Standing for Extraterritoriality: Defining the Empagran Exception

Efforts by private plaintiffs to enforce the U.S. antitrust laws extraterritorially have become an enormous industry. A reflection of the challenges facing federal courts in this global age, F. Hoffman-LaRoche Ltd. v. Empagran S.A. (Empagran) held the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) precluded the assertion by U.S. courts of jurisdiction over claims by foreign plaintiffs alleging harm felt in wholly foreign commerce. Empagran left an exception that undermines its general rule. Plaintiffs able sufficiently to show “the anticompetitive conduct’s domestic effects were linked to their foreign harm” are excepted from the preclusion. This is the “Empagran exception.” The article is the first to propose a workable and consistent approach for applying the Empagran exception. The classical prudential antitrust standing analysis is readily imported into the extraterritoriality framework. Modified for extraterritorial application, the standing analysis includes consideration of comity and “inverse deterrence” -- a twist on the under-deterrence rationale. The standing analysis permits courts flexibility to adjust for those and other factors perhaps not yet recognized. As the question how to define the Empagran exception works its way through the courts, the approach outlined here promises superior and consistent decisions

Review Essay: Using All Available Information

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting them to produce “consequences” consistent with those purposes, is preferable to Justice Scalia’s textualism. I argue that Justice Breyer’s philosophy relies on jurists to approach the interpretive process carefully and produces results more consistent with democratic objectives. Nonetheless, I argue Justice Breyer came up short by failing to articulate an interpretive method for lawyers and judges to follow, while Justice Scalia purports to offer a clear method for application. I also propose that it may be possible to synthesize the two seemingly irreconcileable interpretive philosophies into a single approach by concentrating on the range of information allowed to be considered in the search for statutory or constitutional “purpose.

Worlds Colliding: Competition Policy and Bankruptcy Asset Sales

Modern business bankruptcies commonly involve mergers and acquisitions pursued as “fire sales.” The bankruptcy forum and the unique incentives bankruptcy creates allow those acquisitions to take place with reduced constituent involvement and regulatory oversight. Those fire sale transactions may present antitrust concerns where they lead to undue concentration in the relevant marketplace. This Article studies the poorly explored tension between bankruptcy law, which favors mergers and acquisitions as value maximizing propositions and creates opportunity for fire sales, and antitrust law, which disfavors combinations leading to undue concentrations of economic power. The tension is substantial and manifests both as a matter of substantive law and as a matter of procedures used to implement that law. This paper reveals conflicts between bankruptcy and antitrust and argues that the optimal resolution of those conflicts is to correct for the current subordination of antitrust goals to bankruptcy policies. The Article then offers suggestions for reform