Empagran Walkthrough
One of the reasons for the continuing debate about Hoffman-La Roche v. Empagran is that the Supreme Court’s decision doesn’t spell out critical steps in the flow of its argument. Particularly confusing is how the court suddenly introduces the distinction between independent and dependent foreign harm. That distinction only makes sense if §(2) requires that domestic harm give rise to the foreign plaintiff’s claim, but not that the foreign plaintiff must have suffered domestic harm directly. Rather, it is sufficient for the foreign plaintiff to have suffered foreign harm, if the foreign harm is in some way dependent on domestic harm. In that instance, it makes sense to say the the plaintiff indirectly suffered domestic harm. Following the great tradition of text-adventure game walkthroughs, here is a chart that maps out the court’s argument in Empagran in a (hopefully somewhat more) logical fashion, while tying it as closely as possible to the language of the decision.
Note that the walkthrough does not contain any discussion of the merits and policy arguments, the goal is merely to identify the place of each argument in the process of the court’s interpretation of the FTAIA.
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January 23rd, 2006 at 3:29 pm
[...] Here is a graphical Empagran walkthrough. [...]
January 26th, 2006 at 2:30 pm
[...] Based on the pleadings and the standard set out in Empagran, the Second Circuit’s decision is hardly surprising. Snidao suffered foreign harm, when he paid inflated exchange fees in Europe. Others suffered domestic harm, when they paid inflated exchange fees in the U.S. There are two ways in which a plaintiff can meet the requirement that domestic harm give rise to his or her claims: (i) the plaintiff, in addition to having suffered foreign harm, also suffered domestic harm; and (ii) the domestic harm (to others) caused the plaintiff’s foreign harm (i.e., foreign harm is dependent on domestic harm). Neither alternative was available to Sniado. He hadn’t exchanged money in the U.S. and thus did not suffer direct domestic injury. And he did not allege sufficient facts upon which the court could have found that higher rates in the U.S. had somehow caused (or “helped to bring about”) higher rates in Europe. You can also bookmark this on del.icio.us or check the cosmos [...]
February 4th, 2006 at 1:40 pm
[...] In order to bring a claim for treble damages in U.S. courts, a foreign plaintiff, having suffered antitrust injury abroad (for example, higher prices from a cartel), must show, among other things, that the defendant’s conduct had a “direct, substantial, and reasonably foreseeable effect” on U.S. commerce, §(1) FTAIA, and that “the domestic effect gave rise to, that is, caused, the plaintiff’s claim,” §(2) FTAIA. If nothing else, that much can be derived from the Supreme Court’s decision in Hoffman-La Roche v. Empagran. Since Empagran, a number of related cases have reached the lower courts, Sniado v. Bank Austria, MM Global Services v. The Dow Chemical Company, and In re Monosodium Glutamate Antitrust Litigation. Each of these cases takes a slightly different look at the the causal relationship between domestic harm and foreign harm that is required by §(2) FTAIA. The chart below illustrates four variants of that relationship: [...]