F. Hoffmann-La Roche Ltd. v. Empagran S. A.

155

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F. HOFFMANN-LA ROCHE LTD ET AL. v. EMPAGRAN

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 03-724. Argued April 26, 2004-Decided June 14, 2004 No. 03-724. Argued April 26, 2004—Decided June 14, 2004

The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA or Act) The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA or Act) provides that the Sherman Act "shall not apply to conduct involving provides that the Sherman Act "shall not apply to conduct involving trade or commerce ... with foreign nations," 15 U. S. C. § 6a, but creates trade or commerce ... with foreign nations," 15 U. S. C. § 6a, but creates exceptions for conduct that significantly harms imports, domestic com- exceptions for conduct that significantly harms imports, domestic com- In this case, vitamin purchasers filed a merce, or American exporters. merce, or American exporters. In this case, vitamin purchasers filed a class action alleging that vitamin manufacturers and distributors had class action alleging that vitamin manufacturers and distributors had engaged in a price-fixing conspiracy, raising vitamin prices in the United engaged in a price-fixing conspiracy, raising vitamin prices in the United States and foreign countries, in violation of the Sherman Act. As rele- States and foreign countries, in violation of the Sherman Act. As rele- vant here, defendants (petitioners) moved to dismiss the suit as to the vant here, defendants (petitioners) moved to dismiss the suit as to the foreign purchasers (respondents), foreign companies located abroad, foreign purchasers (respondents), foreign companies located abroad, who had purchased vitamins only outside United States commerce.

In who had purchased vitamins only outside United States commerce. In dismissing respondents' claims, the District Court applied the FTAIA dismissing respondents' claims, the District Court applied the FTAIA and found none of its exceptions applicable. The Court of Appeals re- and found none of its exceptions applicable. The Court of Appeals re- versed, concluding that the FTAIA's exclusionary rule applied, but so versed, concluding that the FTAIA's exclusionary rule applied, but so did its exception for conduct that has a "direct, substantial and reason- did its exception for conduct that has a "direct, substantial and reason- ably foreseeable effect" on domestic commerce that "gives rise to a ably foreseeable effect", on domestic commerce that "gives rise to a [Sherman Act] claim," §§6a(1)(A), (2). Assuming that the foreign ef- (Sherman Act] claim," §§6a(1)(A), (2). Assuming that the foreign ef- fect, i. e., higher foreign prices, was independent of the domestic effect, fect, i. e., higher foreign prices, was independent of the domestic effect,

i. e., higher domestic prices, the iourt nonetheless concluded that the

i. e., higher domestic prices, the court nonetheless concluded that the

Act's text, legislative history, and policy goal of deterring harmful Act's text, legislative history, and policy goal of deterring harmful price-fixing activity made the lack of connection between the two ef- price-fixing activity made the lack of connection between the two ef- fects inconsequential. fects inconsequential.

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

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

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(b) The FTAIA exception does not apply here for two reasons. First, (b) The FTAIA exception does not apply here for two reasons. First, this Court ordinarily construes ambiguous statutes to avoid unreason- this Court ordinarily construes ambiguous statutes to avoid unreason- able interference with other nations' sovereign authority. This rule of able interference with other nations' sovereign authority. This rule of construction reflects customary international law principles and cau- construction reflects customary international law principles and cau- tions courts to assume that legislators take account of other nations' tions courts to assume that legislators take account of other nations' legitimate sovereign interests when writing American laws.

It thereby legitimate sovereign interests when writing American laws. It thereby helps the potentially conflicting laws of different nations work together helps the potentially conflicting laws of different nations work together in harmony. While applying America's antitrust laws to foreign con- in harmony. While applying America's antitrust laws to foreign con- duct can interfere with a foreign nation's ability to regulate its own duct can interfere with a foreign nation's ability to regulate its own commercial affairs, courts have long held such application nonetheless commercial affairs, courts have long held such application nonetheless reasonable, and hence consistent with prescriptive comity principles, in- reasonable, and hence consistent with prescriptive comity principles, in- sofar as the laws reflect a legislative effort to redress domestic antitrust sofar as the laws reflect a legislative effort to redress domestic antitrust injury caused by foreign anticompetitive conduct.

However, it is not injury caused by foreign anticompetitive conduct. However, it is not reasonable to apply American laws to foreign conduct insofar as that reasonable to apply American laws to foreign conduct insofar as that conduct causes independent foreign harm that alone gives rise to a conduct causes independent foreign harm that alone gives rise to a plaintiff's claim. The risk of interference is the same, but the justifica- plaintiff's claim. The risk of interference is the same, but the justifica- tion for the interference seems insubstantial.

While some of the anti- tion for the interference seems insubstantial. While some of the anti- competitive conduct alleged here took place in America, the higher for- competitive conduct alleged here took place in America, the higher for- eign prices are not the consequence of any domestic anticompetitive eign prices are not the consequence of any domestic anticompetitive conduct sought to be forbidden by Congress, which rather wanted to conduct sought to be forbidden by Congress, which rather wanted to release domestic (and foreign) anticompetitive conduct from Sherman release domestic (and foreign) anticompetitive conduct from Sherman Act constraint when that conduct causes foreign harm. Contrary to Act constraint when that conduct causes foreign harm. Contrary to respondents' claim, the comity concerns remain real as other nations respondents' claim, the comity concerns remain real as other nations have not in all areas adopted antitrust laws similar to this country's have not in all areas adopted antitrust laws similar to this country's and, in any event, disagree dramatically about appropriate remedies.

and, in any event, disagree dramatically about appropriate remedies.

Respondents' alternative argument that case-by-case comity analysis is Respondents' alternative argument that case-by-case comity analysis is preferable to an across the board exclusion of foreign injury cases is too preferable to an across the board exclusion of foreign injury cases is too complex to prove workable. Second, the FTAIA's language and hist6ry complex to prove workable. Second, the FTAIA's language and históry suggest that Congress designed the Act to clarify, perhaps to limit, but suggest that Congress designed the Act to clarify, perhaps to limit, but not to expand, the Sherman Act's scope as applied to foreign commerce. not to expand, the Sherman Act's scope as applied to foreign commerce.

There is no significant indication that at the time Congress wrote the There is no significant indication that at the time Congress wrote the FTAIA courts would have thought the Sherman Act applicable in these FTAIA courts would have thought the Sherman Act applicable in these circumstances, nor do the six cases on which respondents rely warrant circumstances, nor do the six cases on which respondents rely warrant a different conclusion. Pp. 163-173. a different conclusion. Pp. 163-173.

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

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

Cite as: 542 U. S. 155 (2004) Cite as: 542 U. S. 155 (2004)

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

315 F. 3d 338, vacated and remanded.

315 F. 3d 338, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which REHNQUIST, BREYER, J., delivered the opinion of the Court, in which REHNQUIST,

SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 176. O'CONNOR, J., took no part in the consideration or J., joined, post, p. 176. O'CONNOR, J., took no part in the consideration or decision of the case. decision of the case.

Stephen M. Shapiro argued the cause for petitioners.

Stephen M. Shapiro argued the cause for petitioners.

With him on the briefs were Arthur F. Golden, Tyrone C.

With him on the briefs were Arthur F. Golden, Tyrone C.

Fahner, Andrew S. Marovitz, Jeffrey W Sarles, Lawrence Fahner, Andrew S. Marovitz, Jeffrey W. Sarles, Lawrence Portnoy, Charles S. Duggan, John M. Majoras, Daniel H.

Portnoy, Charles S. Duggan, John M. Majoras, Daniel H.

Bromberg, Kenneth Prince, Lawrence Byrne, Bruce L.

Bromberg, Kenneth Prince, Lawrence Byrne, Bruce L.

Montgomery, D. Stuart Meiklejohn, Michael L. Denger, Mi- Montgomery, D. Stuart Meiklejohn, Michael L. Denger, Mi- guel A. Estrada, Laurence T Sorkin, Roy L. Regozin, Don- guel A. Estrada, Laurence T. Sorkin, Roy L. Regozin, Don- ald I. Baker, Donald C. Klawiter, Peter E. Halle, James R. ald I. Baker, Donald C. Klawiter, Peter E. Halle, James R.

Weiss, Jim J Shoemake, Thomas M. Mueller, Michael 0.

Weiss, Jim J. Shoemake, Thomas M. Mueller, Michael 0.

Ware, Aileen Meyer, Sutton Keany, Kenneth W. Starr, Ware, Aileen Meyer, Sutton Keany, Kenneth W. Starr, Moses Silverman, Aidan Synnott, Mark Riera, Kevin R.

Moses Silverman, Aidan Synnott, Mark Riera, Kevin R.

Sullivan, Peter M. Todaro, William J Kolasky, and Ed- Sullivan, Peter M. Todaro, William J Kolasky, and Ed- ward DuMont. ward DuMont.

Assistant Attorney General Pate argued the cause for the Assistant Attorney General Pate argued the cause for the United States as amicus curiae urging reversal. With him United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Kneedler, Deputy on the brief were Acting Solicitor General Kneedler, Deputy Assistant Attorney General Delrahim, Lisa S. Blatt, Robert Assistant Attorney General Delrahim, Lisa S. Blatt, Robert

B. Nicholson, Steven J. Mintz, William H. Taft IV, and John

B. Nicholson, Steven J. Mintz, William H. Taft IV, and John

D. Graubert.

D. Graubert.

. Thomas C. Goldstein argued the cause for respondents.

Thomas C. Goldstein argued the cause for respondents.

With him on the brief were Amy Howe, Michael H. Gottes- With him on the brief were Amy Howe, Michael H. Gottes- man, Michael D. Hausfeld, Paul T Gallagher, and Brian man, Michael D. Hausfeld, Paul T. Gallagher, and Brian

A. Ratner.*

A. Ratner.*

*Briefs of amici curiae urging reversal were filed for the Government *Briefs of amici curiae urging reversal were filed for the Government of Canada by Homer E..Moyer, Jr., Michael T Brady, and Alan I. Horo- of Canada by Homer E: Moyer, Jr., Michael T. Brady, and Alan L Horo- witz; for the Government of the Federal Republic of Germany et al. by witz; for the Government of the Federal Republic of Germany et al. by David C. Frederick; for the Government of the United Kingdom of Great David C. Frederick; for the Government of the United Kingdom of Great Britain and Northern Ireland et al. by Ernest Gellhorn and Ann Britain and Northern Ireland et al. by Ernest Gellhorn and Ann

158 158 F. HOFFMANN-LA ROCHE LTD v. EMPAGRAN S. A. F. HOFFMANN-LA ROCHE LTD v. EMPAGRAN S. A.

Opinion of the Court Opinion of the Court JUSTICE BREYER delivered the opinion of the Court.

JUSTICE BREYER delivered the opinion of the Court.

The Foreign Trade Antitrust Improvements Act of 1982 The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) excludes from the Sherman Act's reach much anti- (FTAIA) excludes from the Sherman Act's reach much anti- competitive conduct that causes only foreign injury. It does competitive conduct that causes only foreign injury. It does so by setting forth a general rule stating that the Sherman so by setting forth a general rule stating that the Sherman Act "shall not apply to conduct involving trade or commerce Act "shall not apply to conduct involving trade or commerce ... with foreign nations."

It ... with foreign nations." 96 Stat. 1246, 15 U. S. C. § 6a. It then creates exceptions to the general rule, applicable where then creates exceptions to the general rule, applicable where (roughly speaking) that conduct significantly harms imports, (roughly speaking) that conduct significantly harms imports, domestic commerce, or American exporters. domestic commerce, or American exporters.

96 Stat. 1246, 15 U. S. C. § 6a.

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

does.

Weymouth; for the Government of Japan by Douglas E. Rosenthal; for Weymouth, for the Government of Japan by Douglas E. Rosenthal; for the Business Roundtable by Janet L. McDavid, Jonathan S. Franklin, the Business Roundtable by Janet L. McDavid, Jonathan S. Franklin, and William H. Johnson; for the Chamber of Commerce of the United and William H. Johnson; for the Chamber of Commerce of the United States et al. by Roy T Englert, Jr., Donald J Russell, Max Huffmln, States et al. by Roy T. Englert, Jr., Donald J. Russell, Max Huffmçzn, and Robin S. Conrad; for Bank Austria AG et al. by Carter G. Phillips, and Robin S. Conrad; for Bank Austria AG et al. by Carter G. Phillips, Virginia A. Seitz, John H. Shenefield, Jonathan M. Rich, Robert A. Horo- Virginia A. Seitz, John H. Shenefield, Jonathan M. Rich, Robert A. Horo- witz, Richard A. Martin, Richard S. Goldstein, Jeffrey Barist, Charles witz, Richard A. Martin, Richard S. Goldstein, Jeffrey Barist, Charles Westland, and Richard L. Mattiaccio; and for the International Chamber Westland, and Richard L. Mattiaccio; and for the International Chamber of Commerce by A. Paul Victor and Steven Alan Reiss.

of Commerce by A. Paul Victor and Steven Alan Reiss.

Briefs of amici curiae urging affirmance were filed for the Committee Briefs of amici curiae urging affirmance were filed for the Committee to Support the Antitrust Laws et al. by Charles J Cooper and David H. to Support the Antitrust Laws et al. by Charles J. Cooper and David H.

Thompson; for Public Citizen by Amanda Frost and Brian Wolfman; for Thompson; for Public Citizen by Amanda Frost and Brian Wolfman; for Harry First et al. by Jonathan S. Massey, Lynn Lincoln Sarko, Mark A.

Harry First et al. by Jonathan S. Massey, Lynn Lincoln Sarko, Mark A.

Griffin, Edgar D. Gankendorff, and Henry .S. Provosty; for Ralf Michaels Griffin, Edgar D. Gankendorff, and Henry .S. Provosty; for Ralf Michaels et al. by Arthur R. Miller; and for Joseph E. Stiglitz et al. by Erik S. et al. by Arthur R. Miller, and for Joseph E. Stiglitz et al. by Erik S.

Jaffe and Mary Boies.

Jaffe and Mary Bogies.

Briefs of amici curiae were filed for Certain Professors of Economics Briefs of amici curiae were filed for Certain Professors of Economics by James vanR. Springer and James R. Martin; and for Darren Bush et- by James vanR. Springer and James R. Martin; and for Darren Bush et- al. by Peter J Rubin. al. by Peter J. Rubin.

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

independent foreign harm.

To clarify: The issue before us concerns (1) significant for- To clarify: The issue before us concerns (1) significant for- eign anticompetitive conduct with (2) an adverse domestic eign anticompetitive conduct with (2) an adverse domestic effect and (3) an independent foreign effect giving rise to the effect and (3) an independent foreign effect giving rise to the claim.

In more concrete terms, this case involves vitamin claim. In more concrete terms, this case involves vitamin sellers around the world that agreed to fix prices, leading to sellers around the world that agreed to fix prices, leading to higher vitamin prices in the United States and independ- higher vitamin prices in the United States and independ- ently leading to higher vitamin prices in other countries such ently leading to higher vitamin prices in other countries such as Ecuador. We conclude that, in this scenario, a purchaser as Ecuador. We conclude that, in this scenario, a purchaser in the United States could bring a Sherman Act claim under in the United States could bring a Sherman Act claim under the FTAIA based on domestic injury, but a purchaser in Ec- the FTAIA based on domestic injury, but a purchaser in Ec- uador could not bring a Sherman Act claim based on for- uador could not bring a Sherman Act claim based on for- eign harm.

eign harm.

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

countries.

As relevant here, petitioners moved to dismiss the suit as As relevant here, petitioners moved to dismiss the suit as to the foreign purchasers (the respondents here), five foreign to the foreign purchasers (the respondents here), five foreign vitamin distributors located in Ukraine, Australia, Ecuador, vitamin distributors located in Ukraine, Australia, Ecuador, and Panama, each of which bought vitamins from peti- and Panama, each of which bought vitamins from peti-

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tioners for delivery outside the United States. No. Civ. tioners for delivery outside the United States. No. Civ.

001686TFH, 2001 WL 761360, *4 (D. D. C., June 7, 2001) (de- 001686TFH, 2001 WL 761360, *4 (D. D. C., June 7, 2001) (de- scribing the relevant transactions as "wholly foreign"). Re- scribing the relevant transactions as "wholly foreign"). Re- spondents have never asserted that they purchased any vita- spondents have never asserted that they purchased any vita- mins in the United States or in transactions in United States mins in the United States or in transactions in United States commerce, and the question presented assumes that the rel- commerce, and the question presented assumes that the rel- evant "transactions occurr[ed] entirely outside U. S. com- evant "transactions occurr[ed] entirely outside U. S. com- merce," Pet. for Cert. (i). The District Court dismissed merce," Pet. for Cert. (i). The District Court dismissed their claims. 2001 WL 761360, at *4.

It applied the FTAIA their claims. 2001 WL 761360, at *4. It applied the FTAIA and found none of the exceptions applicable.

Id., at *3-*4. and found none of the exceptions applicable. Id., at *3—*4.

Thereafter, the domestic purchasers transferred their claims Thereafter, the domestic purchasers transferred their claims to another pending suit and did not take part in the subse- to another pending suit and did not take part in the subse- quent appeal. 315 F. 3d 338, 343 (CADC 2003). quent appeal. 315 F. 3d 338, 343 (CADC 2003).

A divided panel of the Court of Appeals reversed. 315 A divided panel of the Court of Appeals reversed. 315

F. 3d 338. The panel concluded that the FTAIA's general

F. 3d 338. The panel concluded that the FTAIA's general

exclusionary rule applied to the case, but that its domestic- exclusionary rule applied to the case, but that its domestic- injury exception also applied.

It basically read the plain- injury exception also applied. It basically read the plain- tiffs' complaint to allege that the vitamin manufacturers' tiffs' complaint to allege that the vitamin manufacturers' price-fixing conspiracy (1) had "a direct, substantial, and rea- price-fixing conspiracy (1) had "a direct, substantial, and rea- sonably foreseeable effect" on ordinary domestic trade or sonably foreseeable effect" on ordinary domestic trade or commerce, i. e., the conspiracy brought about higher domes- commerce, i. e., the conspiracy brought about higher domes- tic vitamin prices, and (2) "such effect" gave "rise to a [Sher- tic vitamin prices, and (2) "such effect" gave "rise to a [Sher- man Act] claim," i. e., an injured domestic customer could man Act] claim," i. e., an injured domestic customer could have brought a Sherman Act suit, 15 U. S. C. §§ 6a(1), (2). have brought a Sherman Act suit, 15 U.S. C. H 6a(1), (2).

Those allegations, the court held, are sufficient to meet the Those allegations, the court held, are sufficient to meet the exception's requirements. 315 F. 3d, at 341. exception's requirements. 315 F. 3d, at 341.

The court assumed that the foreign effect, i. e., higher The court assumed that the foreign effect, i. e., higher prices in Ukraine, Panama, Australia, and Ecuador, was inde- prices in Ukraine, Panama, Australia, and Ecuador, was inde- pendent of the domestic effect, i. e., higher domestic prices. pendent of the domestic effect, i. e., higher domestic prices.

Ibid. But it concluded that, in light of the FTAIA's text, Ibid. But it concluded that, in light of the FTAIA's text, legislative history, and the policy goal of deterring harmful legislative history, and the policy goal of deterring harmful price-fixing activity, this lack of connection does not matter. price-fixing activity, this lack of connection does not matter.

Ibid. The District of Columbia Circuit denied rehearing en Ibid. The District of Columbia Circuit denied rehearing en banc by a 4-to-3 vote. App. to Pet. for Cert. 44a. banc by a 4-to-3 vote. App. to Pet. for Cert. 44a.

We granted certiorari to resolve a split among the Courts We granted certiorari to resolve a split among the Courts of Appeals about the exception's application. Compare Den of Appeals about the exception's application. Compare Den

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Norske Stats Oljeselskap As v. HeereMac Vof, 241 F. 3d 420, Norske Stats 01jeselskap As v. HeereMac Vof, 241 F. 3d 420, 427 (CA5 2001) (exception does not apply where foreign in- 427 (CA5 2001) (exception does not apply where foreign in- jury independent of domestic harm), with Kruman v. Chris- jury independent of domestic harm), with Kruman v. Chris- tie's Int'l PLC, 284 F. 3d 384, 400 (CA2 2002) (exception does tie's Int'l PLC, 284 F. 3d 384, 400 (CA2 2002) (exception does apply even where foreign injury independent); 315 F. 3d, at apply even where foreign injury independent); 315 F. 3d, at 341 (similar).

341 (similar).

The FTAIA seeks to make clear to American exporters The FTAIA seeks to make clear to American exporters (and to firms doing business abroad) that the Sherman Act (and to firms doing business abroad) that the Sherman Act does not prevent them from entering into business arrange- does not prevent them from entering into business arrange- ments (say, joint-selling arrangements), however anticompet- ments (say, joint-selling arrangements), however anticompet- itive, as long as those arrangements adversely affect only itive, as long as those arrangements adversely affect only foreign markets. See H. R. Rep. No. 97-686, pp. 1-3, 9-10 foreign markets. See H. R. Rep. No. 97-686, pp. 1-3, 9-10 (1982) (hereinafter House Report).

It does so by removing (1982) (hereinafter House Report). It does so by removing from the Sherman Act's reach, (1) export activities and from the Sherman Act's reach, (1) export activities and

(2) other commercial activities taking place abroad, unless

(2) other commercial activities taking place abroad, unless

those activities adversely affect domestic commerce, imports those activities adversely affect domestic commerce, imports to the United States, or exporting activities of one engaged to the United States, or exporting activities of one engaged in such activities within the United States. in such activities within the United States.

"Sections 1 to 7 of this title [the Sherman Act] shall "Sections 1 to 7 of this title [the Sherman Act] shall not apply to conduct involving trade or commerce (other not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign na- than import trade or import commerce) with foreign na- tions unless- tions unless—

"(1) such conduct has a direct, substantial, and rea- "(1) such conduct has a direct, substantial, and rea-

sonably foreseeable effect- sonably foreseeable effect—

"(A) on trade or commerce which is not trade or "(A) on trade or commerce which is not trade or commerce with foreign nations [i. e., domestic trade or commerce with foreign nations [i. e., domestic trade or commerce], or on import trade or import commerce with commerce], or on import trade or import commerce with foreign nations; or foreign nations; or

"(B) on export trade or export commerce with foreign "(B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce nations, of a person engaged in such trade or commerce in the United States [i. e., on an American export com- in the United States U. e., on an American export com- petitor]; and petitor]; and

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"(2) such effect gives rise to a claim under the pro- "(2) such effect gives rise to a claim under the pro- visions of sections 1 to 7 of this title, other than this visions of sections 1 to 7 of this title, other than this section. section.

"If sections 1 to 7 of this title apply to such conduct "If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States." only for injury to export business in the United States."

15 U. S. C. § 6a.

15 U. S. C. § 6a.

This technical language initially lays down a general rule This technical language initially lays down a general rule placing all (nonimport) activity involving foreign commerce placing all (nonimport) activity involving foreign commerce outside the Sherman Act's reach.

It then brings such con- outside the Sherman Act's reach. It then brings such con- duct back within the Sherman Act's reach provided that the duct back within the Sherman Act's reach provided that the conduct both (1) sufficiently affects American commerce, i. e., conduct both (1) sufficiently affects American commerce, i. e., it has a "direct, substantial, and reasonably foreseeable ef- it has a "direct, substantial, and reasonably foreseeable ef- fect" on American domestic, import, or (certain) export com- fect" on American domestic, import, or (certain) export com- merce, and (2) has an effect of a kind that antitrust law merce, and (2) has an effect of a kind that antitrust law considers harmful, i. e., the "effect" must "giv[e] rise to a considers harmful, i. e., the "effect" must "giv[e] rise to a [Sherman Act] claim." §§ 6a(1), (2).

[Sherman Act] claim." §§ 6a(1), (2).

We ask here how this language applies to price-fixing ac- We ask here how this language applies to price-fixing ac- tivity that is in significant part foreign, that has the requisite tivity that is in significant part foreign, that has the requisite domestic effect, and that also has independent foreign effects domestic effect, and that also has independent foreign effects giving rise to the plaintiff's claim. giving rise to the plaintiff's claim.

Respondents make a threshold argument. They say that Respondents make a threshold argument. They say that the transactions here at issue fall outside the FTAIA because the transactions here at issue fall outside the FTAIA because the FTAIA's general exclusionary rule applies only to con- the FTAIA's general exclusionary rule applies only to con- duct involving exports. The rule says that the Sherman Act duct involving exports. The rule says that the Sherman Act "shall not apply to conduct involving trade or commerce "shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign (other than import trade or import commerce) with foreign nations." §6a (emphasis added). The word "with" means nations." §6a (emphasis added). The word "with" means between the United States and foreign nations. And, they between the United States and foreign nations. And, they contend, commerce between the United States and foreign contend, commerce between the United States and foreign nations that is not import commerce must consist of export nations that is not import commerce must consist of export commerce-a kind of commerce irrelevant to the case at commerce—a kind of commerce irrelevant to the case at hand.

hand.

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The difficulty with respondents' argument is that the The difficulty with respondents' argument is that the ' FTAIA originated in a bill that initially referred only to "ex- FTAIA originated in a bill that initially referred only to "ex- port trade or export commerce." H. R. 5235, 97th Cong., port trade or export commerce." H. R. 5235, 97th Cong., 1st Sess., § 1 (1981). But the House Judiciary Committee 1st Sess., § 1 (1981). But the House Judiciary Committee subsequently changed that language to "trade or commerce subsequently changed that language to "trade or commerce (other than import trade or import commerce)."

(other than import trade or import commerce)." 15 U. S. C. § 6a. And it did so deliberately to include commerce that did § 6a. And it did so deliberately to include commerce that did not involve American exports but which was wholly foreign. not involve American exports but which was wholly foreign.

The House Report says in relevant part:

"The Subcommittee's 'export' commerce limitation ap- "The Subcommittee's `export' commerce limitation ap- peared to make the amendments inapplicable to transac- peared to make the amendments inapplicable to transac- tions that were neither import nor export, i. e., transac- tions that were neither import nor export, i. e., transac- tions within, between, or among other nations ... tions within, between, or among other nations. . . .

Such foreign transactions should, for the purposes of Such foreign transactions should, for the purposes of this legislation, be treated in the same manner as ex- this legislation, be treated in the same manner as ex- port transactions-that is, there should be no American port transactions—that is, there should be no American antitrust jurisdiction absent a direct, substantial and antitrust jurisdiction absent a direct, substantial and reasonably foreseeable effect on domestic commerce or reasonably foreseeable effect on domestic commerce or a domestic competitor. The Committee amendment a domestic competitor. The Committee amendment therefore deletes references to 'export' trade, and sub- therefore deletes references to `export' trade, and sub- stitutes phrases such as 'other than import' trade. It is stitutes phrases such as `other than import' trade. It is thus clear that wholly foreign transactions as well as thus clear that wholly foreign transactions as well as export transactions are covered, by the amendment, but export transactions are covered. by the amendment, but that import transactions are not." House Report, at that import transactions are not." House Report, at 9-10 (emphases added).

9-10 (emphases added).

For those who find legislative history useful, the House For those who find legislative history useful, the House Report's account should end the matter. Others, by consid- Report's account should end the matter. Others, by consid- ering carefully the amendment itself and the lack of any ering carefully the amendment itself and the lack of any other plausible purpose, may reach the same conclusion, other plausible purpose, may reach the same conclusion, namely, that the FTAIA's general rule applies where the an- namely, that the FTAIA's general rule applies where the an- ticompetitive conduct at issue is foreign. ticompetitive conduct at issue is foreign.

We turn now to the basic question presented, that of the We turn now to the basic question presented, that of the exception's application. Because the underlying antitrust exception's application. Because the underlying antitrust

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action is complex, potentially raising questions not directly action is complex, potentially raising questions not directly at issue here, we reemphasize that we base our decision upon at issue here, we reemphasize that we base our decision upon the following: The price-fixing conduct significantly and ad- the following: The price-fixing conduct significantly and ad- versely affects both customers outside the United States and versely affects both customers outside the United States and customers within the United States, but the adverse foreign customers within the United States, but the adverse foreign effect is independent of any adverse domestic effect.

In effect is independent of any adverse domestic effect. In these circumstances, we find that the FTAIA exception does these circumstances, we find that the FTAIA exception does not apply (and thus the Sherman Act does not apply) for two not apply (and thus the Sherman Act does not apply) for two main reasons. main reasons.

First, this Court ordinarily construes ambiguous statutes First, this Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign au- to avoid unreasonable interference with the sovereign au- thority of other nations. See, e. g., McCulloch v. Sociedad thority of other nations. See, e. g., McCulloch v Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 20-22 Nacional de Marineros de Honduras, 372 U. S. 10, 20-22 (1963) (application of National Labor Relations Act to (1963) (application of National Labor Relations Act to foreign-flag vessels); Romero v. International Terminal Op- foreign-flag vessels); Romero v. International Terminal Op- erating Co., 358 U. S. 354, 382-383 (1959) (application of erating Co., 358 U. S. 354, 382-383 (1959) (application of Jones Act in maritime case); Lauritzen v. Larsen, 345 U. S.

Jones Act in maritime case); Lauritzen v. Larsen, 345 U. S.

571, 578 (1953) (same). This rule of construction reflects 571, 578 (1953) (same). This rule of construction reflects principles of customary international law-law that (we must principles of customary international law—law that (we must assume) Congress ordinarily seeks to follow. See Restate- assume) Congress ordinarily seeks to follow. See Restate- ment (Third) of Foreign Relations Law of the United States ment (Third) of Foreign Relations Law of the United States §§403(1), 403(2) (1986) (hereinafter Restatement) (limiting §§403(l), 403(2) (1986) (hereinafter Restatement) (limiting the unreasonable exercise of prescriptive jurisdiction with the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with an- respect to a person or activity having connections with an- other State); Murray v. Schooner Charming Betsy, 2 Cranch other State); Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804) ("[A]n act of congress ought never to be con- 64, 118 (1804) ("[A]n act of congress ought never to be con- strued to violate the law of nations if any other possible strued to violate the law of nations if any other possible construction remains"); Hartford Fire Ins. Co. v. California, construction remains"); Hartford Fire Ins. Co. v. California, 509 U. S. 764, 817 (1993) (SCALIA, J., dissenting) (identifying 509 U. S. 764, 817 (1993) (SCALIA, J., dissenting) (identifying rule of construction as derived from the principle of "'pre- rule of construction as derived from the principle of "'pre- scriptive comity' ").

scriptive comity"').

This rule of statutory construction cautions courts to as- This rule of statutory construction cautions courts to as- sume that legislators take account of the legitimate sover- sume that legislators take account of the legitimate sover- eign interests of other nations when they write American eign interests of other nations when they write American laws.

It thereby helps the potentially conflicting laws of dif- laws. It thereby helps the potentially conflicting laws of dif- ferent nations work together in harmony-a harmony partic- ferent nations work together in harmony—a harmony partic-

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ularly needed in today's highly interdependent commercial ularly needed in today's highly interdependent commercial world. world.

No one denies that America's antitrust laws, when applied No one denies that America's antitrust laws, when applied to foreign conduct, can interfere with a foreign nation's abil- to foreign conduct, can interfere with a foreign nation's abil- ity independently to regulate its own commercial affairs. ity independently to regulate its own commercial affairs.

But our courts have long held that application of our anti- But our courts have long held that application of our anti- trust laws to foreign anticompetitive conduct is nonetheless trust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescrip- reasonable, and hence consistent with principles of prescrip- tive comity, insofar as they reflect a legislative effort to re- tive comity, insofar as they reflect a legislative effort to re- dress domestic antitrust injury that foreign anticompetitive dress domestic antitrust injury that foreign anticompetitive conduct has caused. See United States v. Aluminum Co. of conduct has caused. See United States v. Aluminum Co. of America, 148 F. 2d 416, 443-444 (CA2 1945) (L. Hand, J.); 1 America, 148 F. 2d 416, 443-444 (CA2 1945) (L. Hand, J.); 1

P. Areeda & D. Turner, Antitrust Law 236 (1978).

P. Areeda & D. Turner, Antitrust Law 1236 (1978).

But why is it reasonable to apply those laws to foreign But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plain- harm and that foreign harm alone gives rise to the plain- tiff's claim? Like the former case, application of those laws tiff's claim? Like the former case, application of those laws creates a serious risk of interference with a foreign nation's creates a serious risk of interference with a foreign nation's ability independently to regulate its own commercial affairs. ability independently to regulate its own commercial affairs.

But, unlike the former case, the justification for that interfer- But, unlike the former case, the justification for that interfer- ence seems insubstdintial. See Restatement § 403(2) (deter- ence seems insubstántial. See Restatement § 403(2) (deter- mining reasonableness on basis of such factors as connections mining reasonableness on basis of such factors as connections with regulating nation, harm to that nation's interests, ex- with regulating nation, harm to that nation's interests, ex- tent to which other nations regulate, and the potential for tent to which other nations regulate, and the potential for conflict). Why should American law supplant, for example, conflict). Why should American law supplant, for example, Canada's or Great Britain's or Japan's own determination Canada's or Great Britain's or Japan's own determination about how best to protect Canadian or British or Japanese about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in signifi- customers from anticompetitive conduct engaged in signifi- cant part by Canadian or British or Japanese or other for- cant part by Canadian or British or Japanese or other for- eign companies?

eign companies?

We recognize that principles of comity provide Congress We recognize that principles of comity provide Congress greater leeway when it seeks to control through legislation greater leeway when it seeks to control through legislation the actions of American companies, see Restatement §402; the actions of American companies, see Restatement §402; and some of the anticompetitive price-fixing conduct alleged and some of the anticompetitive price-fixing conduct alleged here took place in America. But the higher foreign prices here took place in America. But the higher foreign prices of which the foreign plaintiffs here complain are not the con- of which the foreign plaintiffs here complain are not the con-

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sequence of any domestic anticompetitive conduct that Con- sequence of any domestic anticompetitive conduct that Con- gress sought to forbid, for Congress did not seek to forbid gress sought to forbid, for Congress did not seek to forbid any such conduct insofar as it is here relevant, i. e., insofar any such conduct insofar as it is here relevant, i. e., insofar as it is intertwined with foreign conduct that causes inde- as it is intertwined with foreign conduct that causes inde- pendent foreign harm. Rather Congress sought to release pendent foreign harm. Rather Congress sought to release domestic (and foreign) anticompetitive conduct from Sher- domestic (and foreign) anticompetitive conduct from Sher- man Act constraints when that conduct causes foreign harm. man Act constraints when that conduct causes foreign harm.

Congress, of course, did make an exception where that con- Congress, of course, did make an exception where that con- duct also causes domestic harm. See House Report, at 13 duct also causes domestic harm. See House Report, at 13 (concerns about American firms' participation in interna- (concerns about American firms' participation in interna- tional cartels addressed through "domestic injury" excep- tional cartels addressed through "domestic injury" excep- tion). But any independent domestic harm the foreign con- tion). But any independent domestic harm the foreign con- duct causes here has, by definition, little or nothing to do duct causes here has, by definition, little or nothing to do with the matter. with the matter.

We thus repeat the basic question: Why is it reasonable to We thus repeat the basic question: Why is it reasonable to apply this law to conduct that is significantly foreign insofar apply this law to conduct that is significantly foreign insofar as that conduct causes independent foreign harm and that as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff's claim? We foreign harm alone gives rise to the plaintiff's claim? We can find no good answer to the question. can find no good answer to the question.

The Areeda and Hovenkamp treatise notes that under the The Areeda and Hovenkamp treatise notes that under the

Court of Appeals' interpretation of the statute Court of Appeals' interpretation of the statute

.

"a Malaysian customer could . . maintain an action "a Malaysian customer could .. . maintain an action under United States law in a United States court against under United States law in a United States court against its own Malaysian supplier, another cartel member, sim- its own Malaysian supplier, another cartel member, sim- ply by noting that unnamed third parties injured [in the ply by noting that unnamed third parties injured [in the United States] by the American [cartel member's] con- United States] by the American [cartel member's] con- duct would also have a cause of action. Effectively, the duct would also have a cause of action. Effectively, the United States courts would provide worldwide subject United States courts would provide worldwide subject matter jurisdiction to any foreign suitor wishing to sue matter jurisdiction to any foreign suitor wishing to sue its own local supplier, but unhappy with its own sover- its own local supplier, but unhappy with its own sover- eign's provisions for private antitrust enforcement, pro- eign's provisions for private antitrust enforcement, pro- vided that a different plaintiff had a cause of action vided that a different plaintiff had a cause of action against a different firm for injuries that were within against a different firm for injuries that were within

U. S. [other-than-import] commerce.

It does not seem

U. S. [other-than-import] commerce. It does not seem

excessively rigid to infer that Congress would not have excessively rigid to infer that Congress would not have

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intended that result." P. Areeda & H. Hovenkamp, An- intended that result." P. Areeda & H. Hovenkamp, An- titrust Law 273, pp. 51-52 (Supp. 2003). titrust Law 1273, pp. 51-52 (Supp. 2003).

We agree with the comment. We can find no convincing jus- We agree with the comment. We can find no convincing jus- tification for the extension of the Sherman Act's scope that tification for the extension of the Sherman Act's scope that it describes. it describes.

Respondents reply that many nations have adopted anti- Respondents reply that many nations have adopted anti- trust laws similar to our own, to the point where the practi- trust laws similar to our own, to the point where the practi- cal likelihood of interference with the relevant interests of cal likelihood of interference with the relevant interests of other nations is minimal. Leaving price fixing to the side, other nations is minimal. Leaving price fixing to the side, however, this Court has found to the contrary. See, e. g., however, this Court has found to the contrary. See, e. g., Hartford Fire, 509 U. S., at 797-799 (noting that the alleged Hartford Fire, 509 U. S., at 797-799 (noting that the alleged conduct in the London reinsurance market, while illegal conduct in the London reinsurance market, while illegal under United States antitrust laws, was assumed to be per- under United States antitrust laws, was assumed to be per- fectly consistent with British law and policy); see also, e. g., fectly consistent with British law and policy); see also, e. g., 2 W. Fugate, Foreign Commerce and the Antitrust Laws 2 W. Fugate, Foreign Commerce and the Antitrust Laws § 16.6 (5th ed. 1996) (noting differences between European § 16.6 (5th ed. 1996) (noting differences between European Union and United States law on vertical restraints).

Union and United States law on vertical restraints).

Regardless, even where nations agree about primary con- Regardless, even where nations agree about primary con- duct, say, price fixing, they disagree dramatically about ap- duct, say, price fixing, they disagree dramatically about ap- propriate remedies. The application, for example, of Amer- propriate remedies. The application, for example, of Amer- ican private treble-damages remedies to anticompetitive ican private treble-damages remedies to anticompetitive conduct taking place abroad has generated considerable con- conduct taking place abroad has generated considerable con- troversy. See, e. g., 2 ABA Section of Antitrust Law, Anti- troversy. See, e. g., 2 ABA Section of Antitrust Law, Anti- trust Law Developments 1208-1209 (5th ed. 2002). And sev- trust Law Developments 1208-1209 (5th ed. 2002). And sev- eral foreign nations have filed briefs here arguing that to eral foreign nations have filed briefs here arguing that to apply our remedies would unjustifiably permit their citizens apply our remedies would unjustifiably permit their citizens to bypass their own less generous remedial schemes, thereby to bypass their own less generous remedial schemes, thereby upsetting a balance of competing considerations that their upsetting a balance of competing considerations that their own domestic antitrust laws embody. E. g., Brief for Gov- own domestic antitrust laws embody. E. g., Brief for Gov- ernment of Federal Republic of Germany et al. as Amici Cu- ernment of Federal Republic of Germany et al. as Amici Cu- riae 2 (setting forth German interest "in seeing that German riae 2 (setting forth German interest "in seeing that German companies are not subject to the extraterritorial reach of the companies are not subject to the extraterritorial reach of the United States' antitrust laws by private foreign plaintiffs- United States' antitrust laws by private foreign plaintiffs— whose injuries were sustained in transactions entirely out- whose injuries were sustained in transactions entirely out- side United States commerce-seeking treble damages in side United States commerce—seeking treble damages in private lawsuits against German companies"); Brief for Gov- private lawsuits against German companies"); Brief for Gov-

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ernment of Canada as Amicus Curiae 14 ("treble damages ernment of Canada as Amicus Curiae 14 ("treble damages remedy would supersede" Canada's "national policy deci- remedy would supersede" Canada's "national policy deci- sion"); Brief for Government of Japan as Amicus Curiae 10 sion"); Brief for Government of Japan as Amicus Curiae 10 (finding "particularly troublesome" the potential "interfer- (finding "particularly troublesome" the potential "interfer- e[nce] with Japanese governmental regulation of the Japa- e[nce] with Japanese governmental regulation of the Japa- nese market"). nese market").

These briefs add that a decision permitting independently These briefs add that a decision permitting independently injured foreign plaintiffs to pursue private treble-damages injured foreign plaintiffs to pursue private treble-damages remedies would undermine foreign nations' own antitrust en- remedies would undermine foreign nations' own antitrust en- forcement policies by diminishing foreign firms' incentive to forcement policies by diminishing foreign firms' incentive to cooperate with antitrust authorities in return for prosecuto- cooperate with antitrust authorities in return for prosecuto- rial amnesty. Brief for Government of Federal Republic of rial amnesty. Brief for Government of Federal Republic of Germany et al. as Amici Curiae 28-30; Brief for Govern- Germany et al. as Amici Curiae 28-30; Brief for Govern- ment of Canada as Amicus Curiae 11-14. See also Brief for ment of Canada as Amicus Curiae 11-14. See also Brief for United States as Amicus Curiae 19-21 (arguing the same in United States as Amicus Curiae 19-21 (arguing the same in respect to American antitrust enforcement).

respect to American antitrust enforcement).

Respondents alternatively argue that comity does not de- Respondents alternatively argue that comity does not de- mand an interpretation of the FTAIA that would exclude mand an interpretation of the FTAIA that would exclude independent foreign injury cases across the board. Rather, independent foreign injury cases across the board. Rather, courts can take (and sometimes have taken) account of com- courts can take (and sometimes have taken) account of com- ity considerations case by case, abstaining where comity con- ity considerations case by case, abstaining where comity con- siderations so dictate. Cf., e. g., Hartford Fire, supra, at siderations so dictate. Cf., e. g., Hartford Fire, supra, at 797, n. 24; United States v. Nippon Paper Industries Co., 109 797, n. 24; United States v. Nippon Paper Industries Co., 109

F. 3d 1, 8 (CA1 1997); Mannington Mills, Inc. v. Congoleum

F. 3d 1, 8 (CA1 1997); Mannington Mills, Inc. v. Congoleum

Corp., 595 F. 2d 1287, 1294-1295 (CA3 1979).

Corp., 595 F. 2d 1287, 1294-1295 (CA3 1979).

In our view, however, this approach is too complex to In our view, however, this approach is too complex to prove workable. The Sherman Act covers many different prove workable. The Sherman Act covers many different kinds of anticompetitive agreements. Courts would have to kinds of anticompetitive agreements. Courts would have to examine how foreign law, compared with American law, examine how foreign law, compared with American law, treats not only price fixing but also, say, information-sharing treats not only price fixing but also, say, information-sharing agreements, patent-licensing price conditions, territorial agreements, patent-licensing price conditions, territorial product resale limitations, and various forms of joint ven- product resale limitations, and various forms of joint ven- ture, in respect to both primary conduct and remedy. The ture, in respect to both primary conduct and remedy. The legally and economically technical nature of that enterprise legally and economically technical nature of that enterprise means lengthier proceedings, appeals, and more proceed- means lengthier proceedings, appeals, and more proceed- ings-to the point where procedural costs and delays could ings—to the point where procedural costs and delays could

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themselves threaten interference with a foreign nation's themselves threaten interference with a foreign nation's ability to maintain the integrity of its own antitrust enforce- ability to maintain the integrity of its own antitrust enforce- ment system. Even in this relatively simple price-fixing ment system. Even in this relatively simple price-fixing case, for example, competing briefs tell us (1) that potential case, for example, competing briefs tell us (1) that potential treble-damages liability would help enforce widespread anti- treble-damages liability would help enforce widespread anti- price-fixing norms (through added deterrence) and (2) the price-fixing norms (through added deterrence) and (2) the opposite, namely, that such liability would hinder antitrust opposite, namely, that such liability would hinder antitrust enforcement (by reducing incentives to enter amnesty pro- enforcement (by reducing incentives to enter amnesty pro- grams). Compare, e. g., Brief for Certain Professors of Eco- grams). Compare, e. g., Brief for Certain Professors of Eco- nomics as Amici Curiae 2-4 with Brief for United States as nomics as Amici Curiae 2-4 with Brief for United States as Amicus Curiae 19-21. How could a court seriously inter- Amicus Curiae 19-21. How could a court seriously inter- ested in resolving so empirical a matter-a matter poten- ested in resolving so empirical a matter—a matter poten- tially related to impact on foreign interests-do so simply tially related to impact on foreign interests—do so simply and expeditiously?

and expeditiously?

We conclude that principles of prescriptive comity counsel We conclude that principles of prescriptive comity counsel against the Court of Appeals' interpretation of the FTAIA. against the Court of Appeals' interpretation of the FTAIA.

Where foreign anticompetitive conduct plays a significant Where foreign anticompetitive conduct plays a significant role and where foreign injury is independent of domestic ef- role and where foreign injury is independent of domestic ef- fects, Congress might have hoped that America's antitrust fects, Congress might have hoped that America's antitrust laws, so fundamental a component of our own economic sys- laws, so fundamental a component of our own economic sys- tem, would commend themselves to other nations as well. tem, would commend themselves to other nations as well.

But, if America's antitrust policies could not win their own But, if America's antitrust policies could not win their own way in the international marketplace for such ideas, Con- way in the international marketplace for such ideas, Con- gress, we must assume, would not have tried to impose them, gress, we must assume, would not have tried to impose them, in an act of legal imperialism, through legislative fiat. in an act of legal imperialism, through legislative fiat.

Second, the FTAIA's language and history suggest that Second, the FTAIA's language and history suggest that Congress designed the FTAIA to clarify, perhaps to limit, Congress designed the FTAIA to clarify, perhaps to limit, but not to expand in any significant way, the Sherman Act's but not to expand in any significant way, the Sherman Act's scope as applied to foreign commerce. See House Report, scope as applied to foreign commerce. See House Report, at 2-3. And we have found no significant indication that at at 2-3. And we have found no significant indication that at the time Congress wrote this statute courts would have the time Congress wrote this statute courts would have thought the Sherman Act applicable in these circumstances. thought the Sherman Act applicable in these circumstances.

The Solicitor General and petitioners tell us that they have The Solicitor General and petitioners tell us that they have found no case in which any court applied the Sherman Act found no case in which any court applied the Sherman Act to redress foreign injury in such circumstances. Tr. of Oral to redress foreign injury in such circumstances. Tr. of Oral Arg. 21; Brief for United States as Amicus Curiae 13; Brief Arg. 21; Brief for United States as Amicus Curiae 13; Brief

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for Petitioners 13; see also Den Norske, 241 F. 3d, at 429 for Petitioners 13; see also Den Norske, 241 F. 3d, at 429 ("[W]e have found no case in which jurisdiction was found in ("[W]e have found no case in which jurisdiction was found in a case like this-where a foreign plaintiff is injured in a for- a case like this—where a foreign plaintiff is injured in a for- eign market with no injuries arising from the anticompeti- eign market with no injuries arising from the anticompeti- tive effect on a United States market"). And respondents tive effect on a United States market"). And respondents themselves apparently conceded as much at a May 23, 2001, themselves apparently conceded as much at a May 23, 2001, hearing before the District Court below. 2001 WL 761360, hearing before the District Court below. 2001 WL 761360, at *4. at *4.

Nevertheless, respondents now have called to our atten- Nevertheless, respondents now have called to our atten- tion six cases, three decided by this Court and three decided tion six cases, three decided by this Court and three decided by lower courts.

In the first three cases the defendants by lower courts. In the first three cases the defendants included both American companies and foreign companies included both American companies and foreign companies jointly engaged in anticompetitive behavior having both for- jointly engaged in anticompetitive behavior having both for- eign and domestic effects. See Timken Roller Bearing Co. eign and domestic effects. See Timken Roller Bearing Co.

v. United States, 341 U. S. 593, 595 (1951) (agreements among

v. United States, 341 U. S. 593, 595 (195 1) (agreements among

American, British, and French corporations to eliminate American, British, and French corporations to eliminate competition in the manufacture and sale of antifriction bear- competition in the manufacture and sale of antifriction bear- ings in world, including United States, markets); United ings in world, including United States, markets); United States v. National Lead Co., 332 U. S. 319, 325-328 (1947) States v. National Lead Co., 332 U. S. 319, 325-328 (1947) (international cartels with American and foreign members, (international cartels with American and foreign members, restraining international commerce, including United States restraining international commerce, including United States commerce, in titanium pigments); United States v. American commerce, in titanium pigments); United States v. American Tobacco Co., 221 U. S. 106, 171-172 (1911) (American tobacco Tobacco Co., 221 U. S. 106, 171-172 (1911) (American tobacco corporations agreed in England with British company to di- corporations agreed in England with British company to di- vide world markets).

In all three cases the plaintiff sought vide world markets). In all three cases the plaintiff sought relief, including relief that might have helped to protect relief, including relief that might have helped to protect those injured abroad. those injured abroad.

In all three cases, however, the plaintiff was the Govern- In all three cases, however, the plaintiff was the Govern- ment of the United States. A Government plaintiff, unlike ment of the United States. A Government plaintiff, unlike a private plaintiff, must seek to obtain the relief necessary a private plaintiff, must seek to obtain the relief necessary to protect the public from further anticompetitive conduct to protect the public from further anticompetitive conduct and to redress anticompetitive harm. And a Government and to redress anticompetitive harm. And a Government plaintiff has legal authority broad enough to allow it to carry plaintiff has legal authority broad enough to allow it to carry out this mission.

15 U. S. C. § 25; see also, e. g., United

out this mission. 15 U. S. C. § 25; see also, e. g., United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 334 States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 334 (1961) ("[I]t is well settled that once the Government has (1961) ("[I]t is well settled that once the Government has

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successfully borne the considerable burden of establishing a successfully borne the considerable burden of establishing a violation of law, all doubts as to the remedy are to be re- violation of law, all doubts as to the remedy are to be re- solved in its favor"). Private plaintiffs, by way of contrast, solved in its favor"). Private plaintiffs, by way of contrast, are far less likely to be able to secure broad relief. See Cali- are far less likely to be able to secure broad relief. See Cali- fornia v. American Stores Co., 495 U. S. 271, 295 (1990) ("Our fornia v. American Stores Co., 495 U. S. 271, 295 (1990) ("Our conclusion that a district court has the power to order divest- conclusion that a district court has the power to order divest- iture in appropriate cases brought [by private plaintiffs] does iture in appropriate cases brought [by private plaintiffs] does not, of course, mean that such power should be exercised in not, of course, mean that such power should be exercised in every situation in which the Government would be entitled every situation in which the Government would be entitled to such relief"); 2 P. Areeda, H. Hovenkamp, & R. Blair, Anti- to such relief"); 2 P. Areeda, H. Hovenkamp, & R. Blair, Anti- trust Law 303d-303e, pp. 40-45 (2d ed. 2000) (distinguish- trust Law ¶¶ 303d-303e, pp. 40-45 (2d ed. 2000) (distinguish- ing between private and government suits in terms of avail- ing between private and government suits in terms of avail- ability, public interest motives, and remedial scope); Griffin, ability, public interest motives, and remedial scope); Griffin, Extraterritoriality in U. S. and EU Antitrust Enforcement, Extraterritoriality in U. S. and EU Antitrust Enforcement,

67 Antitrust L. J. 159, 194 (1999) ("[P]rivate plaintiffs often

67 Antitrust L. J. 159, 194 (1999) ("[P]rivate plaintiffs often

are unwilling to exercise the degree of self-restraint and con- are unwilling to exercise the degree of self-restraint and con- sideration of foreign governmental sensibilities generally ex- sideration of foreign governmental sensibilities generally ex- ercised by the U. S. Government"). This difference means ercised by the U. S. Government"). This difference means that the Government's ability, in these three cases, to obtain that the Government's ability, in these three cases, to obtain relief helpful to those injured abroad tells us little or nothing relief helpful to those injured abroad tells us little or nothing about whether this Court would have awarded similar relief about whether this Court would have awarded similar relief at the request of private plaintiffs. at the request of private plaintiffs.

Neither did the Court focus explicitly in its opinions on a Neither did the Court focus explicitly in its opinions on a claim that the remedies sought to cure only independently claim that the remedies sought to cure only independently caused foreign harm. Thus the three cases tell us even less caused foreign harm. Thus the three cases tell us even less about whether this Court then thought that foreign private about whether this Court then thought that foreign private plaintiffs could have obtained foreign relief based solely upon plaintiffs could have obtained foreign relief based solely upon such independently caused foreign injury. such independently caused foreign injury.

Respondents also refer to three lower court cases brought Respondents also refer to three lower court cases brought by private plaintiffs.

In the first, Industria Siciliana As- by private plaintiffs. In the first, Industria Siciliana As- falti, Bitumi, S. p. A. v. Exxon Research & Engineering Co., falti, Bitumi, S. p. A. v. Exxon Research & Engineering Co., No. 75 Civ. 5828-CSH, 1977 WL 1353 (SDNY, Jan. 18, 1977), No. 75 Civ. 5828-CSH, 1977 WL 1353 (SDNY, Jan. 18, 1977), a District Court permitted an Italian firm to proceed against a District Court permitted an Italian firm to proceed against an American firm with a Sherman Act claim based upon a an American firm with a Sherman Act claim based upon a purely foreign injury, i. e., an injury suffered in Italy. The purely foreign injury, i. e., an injury suffered in Italy. The court made clear, however, that the foreign injury was "inex- court made clear, however, that the foreign injury was "inex-

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tricably bound up with ...domestic restraints of trade," tricably bound up with ... domestic restraints of trade," and that the plaintiff "was injured ... by reason of an al- and that the plaintiff "was injured ... by reason of an al- leged restraint of our domestic trade," id., at *11, *12 (em- leged restraint of our domestic trade," id., at *11, *12 (em- phasis added), i. e., the foreign injury was dependent upon, phasis added), i. e., the foreign injury was dependent upon, not independent of, domestic harm. See Part VI, infra. not independent of, domestic harm. See Part VI, infra.

In the second case, Dominicus Americana Bohio v.

In the second case, Dominicus Americand Bohio v.

Gulf & Western Industries, Inc., 473 F. Supp. 680 (SDNY Gulf & Western Industries, Inc., 473 F. Supp. 680 (SDNY 1979), a District Court permitted Dominican and American 1979), a District Court permitted Dominican and American firms to proceed against a competing American firm and the firms to proceed against a competing American firm and the Dominican Tourist Information Center with a Sherman Act Dominican Tourist Information Center with a Sherman Act claim based upon injury apparently suffered in the Domini- claim based upon injury apparently suffered in the Domini- can Republic. The court, in finding the Sherman Act appli- can Republic. The court, in finding the Sherman Act appli- cable, weighed several different factors, including the partic- cable, weighed several different factors, including the partic- ipation of American firms in the unlawful conduct, the partly ipation of American firms in the unlawful conduct, the partly domestic nature of both conduct and harm (to American tour- domestic nature of both conduct and harm (to American tour- ists, a kind of "export"), and the fact that the domestic harm ists, a kind of "export"), and the fact that the domestic harm depended in part upon the foreign injury. Id., at 688. The* depended in part upon the foreign injury. Id., at 688. The* court did not separately analyze the legal problem before it court did not separately analyze the legal problem before it in terms of independently caused foreign injury. Its opinion in terms of independently caused foreign injury. Its opinion simply does not discuss the matter.

It consequently cannot simply does not discuss the matter. It consequently cannot be taken as significant support for application of the Sher- be taken as significant support for application of the Sher- man Act here. man Act here.

The third case, Hunt v. Mobil Oil Corp., 550 F. 2d 68, 72 The third case, Hunt v. Mobil Oil Corp., 550 F. 2d 68, 72 (CA2 1977), involved a claim by Hunt, an independent oil (CA2 1977), involved a claim by Hunt, an independent oil producer with reserves in Libya, that other major oil produc- producer with reserves in Libya, that other major oil produc- ers in Libya and the Persian Gulf (the "seven majors") had ers in Libya and the Persian Gulf (the "seven majors") had conspired in New York and elsewhere to make it more diffi- conspired in New York and elsewhere to make it more diffi- cult for Hunt to reach agreement with the Libyan Govern- cult for Hunt to reach agreement with the Libyan Govern- ment on production terms and thereby eliminate him as a ment on production terms and thereby eliminate him as a competitor. The case can be seen as involving a primarily competitor. The case can be seen as involving a primarily foreign conspiracy designed to bring about foreign injury in foreign conspiracy designed to bring about foreign injury in Libya. But, as in Dominicus, the court nowhere considered Libya. But, as in Dominicus, the court nowhere considered the problem of independently caused foreign harm. Rather, the problem of independently caused foreign harm. Rather, the case was about the "act of state" doctrine, and the sole the case was about the "act of state" doctrine, and the sole discussion of Sherman Act applicability-one brief para- discussion of Sherman Act applicability—one brief para- graph-refers to other matters. 550 F. 2d, at 72, and n. 2.

graph—refers to other matters. 550 F. 2d, at 72, and n. 2.

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We do not see how Congress could have taken this case as We do not see how Congress could have taken this case as significant support for the proposition that the Sherman Act significant support for the proposition that the Sherman Act applies in present circumstances. applies in present circumstances.

The upshot is that no pre-1982 case provides significant The upshot is that no pre-1982 case provides significant authority for application of the Sherman Act in the circum- authority for application of the Sherman Act in the circum- Indeed, a leading contemporane- stances we here assume. stances we here assume. Indeed, a leading contemporane- ous lower court case contains language suggesting the con- ous lower court case contains language suggesting the con- trary. See Timberlane Lumber Co. v. Bank of America, trary. See Timberlane Lumber Co. v. Bank of America,

N. T. & S. A., 549 F. 2d 597, 613 (CA9 1976) (insisting that

N. T. & S. A., 549 F. 2d 597, 613 (CA9 1976) (insisting that

the foreign conduct's domestic effect be "sufficiently large the foreign conduct's domestic effect be "sufficiently large to present a cognizable injury to the plaintiffs" (emphasis to present a cognizable injury to the plaintiffs" (emphasis added)). added)).

Taken together, these two sets of considerations, the one Taken together, these two sets of considerations, the one derived from comity and the other reflecting history, con- derived from comity and the other reflecting history, con- vince us that Congress would not have intended the FTAIA's vince us that Congress would not have intended the FTAIA's exception to bring independently caused foreign injury exception to bring independently caused foreign injury within the Sherman Act's reach. within the Sherman Act's reach.

Respondents point to several considerations that point the Respondents point to several considerations that point the other way. For one thing, the FTAIA's language speaks in other way. For one thing, the FTAIA's language speaks in terms of the Sherman Act's applicability to certain kinds of terms of the Sherman Act's applicability to certain kinds of conduct. The FTAIA says that the Sherman Act applies to conduct. The FTAIA says that the Sherman Act applies to foreign "conduct" with a certain kind of harmful domestic foreign "conduct" with a certain kind of harmful domestic effect. Why isn't that the end of the matter? How can the effect. Why isn't that the end of the matter? How can the Sherman Act both apply to the conduct when one person Sherman Act both apply to the conduct when one person sues but not apply to the same conduct when another person sues but not apply to the same conduct when another person sues? The question of who can or cannot sue is a matter for sues? The question of who can or cannot sue is a matter for other statutes (namely, the Clayton Act) to determine.

other statutes (namely, the Clayton Act) to determine.

Moreover, the exception says that it applies if the con- Moreover, the exception says that it applies if the con- duct's domestic effect gives rise to "a claim," not to "the duct's domestic effect gives rise to "a claim," not to "the plaintiff's claim" or "the claim at issue." 15 U. S. C. § 6a(2) plaintiff's claim" or "the claim at issue." 15 U. S. C. §6a(2) (emphases added). The alleged conduct here did have do- (emphases added). The alleged conduct here did have do- mestic effects, and those effects were harmful enough to give mestic effects, and those effects were harmful enough to give rise to "a" claim. Respondents concede that this claim is rise to "a" claim. Respondents concede that this claim is not their own claim; it is someone else's claim. But, linguis- not their own claim; it is someone else's claim. But, linguis-

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tically speaking, they say, that is beside the point. Nor did tically speaking, they say, that is beside the point. Nor did Congress place the relevant words "gives rise to a claim" in Congress place the relevant words "gives rise to a claim" in the FTAIA to suggest any geographical limitation; rather it the FTAIA to suggest any geographical limitation; rather it did so for a here neutral reason, namely, in order to make did so for a here neutral reason, namely, in order to make clear that the domestic effect must be an adverse (as opposed clear that the domestic effect must be an adverse (as opposed to a beneficial) effect. See House Report, at 11 (citing Na- to a beneficial) effect. See House Report, at 11 (citing Na- tional Bank of Canada v. Interbank Card Assn., 666 F. 2d tional Bank of Canada v. Interbank Card Assn., 666 F. 2d

Despite their linguistic logic, these arguments are not con- Despite their linguistic logic, these arguments are not con- vincing. Linguistically speaking, a statute can apply and vincing. Linguistically speaking; a statute can apply and not apply to the same conduct, depending upon other circum- not apply to the same conduct, depending upon other circum- stances; and those other circumstances may include the na- stances; and those other circumstances may include the na- ture of the lawsuit (or of the related underlying harm).

It ture of the lawsuit (or of the related underlying harm). It also makes linguistic sense to read the words "a claim" as if also makes linguistic sense to read the words "a claim" as if they refer to the "plaintiff's claim" or "the claim at issue." they refer to the "plaintiff's claim" or "the claim at issue."

At most, respondents' linguistic arguments might show At most, respondents' linguistic arguments might show that respondents' reading is the more natural reading of the that respondents' reading is the more natural reading of the statutory language. But those arguments do not show that statutory language. But those arguments do not show that we must accept that reading. And that is the critical point. we must accept that reading. And that is the critical point.

The considerations previously mentioned-those of comity The considerations previously mentioned—those of comity and history-make clear that the respondents' reading is not and history—make clear that the respondents' reading is not consistent with the FTAIA's basic intent.

If the statute's consistent with the FTAIA's basic intent. If the statute's language reasonably permits an interpretation consistent language reasonably permits an interpretation consistent with that intent, we should adopt it. And, for the reasons with that intent, we should adopt it. And, for the reasons stated, we believe that the statute's language permits the stated, we believe that the statute's language permits the reading that we give it. reading that we give it.

Finally, respondents point to policy considerations, namely, Finally, respondents point to policy considerations, namely, that application of the Sherman Act in present circumstances that application of the Sherman Act in present circumstances will (through increased deterrence) help protect Americans will (through increased deterrence) help protect Americans against foreign-caused anticompetitive injury. Petitioners against foreign-caused anticompetitive injury. Petitioners and supporting enforcement-agency amici, however, have and supporting enforcement-agency amici, however, have made important experience-backed arguments (based upon made important experience-backed arguments (based upon amnesty-seeking incentives) to the contrary. We cannot say amnesty-seeking incentives) to the contrary. We cannot say whether, on balance, respondents' side of this empirically whether, on balance, respondents' side of this empirically based argument or the enforcement agencies' side is correct.

based argument or the enforcement agencies' side is correct.

But we can say that the answer to the dispute is neither But we can say that the answer to the dispute is neither

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clear enough, nor of such likely empirical significance, that it clear enough, nor of such likely empirical significance, that it could overcome the considerations we have previously dis- could overcome the considerations we have previously dis- cussed and change our conclusion. cussed and change our conclusion.

For these reasons, we conclude that petitioners' reading of For these reasons, we conclude that petitioners' reading of the statute's language is correct. That reading furthers the the statute's language is correct. That reading furthers the statute's basic purposes, it properly reflects considerations statute's basic purposes, it properly reflects considerations of comity, and it is consistent with Sherman Act history. of comity, and it is consistent with Sherman Act history.

We have assumed that the anticompetitive conduct here We have assumed that the anticompetitive conduct here independently caused foreign injury; that is, the conduct's independently caused foreign injury; that is, the conduct's domestic effects did not help to bring about that foreign in- domestic effects did not help to bring about that foreign in- jury. Respondents argue, in the alternative, that the for- jury. Respondents argue, in the alternative, that the for- eign injury was not independent. Rather, they say, the anti- eign injury was not independent. Rather, they say, the anti- competitive conduct's domestic effects were linked to that competitive conduct's domestic effects were linked to that foreign harm. Respondents contend that, because vitamins foreign harm. Respondents contend that, because vitamins are fungible and readily transportable, without an adverse are fungible and readily transportable, without an adverse domestic effect (i. e., higher prices in the United States), the domestic effect (i. e., higher prices in the United States), the sellers could not have maintained their international price- sellers could not have maintained their international price- fixing arrangement and respondents would not have suffered fixing arrangement and respondents would not have suffered their foreign injury. They add that this "but for" condition their foreign injury. They add that this "but for" condition is sufficient to bring the price-fixing conduct within the scope is sufficient to bring the price-fixing conduct within the scope of the FTAIA's exception.

of the FTAIA's exception.

The Court of Appeals, however, did not address this argu- The Court of Appeals, however, did not address this argu- ment, 315 F. 3d, at 341, and, for that reason, neither shall we. ment, 315 F. 3d, at 341, and, for that reason, neither shall we.

Respondents remain free to ask the Court of Appeals to Respondents remain free to ask the Court of Appeals to consider the claim. The Court of Appeals may determine consider the claim. The Court of Appeals may determine whether respondents properly preserved the argument, and, whether respondents properly preserved the argument, and, if so, it may consider it and decide the related claim. if so, it may consider it and decide the related claim.

For these reasons, the judgment of the Court of Appeals For these reasons, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings is vacated, and the case is remanded for further proceedings consistent with this opinion. consistent with this opinion.

It is so ordered.

It is so ordered.

JUSTICE O'CONNOR took no part in the consideration or JUSTICE O'CONNOR took no part in the consideration or

decision of this case. decision of this case.

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SCALIA, J., concurring in judgment SCALIA, J., concurring in judgment

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, con- JUSTICE SCALIA, with whom JUSTICE THOMAS joins, con-

curring in the judgment. curring in the judgment.

I concur in the judgment of the Court because the lan- I concur in the judgment of the Court because the lan- guage of the statute is readily susceptible of the interpreta- guage of the statute is readily susceptible of the interpreta- tion the Court provides and because only that interpretation tion the Court provides and because only that interpretation is consistent with the principle that statutes should be read is consistent with the principle that statutes should be read in accord with the customary deference to the application of in accord with the customary deference to the application of foreign countries' laws within their own territories. foreign countries' laws within their own territories.