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WASHINGTON — Questions about the global reach of U.S. antitrust law were at the root of an argument heard Monday by the U.S. Supreme Court.

The justices expressed concerns about overstepping the intended boundaries of U.S. antitrust laws and the possibility of decreased antitrust prosecution abroad if U.S. laws were interpreted to allow foreigners the right to bring antitrust actions in U.S. courts.

The case at hand — now known as F. Hoffmann-LaRoche Ltd. v. Empagran S.A., 03-724 — was filed by Cohen, Milstein, Hausfeld & Toll lawyers on behalf of foreign vitamin buyers allegedly harmed by a cartel of multinational companies. Cohen, Milstein’s clients sued under the 1982 Foreign Trade Antitrust Improvement Act, which they say allows foreign companies to bring antitrust suits in U.S. courts against multinational corporations.

The D.C. Circuit U.S. Court of Appeals last fall allowed the suit against the alleged vitamin cartel to proceed, writing that the conduct of the vitamin cartels “injures both foreign plaintiffs and domestic plaintiffs, and it is clearly the conduct that Congress intends to reach with our antitrust laws.”

The question of U.S. jurisdiction over antitrust cases has split the federal appeals courts, with the D.C. Circuit and the Second Circuit U.S. Court of Appeals allowing foreign complaints to proceed, and the U.S. Fifth Circuit putting on the brakes.

Justice Stephen Breyer, the Supreme Court’s leader on antitrust issues, asked if allowing foreign plaintiffs to sue in U.S. courts over transactions that occurred overseas amounts to “judicial imperialism,” noting that, in many other countries, aspects of U.S. antitrust law — including liberal rules on damages, jury trials, discovery and class action — are highly controversial.

Breyer expressed the most explicit skepticism about allowing foreign plaintiffs to bring suits in U.S. courts based on transactions that did not occur here.

The justices had few questions for R. Hewitt Pate, the Department of Justice assistant attorney general for antitrust, who shared argument time with Stephen Shapiro, a Mayer, Brown, Rowe & Maw attorney arguing on behalf of the alleged cartels. Both Pate and Shapiro argued that foreign-brought antitrust suits should be barred in the United States, unless there is evidence that the alleged antitrust violation had an impact in the United States.

Pate said that opening the door to foreign-brought antitrust actions in U.S. courts could hurt antitrust enforcement here and abroad. For example, if a company involved in an illegal cartel blows the whistle to an enforcement agency, it could very well be given immunity from criminal prosecution. But that very disclosure could then be used by individuals or companies claiming to have been hurt by the cartel to bring suit in the United States, where the whistle-blowing company could face treble damages if found guilty. The possible effect: The company remains silent, and the illegal activity is never disclosed.

Justice Antonin Scalia suggested that although more than 100 countries have antitrust regimes, there are many countries that have not developed antitrust laws of their own. His question: “What about the majority of nations without antitrust laws? Might they be eager for us to do the job for them?”

In response to Justice Ruth Bader Ginsburg’s questions about comity, or recognition by courts in different jurisdictions of the laws and judicial decisions of another, Thomas Goldstein, on behalf of those challenging the purported cartels, offered an unusual possible solution. To avoid friction with other jurisdictions, Goldstein suggested, the lower courts could limit the remedies available to foreign plaintiffs to those allowed in their home courts. In other words, if a plaintiff’s home country allows only single damages, Goldstein suggested, the U.S. court could set a cap of single damages if that plaintiff prevails.

Lily Henning is a reporter with Legal Times , a Recorder affiliate based in Washington, D.C.

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