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In a unanimous ruling last week, the Supreme Court declared that foreign plaintiffs cannot sue in U.S. courts for antitrust violations outside the United States — but left open one line of argument that could make potential plaintiffs happy. In its ruling in F. Hoffman-LaRoche Ltd. v. Empagran S.A., No. 03-724, the Court held that the plaintiffs in the case, a group of overseas vitamin buyers, could not bring a class action against a price-fixing conspiracy by an international cartel of vitamin manufacturers and distributors. But, the Court concluded, those vitamin purchasers can still ask the U.S. Court of Appeals for the D.C. Circuit to consider their argument that global prices are interdependent. That could have wide-ranging implications beyond the case. “There’s still an important question unanswered,” says James Atwood, who heads Covington & Burling’s antitrust practice and was not involved in the case. “This leaves a pretty open door to allow relitigation of a lot of these claims and those beyond the vitamins suit.” On remand, the appeals court can consider the plaintiffs’ argument that foreign prices for vitamins, and specifically those set by the cartel members, were impacted by prices in the United States. The justices, in an opinion written by Justice Stephen Breyer, overturned the lower court’s decision that allowed the group of bulk vitamin buyers in the Ukraine, Australia, Ecuador, and Panama to bring private lawsuits in U.S. courts against an international cartel, which paid fines to antitrust regulators in the United States and Europe. At the center of the case was the interpretation of a 1982 law amending the Sherman Act, the basic article of U.S. antitrust law. The Foreign Trade Antitrust Improvement Act generally limits the application of U.S. antitrust law when foreign trade or commerce is concerned. However, the law also contains what many lawyers say is an unclear clause that says conduct that has a “direct, substantial, and reasonably foreseeable effect” on domestic commerce does fall under the scope of the Sherman Act. Plaintiffs’ counsel Paul Gallagher, a D.C. partner with Cohen, Milstein, Hausfeld & Toll, agrees that the decision will be applicable in cases other than the vitamin litigation. “I think the Court did not want to close the door on that type of argument,” Gallagher says. Jones Day D.C. partner John Majoras, a lawyer for one of the vitamin cartelists, Rhone-Poulenc SA (now Aventis SA), said he could not comment on the decision.

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