The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act (“FTAIA”) has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. The FTAIA vests federal district courts with subject matter jurisdiction over conduct that “has a direct, substantial and reasonably foreseeable effect” on U.S. commerce that “gives rise to a claim” under the Sherman Act. The FTAIA’s unique statutory language offers little guidance for district courts when an international cartel raises the price of a good or service in both domestic and foreign markets. In that case, does the FTAIA permit foreign plaintiffs injured in foreign markets access to U.S. federal district courts? Recently, the U.S. Supreme Court ruled in F. Hoffmann-La Roche, Ltd. v. Empagran S.A. (“Empagran”) that the doctrine of “comity among nations” limited the reach of U.S. antitrust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This decision left unresolved the split between the Courts of Appeals for the Fifth Circuit and the Second Circuit over the FTAIA’s language and history. Moreover, the Supreme Court’s resort to the existence of foreign regulatory schemes to limit Sherman Act jurisdiction ignored Congress’s intent to deter international cartels and protect American markets.
This Recent Development argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by American businesses in anticompetitive conduct overseas. Part III narrates the factual and procedural history of Empagran. Part IV contrasts the Fifth and Second Circuits’ interpretations of the FTAIA. In Part V, the Recent Development analyzes the Supreme Court’s ruling in Empagran, and Part VI outlines the procedurally questionable application of the “comity among nations” doctrine. Finally, the Recent Development concludes that, by invoking comity, the Supreme Court added to the difficulties of interpreting the FTAIA.