Keeping the Door Ajar for Foreign Plaintiffs in Global Cartel Cases after Empagran

In many ways, the Supreme Court’s opinion of F. Hoffmann-LaRoche Ltd. V. Empagran S.A. raised more questions than it answered. Growing out of the massive international vitamins cartel uncovered in the 1990s, Empagran presented a scenario in which all parties were foreign and all conduct occurred abroad. Although it is “well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States,” Empagran presented the Court with the first truly foreign antitrust case. It involved not only foreign conduct, but also foreign plaintiffs complaining of injuries suffered abroad at the hands of foreign defendants. The case therefore appeared to present thorny questions about the proper construction of the Foreign Trade Antitrust Improvements Act of 1982 (“FTAIA”) and the extent of the Sherman Act’s extraterritorial application.