The Comity of Empagran: The Supreme Court Decides that Foreign Competition Regulation Limits American Antitrust Jurisdiction over International Cartels

Abstract

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act ( FTAIA ) has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. Recently, the U.S. Supreme Court ruled in E Hoffmann-La Roche, Ltd. v. Empagran S.A. ( Empagran ) that the doctrine of comity among nations limited the reach of U.S. anti-trust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This article argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by American businesses in anticompetitive conduct overseas. Part III narrates the factual and procedural history of Empagran. Part IV contrasts the Fifth and Second Circuits\u27 interpretations of the FTAIA. In Part V, the Recent Development analyzes the Supreme Court\u27s ruling in Empagran, and Part VI outlines the procedurally questionable application of the comity among nations doctrine