” should be interpreted as referring to the injury

sought to be redressed in the case. The statute on its face

is designed to restrict the scope of jurisdiction in Sher-

man Act cases. See 15 U.S.C. § 6a (“Sections 1 to 7 of this

title shall not apply ... unless... . ”). Statoil’s

interpretation turns the FTAIA on its head, expanding the

reach of U.S. antitrust laws to authorize jurisdiction over

the claims of every participant in a foreign marketplace

who alleges that someone else, who participated in U.S.

commerce, also sustained an injury. Nothing in the FTAIA

indicates an intent by Congress to turn the U.S. district

courts into the world’s forum for settling competition-

related grievances. See App. 15a-16a.?

“T’ve still got a card my grandfather sent from Kabul (specific: a

particular card and no other)”).

9 The presumption against extraterritoriality further

supports this interpretation. See page 15, supra. Statoil’s

contention that this presumption does not apply because the

FTAIA addresses extraterritoriality assumes the answer to the

question in this case: How far do the U.S. antitrust laws reach

Statoil further contends that the Fifth Circuit, by

reading § 6a(2) to require that the U.S. effects give rise to

the plaintiff’s claims, renders superfluous the following

proviso:

“If [the Sherman Act] appl[ies] to such conduct

only because of operation of paragraph (1)(B)

[i.e., based solely on effects on export com-

merce], then [the Sherman Act] shall apply to

such conduct only for injury to export business

in the United States.”

Pet. 14 (quoting 15 U.S.C. § 6a) (emphasis added). But the

proviso on its face is not designed to limit claims to those

that stem from the forbidden effect on U.S. export com-

merce. Rather, the proviso’s plain language imposes an

additional restriction: in export cases, it limits the type of

business that may sustain a compensable loss to “export

business in the United States.” Simply put, § 6a(2) limits

the requisite source of an actionable injury - effects on

U.S. commerce —- while the proviso addresses the identity

and location of businesses that may sustain compensable

injuries in export cases — export business in the United |

States. See Sumitomo, 117 F. Supp. 2d at 884. In the

absence of the proviso, foreign purchasers of a U.S.

exporter’s products could sue under the U.S. antitrust

laws after showing that their injury arose from the forbid-

den “effect” on U.S. export commerce. Id.

under the FTAIA? Because Congress has not clearly expressed

an intent to reach injuries arising in wholly foreign commerce

(indeed, it has clearly expressed the opposite intent), the

presumption applies.

2. The Legislative History of the FTAIA Con-

firms that There Is No Jurisdiction

Unable to find support in the FTAIA’s language,

Statoil spends the bulk of its petition arguing about legis-

lative history. But where, as here, there is a “straightfor-

ward statutory command, there is no reason to resort to

legislative history.” U.S. v. Gonzales, 520 U.S. 1, 6 (1997).

In any event, the legislative history squarely sup-

ports the Fifth Circuit’s interpretation. The report of the

Judiciary Committee makes clear that one of the “consid-

erations providing the basis for this legislation” was the

concern that “courts differ in their expression of the

proper test for determining whether United States anti-

trust jurisdiction over international transactions exists.”

H.R. Rep. No. 97-686, at 2. Thus, as Statoil recognizes, one

of the main purposes of the FTAIA is “to more clearly

establish when antitrust liability attaches to international

business activities.” Id. at 7. See Pet. 2. Consistent with

the plain text of the FTAIA, the legislative history con-

firms Congress’ intent to reach international activities

only when the plaintiff has participated in the U.S. mar-

ket, such that its claims arise from the forbidden effect of

the defendant’s activities on U.S. commerce:

. .. H.R. 5235 preserves antitrust protections in

the domestic marketplace for all purchasers,

regardless of nationality or the situs of the busi-

WONG: 6 0c

H.R. Rep. 97-686, at 10.

The committee also expressed the hope that “the

clarified reach of our own laws could encourage our

trading partners to take more effective steps to protect

competition in their markets.” Id. at 14. Under Statoil’s

reading of the statute, this purpose would be super-

fluous: only by clarifying that the U.S. antitrust laws do

not protect competition in foreign markets would the

FTAIA encourage our trading partners to enact their own

competition laws. As explained in more detail below,

Congress’ goal has largely been realized, as the vast

majority of nations involved in world trade have adopted

competition laws of their own. See pages 26-27, infra.

Furthermore, the Committee made clear that the

“claim” to which the legislation referred was the injury

for which the plaintiff or the government seeks redress,

not the injury of someone else:

The Committee did not believe that the bill

reported by the Subcommittee was intended to

confer jurisdiction on injured foreign persons

when that injury arose from conduct with no

anticompetitive effects in the domestic mar-

ketplace. Consistent with this conclusion, the

full Committee added language to the Sherman

and FTC Act amendments to require that the

“effect” providing the jurisdictional nexus must

also be the basis for the injury alleged under the

antitrust laws. This does not, however, mean

that the impact of the illegal conduct must be

experienced by the injured party within the

United States. As previously set forth, it is suffi-

cient that the conduct providing the basis of the

claim has had the requisite impact on the

domestic or import commerce of the United

States, or, in the case of conduct lacking such an

impact, on an export opportunity of a person

doing business in the United States.

Id. at 11-12, 13 (emphasis added).?°

Statoil points to nothing in the committee report that

states that Congress intended the FTAIA to allow anyone,

anywhere in the world to sue under the U.S. antitrust

laws upon a showing that some other person has a claim

arising out of the U.S. effects of the alleged conduct.

Rather, when read in context, the majority of the quota-

tions that Statoil plucks from the legislative history

merely stand for the unremarkable proposition that for-

eign parties who are injured in the U.S. market may sue

under the U.S. antitrust laws for that injury so long as

they can show that the conduct had a direct, substantial,

and reasonably foreseeable effect on the U.S. domestic

market. See, e.g., Pet. 8, 15, 18. Statoil, however, does not

allege that its injury arose from such U.S. market effects.

In its most selective use of legislative history, Statoil

omits key sentences (emphasized below) that confirm

10 Statoil contends that this section of the committee report

shows that Congress intended to require only that the conduct

have an anticompetitive effect on U.S. commerce. Pet. 13 n.11.

While the first sentence certainly refers to an anticompetitive

effect, the second sentence plainly requires that the injury for

which redress is sought must arise out of that effect. See H.R.

Rep. 97-686, at 12 (“[T]he ‘effect’ providing the jurisdictional

nexus must also be the basis for the injury alleged under the

antitrust laws.”). The last two sentences merely provide that the

party need not be physically in the U.S. when it sustains the

injury. For example, while the government of India may have

suffered its injury abroad in Pfizer, it suffered injury as a result

of pharmaceuticals purchases in the U.S. market. See pages

10-11, supra.

oe ERCIE Sore Nene Cm pwimige yt unan Ghennvomwe ns

23°

that foreign purchasers may recover under the FTAIA

only for injuries sustained in domestic commerce:

A course of conduct in the United States - €.8.,

price fixing not limited to the export market -

would affect all purchasers of the target prod-

ucts or services, whether the purchaser is for-

eign or domestic. The conduct has the requisite

effects within the United States, even if some

purchasers take title abroad or suffer economic

injury abroad. Cf, e.g., Pfizer Inc., et al. v. Govern-

ment of India, et al, 434 U.S. 308 (1978). Foreign

purchasers should enjoy the protections of our

antitrust laws in the domestic marketplace, just

as our citizens do. Indeed, to deny them this

protection could violate the Friendship, Com-

merce and Navigation treaties this country has

entered into with a number of foreign nations.

There are other reasons for preserving the

rights of foreign persons to sue under our laws

when the conduct in question has a substantial

nexus to this country. As the Supreme Court

pointed out in Pfizer, supra, 434 U.S. at 314-315,

to deny foreigners a recovery could under some

circumstances so limit the deterrent effect of

United States antitrust law that defendants

would continue to violate our laws, willingly

risking the smaller amount of damages payable

only to injured domestic persons.

H.R. Rep. No. 97-686, at 10 (emphasis changed). Compare

Pet. 18. Courts that have considered the portions of the

committee report cited by Statoil conclude that they com-

pel the conclusion that the FTAIA permits suit “only

where the conduct complained of had ‘direct, substantial

and reasonably foreseeable effects’ in the United States

and the effects giving rise to jurisdiction are also the basis

of the alleged injury.” E.g., Christie's, 129 F. Supp. 2d at

624-25. Nothing in the committee report “say[s] that juris-

diction actually exists if the plaintiff actually makes the

purchase abroad and does not otherwise participate in a

U.S. market.” In re Microsoft Corp., 127 F. Supp. 2d at 715.

Most of the remaining passages from the legislative

history cited by Statoil suggest that the requisite effect on

domestic commerce must be anticompetitive. See, e.g.,

Pet. 12-13. The committee report makes clear, however,

that the FTAIA was not intended to change prior law as

to when antitrust injury or an anticompetitive effect must

be shown, or the nature of such a showing. See H.R. Rep.

97-686, at 13 (stating the FTAIA “does not affect the legal

standards for determining whether conduct violates the

antitrust laws, and thus the substantial antitrust issues on

the merits of a claim would remain unchanged”).

Although Statoil quotes Rep. Rodino’s “Additional

Views” to support its argument that the “gives rise to a

claim” language was added to require that the effect must

be anticompetitive, Pet. 12, nothing in his statement

addresses whether the injury for which redress is sought

must also arise out of a domestic, rather than foreign,

anticompetitive effect. Moreover, Rep. Rodino’s “Addi-

tional Views” cannot override the report adopted by the

full committee, which expressly states that the language

was changed to ensure that the injury for which redress is

sought arose from the prohibited domestic effect:

[T]he full Committee added language to the

Sherman and FTC Act amendment to require

that the “effect” providing the jurisdictional

nexus must also be the basis for the injury

alleged under the antitrust laws.

H.R. Rep. 97-686, at 12.

3. Policy Considerations Support the Fifth Cir-

cuit’s Decision

Statoil ultimately retreats to the argument that the

Fifth Circuit’s construction of the statute “undermines the

deterrent effect of the federal antitrust laws.” Pet. 16. But

“policy considerations cannot override [the] interpreta-

tion of the text and structure” of a statute. Central Bank v.

First Interstate Bank, 511 U.S. 164, 188 (1994). As previ-

ously established, Congress has determined that U.S.

markets will be sufficiently protected if persons who

Sustain injuries in U.S. domestic markets can bring

claims. Statoil’s dissatisfaction with this judgment in no

way justifies rewriting the statute.

Notably, Statoil focuses almost exclusively on

whether the Fifth Circuit’s decision “undermines the

deterrent effect of the federal antitrust laws.” Pet. 16. It

offers no serious argument - much less empirical evi-

dence - that the Fifth Circuit’s decision will result in

insufficient deterrence of international cartels generally.

This omission is no oversight. The penalties available

under U.S. law as well as the law of other nations provide

ample deterrence, both before and after the Fifth Circuit's

decision.

For example, violators of the U.S. antitrust laws

remain subject to treble damages in private actions for all

effects on U.S. commerce.!! They may also be subject, in

government actions, to prison sentences, restitution, and

substantial fines. Statoil does not explain why any ratio-

nal corporation and its officers would subject themselves

to this array of penalties - including felony conviction

and the loss of personal liberty — by participating in any

part of an international conspiracy affecting U.S. com-

merce. It certainly cannot be assumed that rational busi-

nesses and corporate officers would consider these

penalties to be a reasonable cost of doing business.

Furthermore, Statoil itself has made clear that foreign

competition laws provide ample deterrence. Statoil’s sub-

missions to the district court show that Norway’s anti-

trust regime would apply to the conduct alleged by

Statoil, and that, upon proof of a violation, the Defen-

dants would have to disgorge and pay Statoil its full

damages. 16 R. 675-74. Indeed, Statoil has commenced

proceedings in Norway. Pet. 10 n.8.

Moreover, as of 1998, 70 countries, comprising 86% of

world trade, had enacted their own competition laws. See

Mark R.A. Palim, The Worldwide Growth of Competition

Law: An Empirical Analysis, ANtrrRust ButteTin 105, 109

(March 22, 1998). Just two years later, the number had

increased to nearly 90, and roughly 20 more were in the

11 Neither Saipem nor the other defendants argue that

foreign parties should be denied the right to sue under the

antitrust laws, provided that the other requirements of the

FTAIA are met (i.e., their injury arises from a direct, substantial

and reasonably foreseeable effect on domestic commerce). The

Fifth Circuit’s ruling does nothing to limit the rights of

consumers, domestic or foreign, injured in U.S. commerce. See

pages 2-4, supra.

———EEE>E—

process of drafting such laws. See A. Douglas Melamed,

Promoting Sound Antitrust Enforcement in the Global

Economy, Address Before the Fordham Corporate Law

Institute 27th Annual Conference on International Anti-

trust Law and Policy (October 19, 2000), available at

<www.usdoj.gov /atr/public/speeches/6785.htm>. Thus,

the congressional goal of encouraging the adoption of

antitrust regimes abroad has been fulfilled. See pages

20-21, supra (discussing H.R. Rep. 97-686, at 14).

This congressional goal also confirms that Congress

did not intend the United States to be the world’s forum

for the resolution of all competition-related grievances.

As the Fifth Circuit observed, Statoil’s strained inter-

pretation of the FTAIA would permit persons and entities

all over the world who have no contact with U.S. markets

to file suit in the United States claiming that they were

injured by conduct that also had an effect on U.S. com-

merce. App. 22a.

The “authorities” that Statoil cites to support its “pol-

icy” argument share the same infirmity suffered by its

citations to cases and legislative history: none states that

the FTAIA permits suits by foreign purchasers of foreign

goods or services who sustained their harm in foreign

markets. Certainly, Pfizer makes no such statement. See

pages 10-11, supra. Nor do the passages from the Depart-

ment of Justice materials on which Statoil relies state that

a foreigner’s injuries in a foreign market support U.S.

antitrust jurisdiction. See U.S. Dep’t of Justice, Antitrust

Div., International Competition Pol’y Advisory Comm.,

Final Report to the Attorney General and Assistant Attorney

General for Antitrust 247 (Feb. 2000) (“DOJ Report”), cited

in Pet. 17, 20 n.15, 21 n.16; U.S. Dep’t of Justice & Federal

Trade Comm’n, Antitrust Enforcement Guidelines for Inter-

national Operations § 3.12 (1995), reprinted in 4 Trade Reg.

Rep. (CCH) ¥ 13,107, cited in Pet. 19, 27.

Statoil has simply offered no support for the sugges-

tion that, unless U.S. antitrust law is extended to circle

the globe, international cartels will overrun the world.

III. The Fifth Circuit’s Judgment Can Be Supported on

the Independent Ground that Statoil Lacks Stand-

ing

Statoil’s lack of standing presents an independent

ground for affirming the judgments of the district court

and the Fifth Circuit. Statoil contends that if the FTAIA

permits antitrust jurisdiction, then Statoil necessarily has

standing. See Pet. 7 n.5. But antitrust standing requires a

more intensive inquiry. See Associated General Contractors

of California v. California State Council of Carpenters, 459

U.S. 519, 535 n.31 (1983). A private plaintiff must prove

“antitrust injury,” which requires “injury of the type that

antitrust laws were intended to prevent and that flows

from that which makes the conduct illegal.” Atlantic Rich-

field Co. v. USA Petroleum Co., 495 U.S. 333, 334 (1990).

Statoil’s claims meet neither requirement.

First, Statoil’s alleged injury is not of the type the

antitrust laws were intended to prevent: “[T]he concern

of the [U.S.] antitrust laws is the protection of American

consumers and American exporters, not foreign con-

sumers or producers.” AREEDA, { 272h2, at 362-63

(emphasis in original). Statoil alleges that, although its

injury arose in foreign commerce, the U.S. antitrust laws

nevertheless apply because consumers in U.S. commerce

suffered injury. Statoil, however, may not recover based

on harms to those consumers. See de Atucha v. Commodity

Exchange, Inc., 608 F. Supp. 510, 518 (S.D.N.Y. 1985)

(plaintiff injured in foreign commerce cannot claim stand-

ing based on injury to consumers in domestic commerce);

In re Microsoft, 127 F. Supp. 2d at 716 (holding that, even

if jurisdiction were proper under the FTAIA, foreign

plaintiffs who suffered effects in foreign commerce had

no standing).

Second, Statoil’s injury does not “flow[ ] from that

which makes defendants’ acts unlawful.” Aflantic Rich-

field, 495 U.S. at 334. Under the FTAIA, merely engaging

in conduct that has anticompetitive effects in foreign

commerce does not violate the U.S. antitrust laws. Con-

duct is rendered unlawful only when it causes anticom-

petitive effects in U.S. commerce. But Statoil cannot argue

that its injury “flows from that which makes defen¢lants’

acts unlawful” — the alleged effect on U.S. commerce.

Accordingly, even if jurisdiction exists under the FTAIA,

the Fifth Circuit’s judgment should be affirmed based on

Statoil’s lack of standing.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Gisss & Bruns, L.L.P.

Rosin C. Gisss

(Counsel of Record) 3

Katuy D. Patrick y

JENNIFER HorRAN GREER

JouN A. BASINGER

1100 Louisiana St., Suite 5300

Houston, Texas 77002

Telephone No. (713) 650-8805

Facsimile No. (713) 750-0903

Counsel for the Saipem Respondents

ee Ne sae A Bk ieee ra

July 12, 2001

United States Court of Appeals,

Fifth Circuit

DEN NORSKE STATS OLJESELSKAP AS,

; Plaintiff-Appellant,

Vv.

HEEREMAC VOF; Heerma Marine Contractors; Heerema

Offshore Services U.S., Inc.; Heerema Offshore Construction

Group, Inc.; Jan Meek; Pieter Heerema; McDermott

International, Inc.; McDermott, Inc.; J. Ray McDermott, SA;

J. Ray McDermott, Inc.; J. Ray McDermott Gulf Contractors,

Inc.; McDermott Engineers & Constructors (USA), Inc.;

McDermott Engineering Houston LLC; McDermott - ETPM,

Inc.; Saipem SPA; Saipem International BV; Saipem UK

Limited; Saipem (Portugal) -- Comercio Maritimo, Sociedade

Unipessoal, SA,

Defendants-Appellees.

No. 99-20763

Feb. 5, 2001

Norwegian oil corporation brought antitrust conspiracy

claim against providers of heavy-lift barge services. The

United States District Court for the Southern District of

Texas, Melinda Harmon, J., dismissed for lack of subject

matter jurisdiction, and appeal was taken. The Court of

Appeals, E. Grady Jolly, Circuit Judge, held that antitrust

laws did not apply to plaintiffs claims that anticompetitive

conspiracy inflated its North Sea operating costs.

Affirmed.

Patrick E. Higginbothsm, Circuit Judge, dissented and filed

opinion.

Arthur R. Miller (argued), Cambridge, MA, Jacob Dweck,

Rebecca L. Hirsch, Sutherland, Asbill & Brennan,

Washington, DC, James R. McGibbon, Sutherland, Asbill &

Brennan, Atlanta, GA, Craig Barkell Glidden, Patricia Hall

Webb, Jeffrey Alan Kaplan, McFall, Glidden, Sherwood &

Breitbeil, Houston, TX, for Plaintiff-Appellant.

Jonathan D. Schiller, William A. Isaacson, Boies, Schiller &

Flexner, Washington, DC, for Heeremac Vof, Heerma Marine

Contractors, Heerema Offshore Services U.S., Inc., Heerema

Offshore Constr. Group, Inc., Meek and Heerema.

William J. Linklater, Michael A. Pollard, Baker &

McKenzie, Chicago, IL, Jacks C. Nickens, Clements, O’ Neill,

Pierce, Nickens & Wilson, Houston, TX, for Heerma Marine

Contractors, Heerema Offshore Services U.S. Inc., Heerema

Offshore Construction Group Inc., Jan Meek and Pieter

Heerema.

Charles Alan Gilman (argued), Patricia Farren, Cahill,

Gordon & Reindel, New York City, Innes A. Mackillop,

White, Mackillop & Boham, Houston, TX, for McDermott

Intern., Inc., McDermott, Inc., J. Ray McDermott SA, J. Ray

McDermott Inc., J. Ray McDermott Gulf Contractors Inc.,

McDermott Engineers & Constructors (USA) Inc.,

McDermott Engineering Houston LLC and McDermott-

ETPM Inc.

Robin C. Gibbs, Kathy Dawn Patrick (argued), John Albert

Basinger, Gibbs and Bruns, Houston, TX, for Saipem SPA,

Saipem Intern. BV, Saipem UK Ltd. and Saipem (Portugal)-

Comercio Maritimo, Sociedade Unipessoal, SA.

Appeal from the United States District Court for the

Southern District of Texas.

Before JOLLY, HIGGINBOTHAM and EMILIO M.

GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal requires us to interpret the scope of the United

States antitrust laws and their application to foreign conduct.

The plaintiff is a Norwegian oil corporation that conducts

business solely in the North Sea. It seeks redress under the

United States antitrust laws against the defendants for an

alleged anticompetitive conspiracy that Supposedly inflated

the plaintiff's operating costs in the North Sea. Supreme

Court precedent makes clear as a general proposition that

United States antitrust laws “do not regulate the competitive

conditions of other nations’ economies,” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582, 106

S.Ct. 1348, 89 L.Ed.2d 538 (1986). More specifically, today

we are bound by the plain language of the Foreign Trade

Antitrust Improvements Act (FTAIA). Thus, even though the

plaintiff alleges that the antitrust conspiracy raised prices in

the United States, it fails to assert jurisdiction under the

antitrust laws because the plaintiff’ s injury did not arise from

that domestic anticompetitive effect. Accordingly, we find

that the district court properly dismissed the plaintiff s

antitrust claims for lack of subject matter jurisdiction. It

follows that we affirm the court’s determination that the

plaintiff lacked antitrust standing to bring these claims in

United States federal court.

We begin with the basics. Sections 1 and 2 of the Sherman

Act prohibit restraints of trade and monopolization. Section 1

reads:

Every contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce

among the several States, or with foreign nations, is hereby

declared to be illegal.

15 U.S.C. § 1. Section 2 of the Sherman Act states:

Every person who shall monopolize, or attempt to

monopolize, or combine or conspire with any other person

or persons, tO monopolize any part of the trade or

commerce among the several States, or with foreign

nations, shall be deemed guilty of a felony...

15 U.S.C. § 2. The FTAIA, enacted by Congress in 1982

to clarify the application of United States antitrust laws to

foreign conduct, limits the application of such laws when non-

import foreign commerce is involved. The FTAIA states that

the antitrust laws will not apply to non-import commerce with

foreign nations unless the conduct at issue has a “direct,

substantial, and reasonably foreseeable effect” on domestic

commerce and “such effect gives rise to a claim under” the

antitrust laws. '

The plaintiff, Den Norske Stats Oljeselskap As (“Statoil”), is

a Norwegian oil company that owns and operates oil and gas

drilling platforms exclusively in the North Sea. The

defendants are providers of heavy-lift barge services in the

Gulf of Mexico, the North Sea, and the Far East. Only six or

seven heavy-lift barges exist in the world. These immense

"15 U.S.C. § 6a. In full, the FTAIA reads:

Sections 1 to 7 of this title 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 sections 1 to 7

of this title, other than this section. [Proviso] If sections 1 to 7 of this title

apply to such conduct only because of the operation of paragraph (1)(B),

then sections 1 to 7 of this title shall apply to such conduct only for injury

to export business in the United States.

vessels have cranes capable of hoisting and transporting

offshore oil platforms and decks weighing in excess of 4,000

tons. During the 1993-1997 time frame, which is at issue in

this suit, the three defendants controlled these barges.”

Between 1993 and 1997, Statoil purchased heavy lift barge

services from the HeereMac and Saipem defendants in the

North Sea.

Statoil alleges that the defendants conspired to fix bids ancl

allocate customers, territories, and projects between 1993 and

1997. Under the alleged arrangement, the defendants agreed

that HeereMac and McDermott would have exclusive access

to heavy-lift projects in the Gulf of Mexico, while Saipem

would receive a higher allocation of North Sea projects in

exchange for staying out of the Gulf. The defendants also

allegedly agreed to submit embellished bids on heavy-lift

projects. As a result of this conspiracy, Statoil contends that

it paid inflated prices for heavy-lift barge services in the

North Sea.’ Statoil further argues that the conspiracy

compelled it to charge higher prices for the crude oil it

exported to the United States.“ Finally, Statoil asserts that

purchasers of heavy-lift services in the Gulf of Mexico were

* The first group of defendants, HeereMac v.o.f. and its subsidiaries, a

foreign corporation with its principal place of business in The

Netherlands, controlled four or five of the barges. Saipem S.P.A., a

British company, controlled one heavy-lift barge. McDermott, Inc., an

American corporation, apparently controlled the last barge.

* Statoil does not allege that it purchased any heavy-lift services in the

United States or that the contracts it entered into included agreements to

apply United States law.

“ Statoil asserts that it has exported an average of 400,000 barrels of oil

a day into the United States over the past three years. Statoil does not,

however, allege any injury to itself derived from its export of oil to the

United States.

forced to pay inflated prices for those services because of the

conspiracy.

By way of background, it should be noted that in December

1997, the United States Department of Justice filed a criminal

complaint against defendants HeereMac and Jan Meek, one of

HeereMac’s managing directors. The complaint alleged that

the defendants conspired “to suppress and eliminate

competition by rigging bids for the sale of heavy-lift derrick

barge and related marine construction services in the United

States and elsewhere.” HeereMac and Meek submitted to

United States jurisdiction and pled guilty to the charges.

They agreed to pay fines of $49 million and $100,000,

respectively.

Following the guilty pleas, numerous companies across the

globe filed suit in United States federal court seeking redress

for injuries stemming from defendants’ conduct. The first of

these suits was filed in the Southern District of Texas in June

1998 by Phillips Petroleum Company and three of its foreign-

based subsidiaries.’

On January 22, 1999, the court dismissed Phillips’s claims

for injuries sustained by its foreign subsidiaries relating to

projects in foreign waters but allowed those claims asserting

injury from projects in United States waters to proceed.

While the court acknowledged the worldwide nature of the

alleged conspiracy in its order, it nonetheless held that subject

* Statoil does not allege that it owns, operates, or commissions any oil

exploration platforms within United States waters, or that it conducted

business with any of the defendants incorporated in the United States.

* The plea agreement separately addressed issues related to commerce

affected by defendants’ conduct in the Gulf of Mexico and commerce

affected by defendants’ activity in the North Sea and Far East.

” A group of about forty plaintiffs brought a second suit against

defendants in the Northern District of Texas.

matter jurisdiction did not exist for those claims pled by

foreign-based subsidiaries for injuries allegedly sustained on

foreign platforms.’ Specifically, the court determined that

those claims did not fall within the ambit of the United States

antitrust laws because the claims did not arise from a direct

and substantial effect on United States commerce.’

Statoil filed this suit in the same court in December 1998.

The court dismissed Statoil’s complaint against the

defendants on July 12, 1999." In its order, the court relied

heavily upon its decision in the Phillips case and found no

subject matter jurisdiction over the claims because “Statoil’s

damages arise from its projects in the Norwegian sector of the

North Sea”; thus, the FTAIA’s requirement that the effect on

domestic commerce “gives rise” to the antitrust claim was not

satisfied. See 15 U.S.C. § 6a(2). The court also held that the

defendants’ conspiracy “did not have a direct, substantial, and

reasonably foreseeable anticompetitive effect on United States

trade or commerce” under the FTAIA. See 15 U.S.C. § 6a(1).

Finally, the court determined that “Statoil lacks standing to

bring a claim under United States antitrust laws because its

alleged injuries are not of the type that the antitrust statute

was intended to redress.”"’ Statoil timely appealed the

judgment.

* The court determined it did have subject matter jurisdiction over the

alleged conspiracy and injury “relating to the Mahogany project in the

territorial waters of the United States in the Gulf of Mexico.”

” The court stated that “‘the claims of the foreign-based [subsidiaries]

regarding injuries sustained in relation to the foreign platforms” were not

justiciable in United States courts because “the primary injury to that party

must be caused in the United States and substantially affect United States

commerce.”

" The defendants filed motions to dismiss based on lack of subject

matter jurisdiction (Rule 12(b)(1)) and failure to state a claim under the

Sherman Act (Rule 12(b)(6)).

" ‘The court then declined to exercise supplemental jurisdiction over the

remaining common law claims pursuant to 28 U.S.C. § 1367(c)(3).

The issue presented to us is primarily one of statutory

interpretation. Specifically, this appeal requires us to interpret

the relevant provisions of the FTAIA to determine whether

the defendants’ conduct and Statoil’s injury in the North Sea

presents a justiciable claim in the federal courts of the United

States.

It is not helpful that the federal courts have generally

disagreed as to the extraterritorial reach of the antitrust laws

and have employed assorted tests to determine the scope of

the Sherman Act. The history of this body of case law is

confusing and unsettled.” However, as far as this appeal is

? The first case to consider the extraterritorial application of United

States antitrust law was American Banana Co. v. United Fruit Co., 213

U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826 (1909). In that case, Justice Holmes

announced that the Sherman Act could have no application to conduct that

occurred outside of the United States. Jd at 357, 29 S.Ct. 511. However,

as the United States became increasingly involved in foreign commerce in

the years following American Banana, the Supreme Court relaxed its

previous stance and held that the Sherman Act authorized jurisdiction over

foreign defendants so long as domestic commerce was affected and some

conduct occurred within the United States See United States v. Sisal Sales

Corp., 274 U.S. 268, 276, 47 S.Ct. 592, 71 L.Ed. 1042 (1927). In 1945,

the Second Circuit laid the groundwork for what became known as the

“effects test” to determine antitrust jurisdiction over foreign conduct. In

United States v. Aluminum Company of America (“Alcoa”), 148 F.2d 416

(2d Cir.1945), Judge Learned Hand determined that a United States court

would have jurisdiction over the conduct of foreign corporations where

that conduct was intended to, and actually did, affect United States

commerce. Id at 443-44. The Alcoa effects test has been gradually

adopted by most federal courts, albeit in various forms. The already

confused effects test was even more imprecise following the Ninth

Circuit's decision in Timberlane Lumber Co. v. Bank of America, 549 F.2d

597, 613 (9th Cir.1976). In that case, the court introduced a balancing test

that considered principles of comity in addition to domestic effects when

determining the scope of antitrust jurisdiction over foreign defendants.

The Fifth Circuit adopted a similar comity-informed approach. See

American Rice, Inc. v. Arkansas Rice Growers Co-op. Ass'n, 701 F.2d

408, 413 (Sth Cir.1983). Most recently, in 1993, the Supreme Court

confirmed that “the Sherman Act applies to foreign conduct that was

concemed, our work is simplified by Congress’ passage in

1982 of the FTAIA, which specifically exempts certain

foreign conduct from the antitrust laws. This circuit has never

interpreted the relevant portions of the FTAIA as they apply

to global conspiracies and resulting foreign injury. Today,

we take on this task, and make no claim that it is an easy one.

We review de novo a district court’s ruling on a 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction.“ See

Hebert v. United States, 53 F.3d 720, 722 (5th Cir.1995). In

ruling on a motion to dismiss for lack of subject matter

jurisdiction, a court may evaluate (1) the complaint alone, (2)

the complaint supplemented by undisputed facts evidenced in

the record, or (3) the complaint supplemented by undisputed

facts plus the court’s resolution of disputed facts. See

Barrera-Montenegro v. United States, 74 F.3d 657, 659 (Sth

Cir.1996). | Nevertheless, we must accept all factual

allegations in the plaintiffs complaint as true. See

Williamson v. Tucker, 645 F.2d 404, 412 (Sth Cir.1981).

meant to produce and did in fact produce some substantial effect in the

United States.” Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796,

113 S.Ct 2891, 125 L.Ed.2d 612 (1993).

™ In fact, no circuit appears to have interpreted the critical portion of

the FTAIA at issue in this case--the requirement that the domestic effect

on commerce “gives rise” to the antitrust claim. 15 U.S.C. § 6a(2).

“It is true that the defendants filed 12(b)(6) motions along with their

12(bX1) motions. However, the district court’s order establishes that the

court dismissed the claims for lack of subject matter jurisdiction rather

than failure to state a claim under the antitrust laws: [T]he court orders

that Defendants’ motions to dismiss for lack of subject matter jurisdiction

are granted and that this case is dismissed without prejudice. All

remaining pending motions are moot.

10a

We first outline Statoil’s argument that United States

antitrust jurisdiction encompasses the conduct and injury in its

complaint.

Statoil argues that the FTAIA does not preclude the district

court’s jurisdiction over its antitrust claims. Specifically,

Statoil argues that the FTAIA was enacted exclusively to

ensure that the conduct providing the basis of the plaintiffs

‘ claim have the requisite domestic effects, and was not

intended to preclude recovery to foreign plaintiffs based on

the situs of the injury.” Moreover, Statoil contends that

Section 2 of the FTAIA was inserted only to ensure that the

effect on United States commerce that provides jurisdiction is

itself a violation of the antitrust laws; that is, the statute

simply requires that there be some anticompetitive, harmful

effect in this country--not just a positive or neutral domestic

> Statoil refers to the legislative history of the FTAIA to support its

interpretation: The Committee did not believe that the bill reported by the

subcommittee was intended to confer jurisdiction on injured foreign

persons when that injury arose from conduct with no anticompetitive

effects in the domestic marketplace. Consistent with this conclusion, the

full committee added language to the Sherman and FTC Act amendments

to require that the “effect” providing the jurisdictional nexus must also be

the basis for the injury alleged under the antitrust laws. This does not,

however, mean that the impact of the illegal conduct must be experienced

by the injured party within the United States. H.R.Rep. No. 97-686, at 12.

‘© Statoil cites additional legislative history in support of this

interpretation of the FTAIA:... [T]he domestic “effect” that may serve as

the predicate for antitrust jurisdiction under the bill must be of the type

that the antitrust laws prohibit. For example, a plaintiff would not be able

to establish United States antitrust jurisdiction merely by proving a

beneficial effect within the United States, such as increased profitability of

some other company or increased domestic employment, when the

plaintiff's damage claim is based on ar extraterritorial effect on him of a

different kind. H.R.Rep. No. 97-686, at 12 (1982) (citation omitted).

lla

Addressing specifically the FTAIA’s requirement that the

domestic effect “gives rise” to its antitrust claim, Statoil

primarily argues 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.

(which included agreements regarding operations in the North

Sea), 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. Statoil alleges

that the market for heavy-lift services in the world is a single,

unified, global market; therefore, because the United States is

a part of this worldwide market, the effect of the conspiracy,

whether in the United States or in the North Sea, “gives rise”

to any claim that is based upon this conspiracy.”

We must disagree with Statoil’s arguments based on our

reading of the antitrust statutes. Although we are controlled

by the plain language of the statutes, we also find that the

legislative history of the FTAIA and applicable case law

Supports our determination that the district court lacked

jurisdiction over Statoil’s claims.

We begin with an analysis of the relevant statutes and the

plain language contained therein.

" In addition to its statutory interpretation arguments, Statoil cites a

number of cases in an attempt to support its proposition that subject matter

jurisdiction exists under the Sherman Act so long as the conspiratorial

conduct had an affect on United States commerce. See Caribbean Broad.

Sys., Lid. v. Cable and Wireless PLC, 148 F.3d 1080 (D.C.Cir.1998);

United States v. Nippon Paper Indus. Co., 109 F.3d 1 (st Cir.1997);

Hartford Fire, 509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed.2d 612; Pfizer,

Inc. v. Gov't of India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978).

However, none of these cases interpret the relevant provision of the

FTAIA (15 U.S.C. § 6a(2)) and, therefore, none of these cases inform our

inquiry into the proper interpretation of the “gives rise to” requirement.

12a

The Supreme Court has explained that “{a]bsent a clearly

expressed legislative intention to the contrary, [statutory]

language musi ordinarily be regarded as conclusive.”

Escondido Mut. Water Co. v. La Jolla Indians, 466 U.S. 765,

772, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984). We are thus

bound by the plain, ordinary meaning of the language used in

the antitrust statutes and, in particular, the FTAIA.

We begin by first noting that the Sherman Act itself applies

only to conduct in “trade or commerce with foreign nations.”

15 U.S.C. §§ 1,2 (emphasis added). The commerce that gives

rise to the action here--the contracting for heavy lift barge

services in the North Sea--was not United States commerce

with foreign nations, but commerce between or among foreign

nations--that is, between or among Statoil (a Norwegian

corporation), Saipem (England), and HeereMac (The

Netheriands). Therefore, we doubt that foreign commercial

transactions between foreign entities in foreign waters is

conduct cognizable by federal courts under the Sherman Act."

As we have noted, the FTAIA states that the antitrust laws

will not apply to non-import foreign conduct unless (1) such

conduct has a direct, substantial, and reasonably foreseeable

effect on United States domestic commerce, and (2) such

effect gives rise to the antitrust claim.” The conduct of these

* This interpretation is further strengthened by the limits placed on

Congressional power in the Constitution. Article I, § 8 of the Constitution

gives Congress the authority only to regulate interstate commerce and

“commerce with foreign nations” (emphasis added). Thus, even if

Congress indeed intended to regulate purely foreign commerce in the

Sherman Act, it was not empowered to do so under the Commerce Clause.

° The dissent, like Statoil, argues that Section 2 should be read to

require only that the domestic effect give rise to any antitrust claim, not

necessarily the plaintiff's claim. This interpretation contradicts the

explicit intent of Congress to require that the effect must give rise to the

particular injury claimed by the plaintiff in the suit: ... [T]he full

committee added language to the Sherman and FTC Act amendments to

13a

defendants is foreign conduct that falls within the general

parameters of the FTAIA and, thus, Statoil must show that the

two specific requirements of the statute are met to establish

subject matter jurisdiction over its claims.”

We accept the contention that Statoil has sufficiently alleged

that the defendants’ conduct--that is, the agreement among

heavy-lift service providers to divide territory, rig bids, and

fix prices--had a direct, substantial, and reasonably

foreseeable effect on the United States market. Statoil alleges

that the conspiracy not only forced purchasers of heavy-lift

services in the Gulf of Mexico to pay inflated prices, but also

that the agreement compelled Americans to pay supra-

require that the “effect” providing the jurisdictional nexus must also be the

basis for the injury alleged under the antitrust laws. H.R.Rep. No. 97-686,

at 12 (emphasis added). The dissent asserts that reading Section 2 as

requiring that the domestic effect give rise to the plaintiff's claim renders

the FTAIA’s proviso redundant. Although giving the statute a clear

understanding is difficult, we disagree with the dissent’s reading. We read

Section 1(B) to provide that the export commerce covered under the

exception must be conducted by a person who is engaged in that export

business in the United States. Section 2 provides that the defendant’s

antitrust effect on this export commerce described in Section 1(B) must

give rise to the plaintiff's cause of action. The proviso, in turn, states that

the recovery for injuries resulting from the conduct described in Section

1(B), which gives rise to the plaintiff's antitrust claim in Section 2, is

limited to injuries occurring in the United States. Therefore, we fail to see

the redundancy to which the dissent refers. See In re Copper Antitrust

Litigation v. Sumitomo Corp., 117 F.Supp.2d 875, 884 (W.D.Wis.2000)

(holding that “{t]he logical interpretation of the language of § 6a is that

Congress extends domestic jurisdiction to extraterritorial conduct only

when the plaintiffs have been injured by the effects on the domestic

market.”’).

* Specifically, Statoil’s claim falls under Section 6(a)(1)(A) and not

Section 6(a)(1)(B), because defendants’ conduct had no substantial effect

on export trade with foreign nations.

l4a

competitive prices for oil.” These allegations are sufficient to

satisfy the first requirement of the FTAIA.

However, Statoil fails to show that this effect on United

States commerce in any way “gives rise” to its antitrust

claim.” Based on the language of Section 2 of the FTAIA,

the effect on United States commerce--in this case, the higher

prices paid by United States companies for heavy-lift services

in the Gulf of Mexico--must give rise to the claim that Statoil

asserts against the defendants. That is, Statoil’s injury must

stem from the effect of higher prices for heavy-lift services in

the Gulf. We find no evidence that this requirement is met

here. The higher prices American companies allegedly paid

for services provided by the McDermott defendants in the

Gulf of Mexico does not give rise to Statoil’s claim that it

paid inflated prices for HeereMac and Saipem’s services in

the North Sea. This is not to say that any antitrust injury

suffered by customers or competitors of McDermott that arose

from the anticompetitive effect in the Gulf of Mexico cannot

be addressed.” This means only that, while we recognize that

*" Statoil’s complaint alleges that the defendants’ conspiracy adversely

affected at least $165 million in United States commerce during the 1993-

97 period.

* Statoil repeatedly frames the inquiry as whether a plaintiff can suffer

injury abroad, or whether the injury itself must be suffered in the United

States. This approach is an incorrect formulation of the threshold question

and reflects a misreading of the FTAIA. We recognize that many federal

courts, including the district court in these proceedings, might have chosen

to frame the analysis in this manner. However, the proper inquiry to make

here is, regardless of the situs of the plaintiff's injury, did that injury arise

from the anticompetitive effects on United States commerce? See, ¢.g.,

Caribbean, 148 F.3d 1080 (identifying that, while the situs of the injury

was overseas, the claim arose from the conspiracy's effects on the United

States advertising market).

* The dissent notes with disapproval that our interpretation of the

FTAIA means that “a foreign cartel that fixes prices worldwide will be

subject to suit under the Clayton Act only from plaintiffs injured in

American commerce.” However, our reading produces the precise result

intended by Congress--that “{floreign purchasers should enjoy the

15a

there may be a connection and an interrelatedness between the

high prices paid for services in the Gulf of Mexico and the

high prices paid in the North Sea, the FTAIA requires more

than a “close relationship” between the domestic injury and

the plaintiffs claim; it demands that the domestic effect

“gives rise” to the claim.”

Statoil asks that we interpret the requirement of Section 2

that the domestic “effect “ give rise to a claim under the

antitrust laws as merely requiring that the defendants’

domestic “conduct “ (here, for example, agreements relating

to the Gulf of Mexico) give rise to a claim. This

interpretation is not true to the plain language of the FTAIA.

Moreover, under such an expansive interpretation, any

entities, anywhere, that were injured by any conduct that also

had! sufficient effect on United States commerce could flock

to United States federal court for redress, even if those

plaintiffs had no commercial relationship with any United

Stattes market and their injuries were unrelated to the injuries

protection of our antitrust laws in the domestic marketplace, just as our

citizens do.” H.R.Rep. No. 97-686, at 10-11.

“* Statoil argues that, had the district court accepted its allegation of a

worlldwide conspiracy as true, the requirements of the FTAIA would be

satisfied and subject matter jurisdiction would exist. We cannot agree.

Regardless of the nature of the conspiracy, Statoil must allege an injury

that falls within the scope of the antitrust statutes. The assumed existence

of a single, unified, global conspiracy does not relieve Statoil of its burden

of alleging that its injury arose from the conspiracy’s proscribed effects on

United States commerce. This principle was stressed by the Supreme

Court in Matsushita: Respondents also argue that the check prices, the five

comypany rule, and the price fixing in Japan are all part of one large

conspiracy that includes monopolization of the American market through

predatory pricing. The argument is mistaken. However one decides to

describe the contours of the asserted conspiracy--whether there is one

conspiracy or several--respondents must show that the conspiracy caused

them an injury for which the antitrust laws provide relief. 475 U.S. at 584

n. 7, 106 S.Ct. 1348 (emphasis added).

l6a

suffered in the United States.” Such an expansive reading of

the extraterritorial application of the antitrust laws was never

intended nor contemplated by Congress. See EEOC v.

Arabian Am. Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113

L.Ed.2d 274 (1991) (noting that “[w]e assume that Congress

legislates against the backdrop of the presumption against

extraterritoriality. Therefore, unless there is the affirmative

intention of the Congress clearly expressed, we must presume

it is primarily concerned with domestic conditions.”) (citation

omitted).

In sum, we find that the plain language of the FTAIA

precludes subject matter jurisdiction over claims by foreign

plaintiffs against defendants where the situs of the injury is

overseas and that injury arises from effects in a non-domestic

market.” Although the plain language of the relevant statutes

is clear and controlling, we nonetheless turn now to address

briefly the legislative history of the FTAIA to illustrate how

that history reinforces our interpretation of the extraterritorial

reach of the antitrust laws.

* The dissent repeatedly emphasizes that the antitrust laws have always

contemplated foreign plaintiffs recovering for their injuries. We do not

disagree. We simply read the FTAIA to provide that, if individuals

conspire to restrain trade such that an American market is harmed, the

United States antitrust laws can provide redréss to any person injured by

the domestic effects of the conspiracy, even if the injured party is located

overseas. See Sumitomo, 117 F.Supp.2d 875, 885 (“On the other hand, the

antitrust laws do not apply to an action by a person injured overseas |

because of price-fixing in a foreign market even if the same defendants

engage in price-fixing affecting an American market.”).

North Sea. This injury, however, does not arise from the alleged effect on

United States commerce--that is, the higher prices paid by United States

consumers for heavy-lift services in the Gulf of Mexico. While Statoil also

asserts that the conspiracy had the effect of raising crude oil prices in the

United States, Statoil alleges no injuries to itself occurring in the market

for crude oil or arising from this domestic effect.

Re ee eee er res aren me ercnnnn nn oe

17a

Before analyzing the legislative history of the FTAIA, we

reemphasize that “[lJegislative history is relegated to a

secondary source behind the language of the statute in

determining congressional intent; even in its secondary role

legislative history must be used cautiously.” Boureslan vy.

Aramco, 857 F.2d 1014, 1018 (Sth Cir.1988) (citation

omitted). We are thus “not free to substitute legislative

history for the language of the Act.” Jd.

The FTAIA House Report states that the purpose of the law

is “to more clearly establish when antitrust liability attaches to

international business activities” and to ascertain “the precise

legal standard to be employed in determining whether

American antitrust law is to be applied to a particular

transaction.” H.R.Rep. No. 97-686, at 5, 8.” Moreover, the

relevant House Report shows that Congress intended to

exclude purely foreign transactions, like the contract for

services in the North Sea between Statoil and the foreign

defendants, from the reach of United States antitrust laws:

A transaction between two foreign firms, even if American-

owned, should not, merely by virtue of the American

ownership, come within the reach of our antitrust laws... It is

thus clear that wholly foreign transactions as well as export

transactions are covered by the [FTAIA], but that import

transactions are not.

Id. at 10.

Thus, the legislative history of the FTAIA, while not

controlling, reinforces our conclusion that a foreign plaintiff

injured in a foreign marketplace must show that a substantial

”' The dissent seems to imply that the sole purpose of the FTAIA is to

“exempt exporting from antitrust scrutiny.” Although this is clearly a

primary goal of the legislation, the dissent ignores the second purpose

behind the FTAIA--to resolve “possible ambiguity” in the extraterritorial

reach of antitrust jurisdiction. Jd. at 4-5.

18a

domestic effect on United States commerce “gives rise” to its

antitrust claim.”

We now turn to address briefly applicable case law and its

effect on our interpretation of the FTAIA.

Because few courts have directly addressed the specific

meaning of the FTAIA’s Section 2 requirement that a

domestic effect “gives rise” to the plaintiff's antitrust claim,

very little case law exists to aid our inquiry. Our interpretation

of the FTAIA’s requirements, however, is entirely consistent

with prior case law defining the jurisdictional reach of the

antitrust laws. Furthermore, those decisions illustrate that our

interpretation of Section 2 is not a novel reading of the statute.

To begin, we note that the only three federal courts that have

addressed the narrow question before us interpreted Section 2

exactly as we have. See Kruman v. Christie’s Int’l PLC, et

al., 129 F.Supp.2d 620 (S.D.N.Y.2001) (holding that the

FTAIA permits jurisdiction “only where the conduct

complained of had ‘direct, substantial and reasonably

foreseeable’ effects in the United States and the effects giving

* The dissent argues that our decision in this case is contrary to the

statement in the legislative history that “[a] course of conduct in the

United States ... would affect all purchasers of the target domestic

products or services, whether the purchaser is foreign or domestic.” Again,

we do not assert that foreign purchasers of domestic products can never

sue in United States federal court. We only hold that the FTAIA requires

that a foreign plaintiff show that its injuries arise from a United States

market. This is not a novel reading of the FTAIA: [T]he legislative

history [of the FTAIA] reflects that Congress was proceeding from the

premise that, wherever title is taken or economic injury is suffered, at least

some aspect of the sales transaction took place in the United States. Any

doubt on that score is resolved by ... the sentence which states that

“foreign purchasers should enjoy the protection of our antitrust laws in the

domestic marketplace, just as our citizens do.” In re Microsoft Corp.

Antitrust Litigation, 2001 U.S. Dist. LEXIS 305, at *37 (M.D.Md. Jan. 12,

2001).

19a

rise to jurisdiction are the basis for the alleged injury.”); Jn re

Microsoft Corp., 2001 U.S. Dist. LEXIS 305, at *37 (holding

that, under the FTAIA, “foreign consumers who have not

participated in any way in the U.S. market have no right to

institute a Sherman Act claim.”); Sumitomo, 117 F.Supp.2d

875, 876 (holding that “it is plain from the language of this

act and bolstered by the legislative history that a private

plaintiff cannot sue under the antitrust laws of the United

States for injuries incurred as a result of international

transactions that have an anticompetitive effect on a United

States market if the domestic anticompetitive effect is not the

Same one that gives rise to the plaintiff's injury.”).

We further note that we have found no case in which

jurisdiction was found in a case like this--where a foreign

plaintiff is injured in a foreign market with no injuries arising

from the anticompetitive effect on a United States market.” In

those cases where the domestic effect on commerce did not

give rise to the plaintiff's claim, courts have found subject

matter jurisdiction lacking. See, e.g., S. Megga Telecomm.

Ltd. v. Lucent Technologies, Inc., 1997 WL 86413 (D.Del.

Feb.14, 1997) (anticompetitive domestic effect of higher

prices for United States consumers did not “give rise” to

plaintiff's claim for lost sales to defendant); The “In”

Porters, S.A. v. Hanes Printables, Inc., 663 F.Supp. 494

(M.D.N.C.1987) (anticompetitive domestic effect (lost

exports of United States exporters) did not “give rise” to

plaintiff's claim for lost sales in France due to marketing sales

agreement with defendant); de Atucha v. Commodity Exch.,

Inc., 608 F.Supp. 510 (S.D.N.Y.1985) (conspiracy’s effect on

Silver prices on United States exchange did not “give rise” to

plaintiff's injury on London exchange).

* See Sumitomo, 117 F.Supp.2d 875, 883 (“So far as can be

determined, the issue [of interpreting the language of Section 2] never

came up. In the reported cases, the courts had no occasion to address the

same effects requirement because in each case, the plaintiffs’ injuries

arose out of the same effects experienced by the markets.”’).

20a

On the other hand, in every case where jurisdiction has been

found, the substantial effect on United States commerce has

“give[n] rise” to the plaintiff's injury and claim under the

antitrust laws. See, e.g., Carpet Group Int’l v. Oriental Rug

‘Importers Ass’n, 227 F.3d 62 (3rd Cir.2000) (anticompetitive

effect on domestic rug market “gives rise” to plaintiff's

injury); Caribbean, 148 F.3d 1080 (monopolization of United

States market for advertising in the Caribbean “gives rise” to

plaintiff's claim of being blocked from that market); Nippon

Paper, 109 F.3d 1 (collusion amongst fax paper producers

resulted in higher prices for fax paper in the United States,

which “gives rise” to the United States’ claim); Hartford Fire,

509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed.2d 612 (conspiracy’s

effect on the United States insurance market “gives rise” to

the plaintiffs’ injury, the inability to obtain certain types of

coverage in that market). |

Finally, we note that none of the cases cited by Statoil in

support of its interpretation of the FTAIA cast doubt upon our

plain language interpretation of Section 2. Statoil cites Pfizer

v. India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978),

for the proposition that antitrust jurisdiction exists over

foreign conduct like the commerce between Statoil and

defendants in this case. Pfizer, however, was decided four

years before enactment of the FTAIA, and the court’s holding

was limited to the question of whether a foreign government

qualified as a “person” under the Sherman Act. Jd. at 320, 98

S.Ct. 584.” Statoil further maintains that Caribbean

Broadcasting, 148 F.3d 1080, requires that jurisdiction be

found over its claims. Initially, that case looks similar to

» The dissent relies heavily upon Pfizer in asserting that Statoil’s claim

should be cognizable in United States federal court. The Pfizer court,

however, did not analyze the requisite elements that must be present

before a foreign entity can sue under the United States antitrust laws.

Indeed, Pfizer ‘s narrow holding was “only that a foreign nation otherwise

entitled to sue in our courts is entitled to sue for treble damages under the

antitrust laws to the same extent as any other plaintiff.” Jd. (emphasis

added).

2la

today’s case in that both the plaintiff and the defendant were

foreign, and the defendant’s international conspiracy had

anticompetitive effects both inside and outside the United

States. The critical difference, however, is that the effect on

United States commerce in that case (that is, limiting to one

radio station potential advertisers in the United States who

wished to advertise in the Eastern Caribbean radio market)

gave rise to the injury suffered by the plaintiff, a competing

radio station--that is, exclusion of the plaintiff from the

market for United States advertising dollars. Jd. at 1082,

1086. As previously explained, that is simply not true with

Statoil’s claims.” Similarly, Statoil’s reliance on Nippon

Paper, 109 F.3d 1, is misplaced because the global conspiracy

in that case had the domestic effect of raising fax paper prices

in the United States, which gave rise to the government’s

claim under the antitrust laws. Jd. at 2.

Simply put, Statoil has cited no case law to support an

interpretation of Section 2 of the FTAIA different from the

one we now adopt. This absence of such precedent, when

considered with the plain language of the statute and evidence

of congressional intent in enacting the FTAIA, reinforces our

conclusion in this case.

In sum, we find that the district court did not err when it

dismissed Statoil’s antitrust claims for lack of subject matter

* The dissent asserts that we “struggle” to reconcile Caribbean

Broadcasting with our holding in the case before us. However, the court

in Caribbean Broadcasting, for whatever reason, completely ignored

Section 2 of the FTAIA in its analysis. Given that a decision in the case

before us requires an interpretation of that provision, we find Caribbean

Broadcasting unhelpful to any resolution of Statoil’s claim. Indeed, we

fail to understand how Caribbean Broadcasting provides any meaningful

support for the dissent’s interpretation of Section 2, given that the

plaintiff's claim in that case arose from the anticompetitive effects on the

domestic market for radio advertising in the Caribbean. See 148 F.3d at

1086.

22a

jurisdiction. Any reading of the FTAIA authorizing

jurisdiction over Statoil’s claims would open United States

courts to global claims on a scale never intended by Congress.

Without subject matter jurisdiction, United States federal

courts are without power to entertain Statoil’s claims.” The

judgment of the district court is therefore

AFFIRMED.

PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:

I agree that this is not an easy case, but I have no hesitation

in concluding that the Foreign Trade and Antitrust

Improvements Act does not here divest the federal courts of

jurisdiction and that the plaintiff has standing. With deference

to my colleagues, I am persuaded by the plain text of section

6a, as well as its statutory context, legislative history, and

purpose.

The claim is that defendants allocated the market for

hundreds of millions of dollars of commerce--an allocation

that placed United States markets at the mercy of monopoly

charges in an industry vital to national security. The charged

conspiracy was no foreign cabal whose secondary effects only

lapped at United States shores. The impact of the conspiracy

was direct and substantial. Indeed, the participation of

American business in the market allocation scheme was

critical to i's success. The plaintiff here is a foreign company,

true enoug’i, but it was injured by the same acts of defendants

* As Statoil has no claim under the United States antitrust laws, we

affirm the district court’s finding that Statoil lacked standing to bring its

claims. Based on Associated Gen'l Contractors Inc. v. California State

Council of Carpenters, 459 U.S. 519, 535-45, 103 S.Ct. 897, 74 L.Ed.2d

723 (1983), the determination of Statoil’s standing to bring its claims is

dependent upon our finding of subject matter jurisdiction. Thus, in

concluding that the FTAIA bars Statoil’s claims against defendants under

the Sherman Act, we have perforce found that Statoil’s injury is not of the

type that the antitrust statute was intended to forestall.

23a

that injured American plaintiffs whose right to seek recovery

of their losses the district court recognized in this litigation.

With the Foreign Trade and Antitrust Improvements Act,

Congress set out to insulate United States business from its

antitrust laws for certain business conducted outside the

country. Its central purpose was to assist American business

in competing abroad. This pass from antitrust restrictions did

not extend to all conduct outside the United States. It stopped

Short of insulating conduct having direct and substantial

effects upon American commerce and causing antitrust injury

to that commerce sufficient to Support a claim for treble

damages.

I am not persuaded that when illegal conduct produces these

domestic effects, that Congress intended to close the door to a

foreign company injured by the same illegal conduct. That

was not the law before this effort to assist American business

abroad, and Congress did not intend to change it or do so

unwittingly. I would reverse and remand for further

proceedings.

Interpretation of a statute must begin with the text of the

Statute itself. Section 6a states in its entirety:

Sections 1 to 7 of this title [the Sherman 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

24a

(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 sections | to 7 of this title, other than this section.

[Proviso:] If sections 1 to 7 of this title apply to such conduct

only because of the operation of paragraph (1)(B), then

sections 1 to 7 of this title shall apply to such conduct only for

injury to export business in the United States. '

Section 6a(1) requires an effect on (A) domestic or import

commerce of the United States or (B) the export commerce of

a person in the United States.’ Section 6a(2) requires that this

effect “give[ ] rise to a claim under the provisions of sections

1 to 7 of this title, the Sherman Act, other than this section.”

The majority reads section 6a(2) to require that the effect

“give[ ] rise to” the plaintiff's claim. It does not say that. It

does say that the effect must “give[ ] rise to a claim.” In

other words, the effect on United States commerce must be

sufficient to support a claim, an injury of some person in a

way cognizable under the Sherman Act."

The literal text of the statute supports this conclusion. It

reads, “gives rise to a claim.” The word “a” has a simple and

universally understood meaning. It is the indefinite article.

There are many terms of art about which one can debate

whether Congress uses the term as courts do, but this word is

not one of them. If the drafters of the FTAIA had wished to

"15 U.S.C.A. § 6a (1997).

? For brevity, I herein refer to the effects required by section 6a(1) as

effects on “United States commerce.”

* 15 U.S.C. § 6a(2) (emphasis added).

“ The effect must cause “antitrust injury.” The “effect” described by

section 6a(1) can be beneficial, neutral, or injurious. Section 6a(2) requires

that this effect be injurious and, further, that the injury be caused by

reduced, not increased, competition.

25a

Say “the claim” instead of “a claim,” they certainly would

have.’

The reference to “a” claim makes clear that the “effect”

described by section 6a(1) must violate the Sherman Act--that

is, harm competition. Section 6a(1) requires that the

conspiracy have an effect on United States commerce;

section 6a(2) requires that this effect either monopolize

commerce or restrain trade in the United States, thereby

giving rise to a Sherman Acct claim. Section 6a(2) removes

jurisdiction over conspiracies whose effects on United States

commerce are beneficial or benign, even if they restrain

competition in other parts of the world. That an injury that

“gives rise to” an antitrust claim must be an injury caused by

harm to competition is no light notion. It is a well established

injury,” it is frequently encountered in enforcement action

* Courts will not presume that statutory language is redundant or

surplusage. The majority’s interpretation, however, makes the proviso at

the end of section 6a redundant. Section 6a(1)(B) states that the Sherman

Act applies to conduct with effects on “export trade or export commerce

with foreign nations, of a person engaged in such trade or commerce in the

United States.” The proviso limits the applicability of the Sherman Act

plaintiff.

* Courts have long held that private plaintiffs “must prove the existence

of ‘antitrust injury’ “ to recover under section 4 of the Clayton Act.

Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 110 S.Ct.

v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 LEd2d 538

conspiracy caused them an injury for which the antitrust laws provide

relief.” Id. at 584 n. 7, 106 S.Ct. 1348. The Court explained that a

“cognizable injury” is an “antitrust injury.” Id. at 586, 106 S.Ct. 1348.

Ep i EE ——

26a

under the Clayton Act, by which Congress enlisted private

enforcement in supplementation of governmental enforcement

of the Sherman Act.’

Thus, the literal text does not require that the effect on

United States commerce give rise to the plaintiff's claim. At

worst, the text is sufficiently ambiguous to allow for both the

construction the majority offers and the construction I believe

is correct. At the least, the majority cannot find support in a

plain text argument.

Accepting that the text of the FTAIA compels neither the

majority’s reading or mine, we must enlist other aids in

determining the meaning of the statute. In doing so, 1

conclude that the textual conclusion that “a” means “a” is

supported by the statutory context of the FTAIA, which

describes the function of the FTAIA and its animating

purpose, and by the purposes of the antitrust laws in general;

by the legislative history of the FTAIA; and by the sparse

case law that interprets the FTAIA.

The FTAIA was enacted as Title [TV of Public Law 97-290,

entitled “Export Trading Company Act of 1982.” Title I

contains the congressional findings. Every single

” ‘The Clayton Act requires that the plaintiff suffer antitrust injury. The

FTAIA, by contrast, requires that the United States suffer antitrust injury.

Compare Clayton Act, 15 U.S.C.A. § 15(a) (providing cause of action to

anyone “injured in Ais business or property by reason of anything

forbidden in the antitrust laws”) (emphasis added), with FTAIA, 15

U.S.C.A. § 6a(2) (“gives rise to a claim under the [Sherman Act]”)

(emphasis added). When a private plaintiff wishes to sue under the

Clayton Act, the Clayton Act and FTAIA erect complementary

requirements: the plaintiff must suffer antitrust injury, and persons in

United States commerce must suffer antitrust injury. The majority

opinion, on the other hand, appears to conflate these two concepts.

* Export Trading Company Act of 1982, Pub.L. No. 97-290, 96 Stat.

1233 (codified in scattered sections of 15 U.S.C.).

27a

congressional finding relates to the importance of export

business and the need to encourage export activity by

American business.’ The statute then states: “It is the purpose

of this Act to increase United States exports of products and

services by encouraging more efficient provision of export

trade services to United States producers and suppliers, in

particular by ... modifying the application of the antitrust laws

to certain export trade.” It could not be clearer that the

FTAIA serves to exempt exporting from antitrust Scrutiny, not

to limit the liability of participants in transnational

conspiracies that affect United States commerce. "!

The text of the FTAIA implements this purpose perfectly.

The Sherman Act, prior to the enactment of the FTAIA,

applied to conduct that affected domestic, import, and export

commerce. Recall that section 6a(1) limiting the reach of the

: Export Trading Company Act of 1982 §-102, 96 Stat. at 1233-34.

"3 § 102(b), 96 Stat. at 1234. The Third Circuit has recently cited this

language in concluding that “Congress enacted the FTAIA for the purpose

of facilitating the export of domestic goods by exempting export

transactions that did not injure the United States economy from the

Sherman Act and thereby relieving exporters from a competitive

disadvantage in foreign trade.” Carpet Group Int’! v. Oriental Rug

Importers Ass’n, Inc., 227 F.3d 62, 71 (3d Cir.2000).

"' Because the language of the statute is clear, we need not resort to its

legislative history to discern its purpose. In any case, the legislative

history only reiterates this single, motivating Purpose. See H.R.Rep. No.

97-686, 97th Cong., 2d Sess., reprinted in 1982 U.S.C.C.A.N. 2487, 2487

(describing the legislation as “the bill . . . to exclude from the application

of [the antitrust laws] certain conduct involving exports” and “one of

several bills ... that seek to promote American exports”). The excerpt of

legislative history upon which the majority relies, that the purpose of the

law is “to more clearly establish when antitrust liability attaches to

international business activities,” is certainly a true Statement, but it

expresses the purpose of the jaw at a level of generality that offers us no

guidance on the narrow question we face. What the majority has

the purpose of this law: the purpose of the FTAIA is to promote exports

by exempting American exporting activity from the antitrust laws.

28a

Sherman Act applies to conduct that affects (1) domestic

commerce; (2) import commerce; or (3) export commerce,

but only to the extent that American exporters are affected.

One class of conduct is excluded: conduct that affects only

foreign purchasers of American exports. This is the function

of the FTAIA: to protect American exporters who

monopolize or conspire to restrain export trade that does not

harm United States commerce.

The purpose of the FTAIA offers no support for the

majority’s reading of the statute. It is undisputed that if

proved, the conspiracy in this case would have direct,-

substantial, and reasonably foreseeable effects upon United

States commerce. No American exporters are implicated by

this suit. American exporting business can only be harmed by

the alleged conspiracy in this case.

Indeed, interpreting the FTAIA as the majority wishes will

impair the competitiveness of American exporters. Under the

majority’s view, an American carte] that fixes prices

worldwide will be subject to Clayton Act suits by plaintiffs —

from around the world,” but a foreign cartel that fixes prices

worldwide will be subject to suit under the Clayton Act only

from plaintiffs injured in American commerce. This

interpretation of the FTAIA transforms a safe harbor for

American exporters into a boon for foreign cartels that

restrain commerce in the United States.

With respect to my colleagues, I fear that their reading of the

FTAIA will hinder its purposes and reduce the effectiveness

of the antitrust laws. Nothing in the text of the FTAIA, or the

Export Trading Company Act of 1982 as a whole, or its

legislative history, casts doubt on the importance of deterring

This cannot seriously be disputed. The FTAIA does not alter the

holding of Pfizer, Inc. v. Government of India, 434 U.S. 308, 98 S.Ct. 584,

54 L.Ed.2d 563 (1978), which allowed foreign governments to sue an

American cartel that charged supra-competitive prices for pharmaceuticals

worldwide. The legislative history approves of Pfizer. See H.R.Rep. No.

97-686, reprinted in 1982 U.S.C.C.A.N. 2487, 2495.

Ma DER i - -_ ~

PN ati pta MER TESA Re cen eat cet ne eetatobin eines

29a

restraints of trade that affect United States commerce. The

Supreme Court has repeatedly recognized that the accent of

the Sherman and the Clayton Acts is deterrence, requiring

violators to pay full, treble damages, even if some plaintiffs

gain a windfall or are foreigners. For example, in JIlinois

Brick Co. v. Illinois,” the Supreme Court noted the

importance of “vigorous private enforcement of the antitrust

laws” and “deterring violators” and recognized that “from the

deterrence standpoint, it is irrelevant to whom damages are

paid, so long as some one redresses the violation.”

The Supreme Court in Pfizer, Inc. v. Government of India’

addressed a situation somewhat analogous to this case. The

government of India sued several American pharmaceutical

manufacturers under the Clayton Act for damages caused by a

price-fixing conspiracy. Like Statoil, the government of India

alleged a worldwide conspiracy that raised prices in the

United States and abroad. Unlike in this case, in Pfizer the

Sales were made in the United States."* In holding that foreign

governments could recover under the Clayton Act, Justice

Stewart observed: “Treble-damage suits by foreigners who

* 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977).

“ Id. at 745-46, 97 S.Ct. 2061, quoting id. at 760, $7 S.Ct. 2061

(Brennan, J., dissenting).

* 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978).

legislative history of the FTAIA cites Pfizer with approval. Pfizer

maintains its force after the FTAIA because the conspiracy in Pfizer also

affected Americans in domestic commerce. This is why section 6a(2)

States “gives rise to a claim” and not “gives rise to the plaintiff's claim.” -

30a

have been victimized by antitrust violations clearly may

contribute to the protection of American consumers.... [A]n

exclusion of all foreign plaintiffs would lessen the deterrent

effect of treble damages.”

The logic underlying this conclusion is straightforward.

Conspirators facing antitrust liability only to plaintiffs injured

by their conspiracy’s effects on the United States may not be

deterred from restraining trade in the United States. A

worldwide price-fixing scheme could sustain monopoly prices

in the United States even in the face of such liability if it

could cross-subsidize its American operations with profits

from abroad. Unless persons injured by the conspiracy’s

effects on foreign commerce could also bring antitrust suits

against the conspiracy, the conspiracy could remain profitable

and undeterred.

It is no rejoinder that conspirators would simply choose to

exclude the United States from any price-fixing conspiracy as

long as American plaintiffs could sue. In at least some cases,

including the United States in a price-fixing conspiracy is

necessary to generate monopoly profits. Otherwise, arbitrage

would rapidly equalize unequal prices around the globe as

speculators resold goods purchased in the United States to

buyers in high-price regions. Thus, a cartel may find it

impossible to fix prices anywhere without a worldwide

conspiracy. The Sherman Act can only deter these violations

if it protects all parties injured by such a conspiracy.

Justice Stewart succinctly made this argument in Pfizer:

The conspiracy . . . operated domestically as well as

internationally. If foreign plaintiffs were not permitted to

"” Id. at 314-15, 98 S.Ct. 584.

* For a real-life example of an arbitrage attempt, see Eurim-Pharm

GmbH v. Pfizer, Inc., 593 F.Supp. 1102, 1104 (S.D.N.Y.1984) (describing

how antitrust plaintiff attempted to arbitrage pharmaceuticals by

repackaging drugs purchased in England for sale in Germany).

3la

seek a remedy for their antitrust injuries, persons doing

business both in this country and abroad might be tempted to

enter into anticompetitive conspiracies affecting American

consumers in the expectation that the illegal profits they could

safely extort abroad would offset any liability to plaintiffs at

home. If, on the other hand, potential antitrust violators must

take into account the full costs of their conduct, American

consumers are benefited by the maximum deterrent effect of

treble damages upon all potential violators.”

The Jegislative history also Supports this reading of the

Statute and undermines the majority’s interpretation of section

6a(2). The Committee Report on the House bill that became

the FTAIA states that the FTAIA

does not exclude all persons injured abroad from

recovering under-the antitrust laws of the United States.

A course of conduct in the United States--e.g., price

fixing not limited to the €xport market--would affect all

purchasers of the target domestic products or services,

whether the purchaser is foreign or domestic. The

conduct has the requisite effects in the United States,

even if some purchasers take title abroad or suffer

economic injury abroad.”

This statement explicitly refers to plaintiffs who “suffer

economic injury abroad.” The majority’s interpretation of the

Statute is contrary to this statement in the legislative history.

The “effect” on United States commerce is the injury suffered

by purchasers in the United States; this effect does not give

rise to the injury suffered by the foreign plaintiffs. Yet the

legislative history contemplates such plaintiffs recovering

” 434 U.S. at 315, 98 S.Ct. 584 (footnote omitted).

* HRRep. No. 97-686, 97th Cong., 2d Sess., reprinted in 1982

US.C.C.A.N. 2487, 2495 (emphasis in original), citing Pfizer, Inc. v.

Government of India, 434 U.S. 308, 98 S.Ct. 584, 54 L.Ed. 2d 563 (1978).

32a

under the Sherman Act. The scenario described in this

statement is virtually identical to the instant case: a

conspiracy sells to buyers in the United States and abroad,

and each of the buyers is injured. All are injured by the same

conspiracy, and it is a conspiracy that has been injurious to

competition in the United States.

The majority, however, chooses to rely on the following

statement in the same House Report:

A transaction between two foreign firms, even if

American-owned, should not, merely by virtue of the

American ownership, come within the reach of our

antitrust laws.... It is thus clear that wholly foreign

transactions as well as export transactions are covered by

the [FTAIA], but that import transactions are not.”

That American ownership alone should not create

jurisdiction over a wholly foreign conspiracy is not

controverted, controversial, or relevant to this case. What is

relevant is that the language omitted from the quotation above

states that if a conspiracy between two foreign firms,

regardless of American ownership, does have an effect on

domestic commerce, there is jurisdiction.”

I recognize that there is little precedent to guide our analysis

of this question. Of the case law that does exist,-there are no

appellate court cases supporting the majority’s holding. To

the contrary, the majority must reconcile or distinguish the

only other circuit court decisions interpreting the FTAIA,

because all of them find jurisdiction present.

*" Td. at 2494-95.

2 Id. (“Such foreign transactions should, for the purposes of this

legislation, be treated in the same manner as export transactions-- that is,

there should be no American antitrust jurisdiction absent a direct,

substantial and reasonably foreseeable effect on domestic commerce or a

domestic competitor.”).

33a

The majority opinion struggles, and I believe fails, to

reconcile Caribbean Broadcasting System, Lid. v. Cable &

Wireless PLC,” which involved a foreign plaintiff alleging

monopolization in radio advertising in the Caribbean by a

competing radio station. The defendant was also a foreign

entity. Consistent with the reasoning of this dissent, the D.C.

Circuit held that the FTAIA did not preclude jurisdiction,

because the plaintiff showed that the foreign defendants’

conduct had the effect of harming United States purchasers of

advertising. It stated: “the alleged injury is to advertisers in

the United States.” Thus, based on the injury to advertisers

in the United States, the court found jurisdiction over a suit by

a radio broadcaster in the Caribbean. The D.C. Circuit did not

require that the injury to American advertisers “give[ ] rise to”

the plaintiff's cause of action; its determination that the

injury gave rise to “a” claim was sufficient.

Finally, the majority’s attempt to enlist the aid of the

Commerce Clause and the canon of construction that creates a

presumption against extraterritoriality is mistaken.

The majority suggests that the interpretation of the FTALA

that I espouse is beyond the power of Congress to regulate

commerce.” The Supreme Court itself has recognized—in the

context of the Sherman Act--that Congress has intended to

regulate, and constitutionally has regulated, foreign conduct

that affects United States commerce.“ And it has been

* 148 F.3d 1080 (D.C.Cir.1998).

* Id. at 1086.

* See Majority Op. at 426 n.18.

** Hartford Fire Ins. Co. v. California, 509 U.S. 764, 796, 113 S.Ct

2891, 125 L.Ed.2d 612 (1993) (“{I]t is well established by now that the

Sherman Act applies to foreign conduct that was meant to produce and did

in fact produce some substantial effect in the United States.”).

34a

decades since any court has taken so cramped a view of the

Commerce Clause in any context.”

The majority is correct to note that the courts’ historical

willingness to apply the Sherman Act extraterritorially is not

dispositive of this appeal, since the FTAIA, and not the

courts’ earlier interpretations of the Sherman Act, is

controlling here.” But precisely because the FTAIA applies

here, the miajority’s reliance on the canon against

extraterritorial application of statutes is misplaced. This

canon operates when ee has not clearly spoken on the

issue of extraterritoriality. e FTAIA, however, explicitly

addresses nothing other than pa abt We must be

careful not to use such a canon when Congress is speaking

directly to the relevant issue. Make no mistake: such canons

reflect substantive presumptions about the content of laws. If

courts apply substantive canons of construction against

statutes that do speak to an issue, then it is the courts, not

Congress, who are making the policy choices that form the

content of legislation.”

” See, e.g., United States v. Lopez, 514 U.S. 549, 552-59, 115 S.Ct

1624, 131 L.Ed.2d 626 (1995) (recounting the development of Commerce

Clause jurisprudence in the domestic context).

** See Majority Op. at 423-24.

* See E.E.0.C. v. Arabian American Oil Co., 499 U.S. 244, 248, a

S.Ct. 1227, 113 L-Ed.2d 274 (1991) (“This ‘canon of construction ... is

valid approach whereby unexpressed congressional intent may ie

ascertained .” ... In applying this rule of construction, we look to see

whether ‘language in the [relevant Act] gives any indication of a

congressional purpose to extend its coverage [extraterritorially}.’”).

* In any case, when Congress enacted the FTAIA, is was legislating

against a backdrop of extraterritorial application of the Sherman Act; thus

we cannot presume that Congress treated non-extraterritoriality as the

default condition. See Hartford Fire Ins., 509 U.S. at 796, 113 S.Ct. 2891

(“{I}t is well established by now that the Sherman Act applies to foreign

conduct that was meant to produce and did in fact produce some

substantial effect in the United States .”); id. at 814, 113 S.Ct. 2891

(Scalia, J., dissenting) (“[I]}t is now well established that the Sherman Act

35a

Because I disagree with the majority’s interpretation of the

FTAIA, I would reach the Standing inquiry. It is

straightforward; this court has restated the test for standing

under the Clayton Act as “1) injury-in-fact, an injury to the

plaintiff proximately caused by the defendants’ conduct; 2)

antitrust injury; and 3) proper plaintiff status, which assures

that other parties are not better situated to bring suit.’”™

Statoil has standing. First, it has suffered injury-in-fact. It

paid inflated prices directly to the defendants.

Second, Statoil has suffered antitrust injury. Antitrust injury

requires that the injury to the plaintiff not merely show

“injury causally linked to an illegal presence in the market”

but injury “attributable to an anti-competitive aspect of the

practice under scrutiny.”” This element of standing excludes

plaintiffs, primarily competitors, harmed by increased, rather

than decreased, competition.” Statoil’s injury was the direct

applies extraterritorially.”); Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 582 n. 6, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);

Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690,

704, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962).

* Doctor’s Hospital of Jefferson, Inc. v. Southeast Medical Alliance,

Inc., 123 F.3d 301, 305 (Sth Cir.1997). For further discussion, see

McCormack v. NCAA, 845 F.2d 1338, 1341 (Sth Cir.1988); see also

Associated General Contractors of California v. California State Council

of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983);

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489, 97 S.Ct.

690, 50 L.Ed.2d 701 (1977). -

” Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334, 110

S.Ct. 1884, 109 L.Ed.2d 333 (1990), quoting Brunswick, 429 U.S. at 489,

97 S.Ct. 690. :

” See Atlantic Richfield, 495 U.S. at 334, 337-38, 110 S.Ct. 1884:

Brunswick, 429 U.S. at 488-89, 97 S.Ct. 690.

36a

result of the alleged price-fixing conspiracy and consequent

restraint of trade.

Third and finally, Statoil is a proper plaintiff. In determining

whether a party is a proper plaintiff, it should examine “such

factors as (1) whether the plaintiff's injuries or their causal

link to the defendant are speculative, (2) whether other parties

have been more directly harmed, and (3) whether allowing

this plainuff to sue would risk multiple lawsuits, duplicative

recoveries, or complex damage apportionment.”

First, neither Statoil’s injuries, nor their connection to the

defendants, is speculative. The injuries arise from the

defendants charging Statoil monopoly prices. Second, other

parties have not been harmed more directly than Statoil.

Statoil was a purchaser in the market for heavy-lift barge

services, the market in which the defendants fixed prices.

Third, allowing Statoil to sue would not risk duplicative

recoveries or the like. There is no suggestion that any

unnamed party can seek to recover for the same damages

Statoil suffered.

The antitrust laws have always given federal courts

jurisdiction over conspiracies that adversely affect

competition in the United States. The FTAIA limits that

jurisdiction, but it does so by exempting American export

conspiracies, not foreign conspiracies that injure American

competition.

US. 465, 102 $.C1. 2540, 73 L-Ed.24 149 (1982).

* McCormack, 845 F.2d at 1341.

37a

The majority opinion expresses concern that foreign litigants

will flock to the United States for redress of their injuries in

distant lands. The majority opinion, and the district court

——opinions it cites, seem to fear that the interpretation of the

FTAIA that Statoil advocates makes the Sherman Act an

antitrust regulation of foreign economies throughout the entire

world, a paternalistic lawmaking enterprise that ignores the

adequacy of foreign tribunals. But Congress has enacted no

such thing. Congress enacted the FTAIA to serve the United

States’ narrow interest in vigorous domestic competition.

The text of the FTAIA may be inelegant, but it serves the

selfish national interests of the United States: the FTAIA

excludes from antitrust liability all conduct that has caused no

antitrust injury to the United States economy;” but it enlists

all injured parties--foreign or domestic—to assist the

Department of Justice in deterring conduct that does harm the

forces of competition in the United States. When a

conspiracy causes a direct and substantial injury to

competition in the United States, the Clayton Act recruits

private parties to supplement the efforts of the Department of

Justice in ending the conspiracy. The FTAIA ensures that

parties injured by foreign aspects of the same conspiracy that

harms American commerce are part of the phalanx of

enforcers brought to bear by the Clayton Act. Thus, treble

damages suits by parties who suffer antitrust injury from a

conspiracy that has a direct and substantial harmful impact on

United States commerce serve a single function: the

protection of United States commerce. The FTAIA threatens

no parade of horribles--it does nothing more than zealously

protect competition in the United States while sparing from

the docket of American courts suits involving conspiracies

that affect only foreign economies.

38a

In sum, I believe the FTAIA does not divest -the federal

courts of jurisdiction over suits by plaintiffs who suffer

antitrust injuries from a conspiracy that also harms

competition in United States commerce. Whether the harm

felt in the United States is the source of the injury to the

plaintiff is irrelevant; it is the effects on the United States that

creates jurisdiction. Under the facts of this case, I would

conclude that the district court had jurisdiction over the suit

and that Statoil had standing to sue the defendants under the

Clayton Act. I respectfully dissent.

39a

15 U.S.C. § 1. Trusts, etc., in restraint of trade illegal;

penalty

Every contract, combination in the form of trust or

otherwise,- or conspiracy, in restraint of trade or com-

merce among the several States, or with foreign nations,

is hereby declared to be illegal. Every person who shall

make any contract or engage in any combination or con-

spiracy hereby declared to be illegal shall be deemed

guilty of a felony, and, on conviction thereof, shall be

punished by fine not exceeding $10,000,000 if a corpora-

tion, or, if any other person, $350,000, or by imprison-

ment not exceeding three years, or by both said

punishments, in the discretion of the court.

15 U.S.C. § 2. Monopolizing trade a felony; penalty

Every person who shall monopolize, or attempt to

monopolize, or combine or conspire with any other per-

son or persons, to monopolize any part of the trade or

commerce among the several States, or with foreign -

nations, shall be deemed guilty of a felony, and, on con-

viction thereof, shall be punished by fine not exceeding

$10,000,000 if a corporation, or, if any other person,

$350,000, or by imprisonment not exceeding three years,

or by both said punishments, in the discretion of the

court.

40a

15 U.S.C. § 6a. Conduct involving trade or commerce

with foreign nations

Sections 1 to 7 of this title 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 rea-

sonably 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 provi-

sions of sections 1 to 7 of this title, other than this section.

If sections 1 to 7 of this title apply to such conduct

only because of the operation of paragraph (1)(B), then

sections 1 to 7 of this title shall apply to such conduct

only for injury to export business in the United States.

15 U.S.C. § 15. Suits by persons injured

(a) Amount of recovery; prejudgment interest

Except as provided in subsection (b) of this section,

any person who shall be injured in his business or prop-

erty by reason of anything forbidden in the antitrust laws

may sue therefor in any district court of the United States

in the district in which the defendant resides or is found

or has an agent, without respect to the amount in contro-

versy, and shall recover threefold the damages by him

4la

Sustained, and the cost of suit, including a reasonable

attorney’s fee. The court may award under this section,

pursuant to a motion by such person promptly made,

simple interest on actual damages for the period begin-

ning on the date of service of such person’s pleading

setting a forth a claim under the antitrust laws and end-

ing on the date of judgment, or for any shorter period

therein, if the court finds that the award of such interest

for such period is just in the circumstances. In determin-

ing whether an award of interest under this section for

any period is just in the circumstances, the court shall

consider only -

(1) whether such person or the opposing party,

or either party’s representative, made motions or

asserted claims or defenses so lacking in merit as to

show that such party or representative acted inten-

tionally for delay, or otherwise acted in bad faith;

(2) whether, in the course of the action

involved, such person or the Opposing party, or

either party’s representative, violated any applicable

rule, statute, or court order providing for sanctions

for dilatory behavior or otherwise providing for

expeditious proceedings; and

(3)- whether such person or the Opposing party,

or either party’s representative, engaged in conduct

primarily for the purpose of delaying the litigation or

increasing the cost thereof.

(b) Amount of damages payable to foreign states and

instrumentalities of foreign states

(1) Except as provided in paragraph (2), any person

who is a foreign state may not recover under subsection

42a

(a) of this section an amount in excess of the actual

damages sustained by it and the cost of suit, including a

reasonable attorney’s fee.

(c)

(2) Paragraph (1) shall not apply to a foreign state if —

(A) such foreign state would be denied, under

section 1605(a)(2) of Title 28, immunity in a case in

which the action is based upon a commercial activ-

ity, or an act, that is the subject matter of its claim

under this section;

(B) such foreign state waives all defenses

based upon or arising out of its status as a foreign

state, to any claims brought against it in the same

action;

commercial activities; and

(D) such foreign state does not function, with

respect to the commercial activity, or the act, that is

the subject matter of its claim under this section as a

procurement entity for itself or for another foreign

state.

Definitions

For purposes of this section -

(1) the term “commercial activity” shall have

the meaning given it in section 1603(d) of Title 28,

and

(2) the term “foreign state” shall have the

“meaning given it in section 1603(a) of Title 28.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.