F. HOFFMANN-La ROCHE LTD et al. v. EMPAGRAN S. A. et al.

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155 OCTOBER TERM, 2003
Syllabus
F. HOFFMANN-La ROCHE LTD et al. v. EMPAGRAN
S. A. et al.
certiorari to the united states court of appeals for
the district of columbia circuit
No. 03–724. Argued April 26, 2004—Decided June 14, 2004
The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA or Act)
provides that the Sherman Act “shall not apply to conduct involving
trade or commerce . . . with foreign nations,” 15 U. S. C. § 6a, but creates
exceptions for conduct that significantly harms imports, domestic com-
merce, or American exporters. In this case, vitamin purchasers filed a
class action alleging that vitamin manufacturers and distributors had
engaged in a price-fixing conspiracy, raising vitamin prices in the United
States and foreign countries, in violation of the Sherman Act. As rele-
vant here, defendants (petitioners) moved to dismiss the suit as to the
foreign purchasers (respondents), foreign companies located abroad,
who had purchased vitamins only outside United States commerce. In
dismissing respondents’ claims, the District Court applied the FTAIA
and found none of its exceptions applicable. The Court of Appeals re-
versed, concluding that the FTAIA’s exclusionary rule applied, but so
did its exception for conduct that has a “direct, substantial and reason-
ably foreseeable effect” on domestic commerce that “gives rise to a
[Sherman Act] claim,” §§ 6a(1)(A), (2). Assuming that the foreign ef-
fect, i. e., higher foreign prices, was independent of the domestic effect,
i. e., higher domestic prices, the court nonetheless concluded that the
Act’s text, legislative history, and policy goal of deterring harmful
price-fixing activity made the lack of connection between the two ef-
fects inconsequential.
Held: Where the price-fixing conduct significantly and adversely affects
both customers outside and within the United States, but the adverse
foreign effect is independent of any adverse domestic effect, the FTAIA
exception does not apply, and thus, neither does the Sherman Act, to a
claim based solely on the foreign effect. Pp. 161–175.
(a) Respondents’ threshold argument that the transactions fall out-
side the FTAIA because its general exclusionary rule applies only to
conduct involving exports is rejected. The House Judiciary Committee
changed the bill’s original language from “export trade or export com-
merce,” H. R. 5235, to “trade or commerce (other than import trade or
import commerce)” deliberately to include commerce that did not in-
volve American exports but was wholly foreign. Pp. 162–163.

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156 F. HOFFMANN-La ROCHE LTD v. EMPAGRAN S. A.
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(b) The FTAIA exception does not apply here for two reasons. First,
this Court ordinarily construes ambiguous statutes to avoid unreason-
able interference with other nations’ sovereign authority. This rule of
construction reflects customary international law principles and cau-
tions courts to assume that legislators take account of other nations’
legitimate sovereign interests when writing American laws. It thereby
helps the potentially conflicting laws of different nations work together
in harmony. While applying America’s antitrust laws to foreign con-
duct can interfere with a foreign nation’s ability to regulate its own
commercial affairs, courts have long held such application nonetheless
reasonable, and hence consistent with prescriptive comity principles, in-
sofar as the laws reflect a legislative effort to redress domestic antitrust
injury caused by foreign anticompetitive conduct. However, it is not
reasonable to apply American laws to foreign conduct insofar as that
conduct causes independent foreign harm that alone gives rise to a
plaintiff ’s claim. The risk of interference is the same, but the justifica-
tion for the interference seems insubstantial. While some of the anti-
competitive conduct alleged here took place in America, the higher for-
eign prices are not the consequence of any domestic anticompetitive
conduct sought to be forbidden by Congress, which rather wanted to
release domestic (and foreign) anticompetitive conduct from Sherman
Act constraint when that conduct causes foreign harm. Contrary to
respondents’ claim, the comity concerns remain real as other nations
have not in all areas adopted antitrust laws similar to this country’s
and, in any event, disagree dramatically about appropriate remedies.
Respondents’ alternative argument that case-by-case comity analysis is
preferable to an across the board exclusion of foreign injury cases is too
complex to prove workable. Second, the FTAIA’s language and history
suggest that Congress designed the Act to clarify, perhaps to limit, but
not to expand, the Sherman Act’s scope as applied to foreign commerce.
There is no significant indication that at the time Congress wrote the
FTAIA courts would have thought the Sherman Act applicable in these
circumstances, nor do the six cases on which respondents rely warrant
a different conclusion. Pp. 163–173.
(c) Respondents’ additional linguistic arguments might show a natural
reading of the statute, but the comity and history considerations pre-
viously discussed make clear that respondents’ reading is not consistent
with the FTAIA’s basic intent. Their deterrence-based policy argu-
ment is also unavailing in light of the contrary arguments by the anti-
trust enforcement agencies. Pp. 173–175.
(d) On remand, the Court of Appeals may consider whether respond-
ents properly preserved their alternative argument that the foreign

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157 Cite as: 542 U. S. 155 (2004)
Syllabus
injury here was not in fact independent of the domestic effects; and, if
so, it may consider and decide the related claim. P. 175.
315 F. 3d 338, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Kennedy, Souter, and Ginsburg, JJ., joined.
Scalia, J., filed an opinion concurring in the judgment, in which Thomas,
J., joined, post, p. 176. O’Connor, J., took no part in the consideration or
decision of the case.
Stephen M. Shapiro argued the cause for petitioners.
With him on the briefs were Arthur F. Golden, Tyrone C.
Fahner, Andrew S. Marovitz, Jeffrey W. Sarles, Lawrence
Portnoy, Charles S. Duggan, John M. Majoras, Daniel H.
Bromberg, Kenneth Prince, Lawrence Byrne, Bruce L.
Montgomery, D. Stuart Meiklejohn, Michael L. Denger, Mi-
guel A. Estrada, Laurence T. Sorkin, Roy L. Regozin, Don-
ald I. Baker, Donald C. Klawiter, Peter E. Halle, James R.
Weiss, Jim J. Shoemake, Thomas M. Mueller, Michael O.
Ware, Aileen Meyer, Sutton Keany, Kenneth W. Starr,
Moses Silverman, Aidan Synnott, Mark Riera, Kevin R.
Sullivan, Peter M. Todaro, William J. Kolasky, and Ed-
ward DuMont.
Assistant Attorney General Pate argued the cause for the
United States as amicus curiae urging reversal. With him
on the brief were Acting Solicitor General Kneedler, Deputy
Assistant Attorney General Delrahim, Lisa S. Blatt, Robert
B. Nicholson, Steven J. Mintz, William H. Taft IV, and John
D. Graubert.
Thomas C. Goldstein argued the cause for respondents.
With him on the brief were Amy Howe, Michael H. Gottes-
man, Michael D. Hausfeld, Paul T. Gallagher, and Brian
A. Ratner.*
*Briefs of amici curiae urging reversal were filed for the Government
of Canada by Homer E. Moyer, Jr., Michael T. Brady, and Alan I. Horo-
witz; for the Government of the Federal Republic of Germany et al. by
David C. Frederick; for the Government of the United Kingdom of Great
Britain and Northern Ireland et al. by Ernest Gellhorn and Ann

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158 F. HOFFMANN-La ROCHE LTD v. EMPAGRAN S. A.
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
The Foreign Trade Antitrust Improvements Act of 1982
(FTAIA) excludes from the Sherman Act’s reach much anti-
competitive conduct that causes only foreign injury. It does
so by setting forth a general rule stating that the Sherman
Act “shall not apply to conduct involving trade or commerce
. . . with foreign nations.” 96 Stat. 1246, 15 U. S. C. § 6a. It
then creates exceptions to the general rule, applicable where
(roughly speaking) that conduct significantly harms imports,
domestic commerce, or American exporters.
We here focus upon anticompetitive price-fixing activity
that is in significant part foreign, that causes some domestic
antitrust injury, and that independently causes separate for-
eign injury. We ask two questions about the price-fixing
conduct and the foreign injury that it causes. First, does
that conduct fall within the FTAIA’s general rule excluding
the Sherman Act’s application? That is to say, does the
price-fixing activity constitute “conduct involving trade or
commerce . . . with foreign nations”? We conclude that it
does.
Weymouth; for the Government of Japan by Douglas E. Rosenthal; for
the Business Roundtable by Janet L. McDavid, Jonathan S. Franklin,
and William H. Johnson; for the Chamber of Commerce of the United
States et al. by Roy T. Englert, Jr., Donald J. Russell, Max Huffman,
and Robin S. Conrad; for Bank Austria AG et al. by Carter G. Phillips,
Virginia A. Seitz, John H. Shenefield, Jonathan M. Rich, Robert A. Horo-
witz, Richard A. Martin, Richard S. Goldstein, Jeffrey Barist, Charles
Westland, and Richard L. Mattiaccio; and for the International Chamber
of Commerce by A. Paul Victor and Steven Alan Reiss.
Briefs of amici curiae urging affirmance were filed for the Committee
to Support the Antitrust Laws et al. by Charles J. Cooper and David H.
Thompson; for Public Citizen by Amanda Frost and Brian Wolfman; for
Harry First et al. by Jonathan S. Massey, Lynn Lincoln Sarko, Mark A.
Griffin, Edgar D. Gankendorff, and Henry S. Provosty; for Ralf Michaels
et al. by Arthur R. Miller; and for Joseph E. Stiglitz et al. by Erik S.
Jaffe and Mary Boies.
Briefs of amici curiae were filed for Certain Professors of Economics
by James vanR. Springer and James R. Martin; and for Darren Bush et
al. by Peter J. Rubin.

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Second, we ask whether the conduct nonetheless falls
within a domestic-injury exception to the general rule, an
exception that applies (and makes the Sherman Act nonethe-
less applicable) where the conduct (1) has a “direct, substan-
tial, and reasonably foreseeable effect” on domestic com-
merce, and (2) “such effect gives rise to a [Sherman Act]
claim.” §§ 6a(1)(A), (2). We conclude that the exception
does not apply where the plaintiff ’s claim rests solely on the
independent foreign harm.
To clarify: The issue before us concerns (1) significant for-
eign anticompetitive conduct with (2) an adverse domestic
effect and (3) an independent foreign effect giving rise to the
claim. In more concrete terms, this case involves vitamin
sellers around the world that agreed to fix prices, leading to
higher vitamin prices in the United States and independ-
ently leading to higher vitamin prices in other countries such
as Ecuador. We conclude that, in this scenario, a purchaser
in the United States could bring a Sherman Act claim under
the FTAIA based on domestic injury, but a purchaser in Ec-
uador could not bring a Sherman Act claim based on for-
eign harm.
I
The plaintiffs in this case originally filed a class-action suit
on behalf of foreign and domestic purchasers of vitamins
under, inter alia, § 1 of the Sherman Act, 26 Stat. 209, as
amended, 15 U. S. C. § 1, and §§ 4 and 16 of the Clayton Act,
38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26. Their
complaint alleged that petitioners, foreign and domestic vita-
min manufacturers and distributors, had engaged in a price-
fixing conspiracy, raising the price of vitamin products to
customers in the United States and to customers in foreign
countries.
As relevant here, petitioners moved to dismiss the suit as
to the foreign purchasers (the respondents here), five foreign
vitamin distributors located in Ukraine, Australia, Ecuador,
and Panama, each of which bought vitamins from peti-

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tioners for delivery outside the United States. No. Civ.
001686TFH, 2001 WL 761360, *4 (D. D. C., June 7, 2001) (de-
scribing the relevant transactions as “wholly foreign”). Re-
spondents have never asserted that they purchased any vita-
mins in the United States or in transactions in United States
commerce, and the question presented assumes that the rel-
evant “transactions occurr[ed] entirely outside U. S. com-
merce,” Pet. for Cert. (i). The District Court dismissed
their claims. 2001 WL 761360, at *4. It applied the FTAIA
and found none of the exceptions applicable. Id., at *3–*4.
Thereafter, the domestic purchasers transferred their claims
to another pending suit and did not take part in the subse-
quent appeal. 315 F. 3d 338, 343 (CADC 2003).
A divided panel of the Court of Appeals reversed. 315
F. 3d 338. The panel concluded that the FTAIA’s general
exclusionary rule applied to the case, but that its domestic-
injury exception also applied. It basically read the plain-
tiffs’ complaint to allege that the vitamin manufacturers’
price-fixing conspiracy (1) had “a direct, substantial, and rea-
sonably foreseeable effect” on ordinary domestic trade or
commerce, i. e., the conspiracy brought about higher domes-
tic vitamin prices, and (2) “such effect” gave “rise to a [Sher-
man Act] claim,” i. e., an injured domestic customer could
have brought a Sherman Act suit, 15 U. S. C. §§ 6a(1), (2).
Those allegations, the court held, are sufficient to meet the
exception’s requirements. 315 F. 3d, at 341.
The court assumed that the foreign effect, i. e., higher
prices in Ukraine, Panama, Australia, and Ecuador, was inde-
pendent of the domestic effect, i. e., higher domestic prices.
Ibid. But it concluded that, in light of the FTAIA’s text,
legislative history, and the policy goal of deterring harmful
price-fixing activity, this lack of connection does not matter.
Ibid. The District of Columbia Circuit denied rehearing en
banc by a 4-to-3 vote. App. to Pet. for Cert. 44a.
We granted certiorari to resolve a split among the Courts
of Appeals about the exception’s application. Compare Den

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Norske Stats Oljeselskap As v. HeereMac Vof, 241 F. 3d 420,
427 (CA5 2001) (exception does not apply where foreign in-
jury independent of domestic harm), with Kruman v. Chris-
tie’s Int’l PLC, 284 F. 3d 384, 400 (CA2 2002) (exception does
apply even where foreign injury independent); 315 F. 3d, at
341 (similar).
II
The FTAIA seeks to make clear to American exporters
(and to firms doing business abroad) that the Sherman Act
does not prevent them from entering into business arrange-
ments (say, joint-selling arrangements), however anticompet-
itive, as long as those arrangements adversely affect only
foreign markets. See H. R. Rep. No. 97–686, pp. 1–3, 9–10
(1982) (hereinafter House Report). It does so by removing
from the Sherman Act’s reach, (1) export activities and
(2) other commercial activities taking place abroad, unless
those activities adversely affect domestic commerce, imports
to the United States, or exporting activities of one engaged
in such activities within the United States.
The FTAIA says:
“Sections 1 to 7 of this title [the Sherman Act] shall
not apply to conduct involving trade or commerce (other
than import trade or import commerce) with foreign na-
tions unless—
“(1) such conduct has a direct, substantial, and rea-
sonably foreseeable effect—
“(A) on trade or commerce which is not trade or
commerce with foreign nations [i. e., domestic trade or
commerce], or on import trade or import commerce with
foreign nations; or
“(B) on export trade or export commerce with foreign
nations, of a person engaged in such trade or commerce
in the United States [i. e., on an American export com-
petitor]; and

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“(2) such effect gives rise to a claim under the pro-
visions of sections 1 to 7 of this title, other than this
section.
“If sections 1 to 7 of this title apply to such conduct
only because of the operation of paragraph (1)(B), then
sections 1 to 7 of this title shall apply to such conduct
only for injury to export business in the United States.”
15 U. S. C. § 6a.
This technical language initially lays down a general rule
placing all (nonimport) activity involving foreign commerce
outside the Sherman Act’s reach. It then brings such con-
duct back within the Sherman Act’s reach provided that the
conduct both (1) sufficiently affects American commerce, i. e.,
it has a “direct, substantial, and reasonably foreseeable ef-
fect” on American domestic, import, or (certain) export com-
merce, and (2) has an effect of a kind that antitrust law
considers harmful, i. e., the “effect” must “giv[e] rise to a
[Sherman Act] claim.” §§ 6a(1), (2).
We ask here how this language applies to price-fixing ac-
tivity that is in significant part foreign, that has the requisite
domestic effect, and that also has independent foreign effects
giving rise to the plaintiff ’s claim.
III
Respondents make a threshold argument. They say that
the transactions here at issue fall outside the FTAIA because
the FTAIA’s general exclusionary rule applies only to con-
duct involving exports. The rule says that the Sherman Act
“shall not apply to conduct involving trade or commerce
(other than import trade or import commerce) with foreign
nations.” § 6a (emphasis added). The word “with” means
between the United States and foreign nations. And, they
contend, commerce between the United States and foreign
nations that is not import commerce must consist of export
commerce—a kind of commerce irrelevant to the case at
hand.

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Opinion of the Court
The difficulty with respondents’ argument is that the
FTAIA originated in a bill that initially referred only to “ex-
port trade or export commerce.” H. R. 5235, 97th Cong.,
1st Sess., § 1 (1981). But the House Judiciary Committee
subsequently changed that language to “trade or commerce
(other than import trade or import commerce).” 15 U. S. C.
§ 6a. And it did so deliberately to include commerce that did
not involve American exports but which was wholly foreign.
The House Report says in relevant part:
“The Subcommittee’s ‘export’ commerce limitation ap-
peared to make the amendments inapplicable to transac-
tions that were neither import nor export, i. e., transac-
tions within, between, or among other nations. . . .
Such foreign transactions should, for the purposes of
this legislation, be treated in the same manner as ex-
port transactions—that is, there should be no American
antitrust jurisdiction absent a direct, substantial and
reasonably foreseeable effect on domestic commerce or
a domestic competitor. The Committee amendment
therefore deletes references to ‘export’ trade, and sub-
stitutes phrases such as ‘other than import’ trade. It is
thus clear that wholly foreign transactions as well as
export transactions are covered by the amendment, but
that import transactions are not.” House Report, at
9–10 (emphases added).
For those who find legislative history useful, the House
Report’s account should end the matter. Others, by consid-
ering carefully the amendment itself and the lack of any
other plausible purpose, may reach the same conclusion,
namely, that the FTAIA’s general rule applies where the an-
ticompetitive conduct at issue is foreign.
IV
We turn now to the basic question presented, that of the
exception’s application. Because the underlying antitrust

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action is complex, potentially raising questions not directly
at issue here, we reemphasize that we base our decision upon
the following: The price-fixing conduct significantly and ad-
versely affects both customers outside the United States and
customers within the United States, but the adverse foreign
effect is independent of any adverse domestic effect. In
these circumstances, we find that the FTAIA exception does
not apply (and thus the Sherman Act does not apply) for two
main reasons.
First, this Court ordinarily construes ambiguous statutes
to avoid unreasonable interference with the sovereign au-
thority of other nations. See, e. g., McCulloch v. Sociedad
Nacional de Marineros de Honduras, 372 U. S. 10, 20–22
(1963) (application of National Labor Relations Act to
foreign-flag vessels); Romero v. International Terminal Op-
erating Co., 358 U. S. 354, 382–383 (1959) (application of
Jones Act in maritime case); Lauritzen v. Larsen, 345 U. S.
571, 578 (1953) (same). This rule of construction reflects
principles of customary international law—law that (we must
assume) Congress ordinarily seeks to follow. See Restate-
ment (Third) of Foreign Relations Law of the United States
§§ 403(1), 403(2) (1986) (hereinafter Restatement) (limiting
the unreasonable exercise of prescriptive jurisdiction with
respect to a person or activity having connections with an-
other State); Murray v. Schooner Charming Betsy, 2 Cranch
64, 118 (1804) (“[A]n act of congress ought never to be con-
strued to violate the law of nations if any other possible
construction remains”); Hartford Fire Ins. Co. v. California,
509 U. S. 764, 817 (1993) (Scalia, J., dissenting) (identifying
rule of construction as derived from the principle of “ ‘pre-
scriptive comity’ ”).
This rule of statutory construction cautions courts to as-
sume that legislators take account of the legitimate sover-
eign interests of other nations when they write American
laws. It thereby helps the potentially conflicting laws of dif-
ferent nations work together in harmony—a harmony partic-

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ularly needed in today’s highly interdependent commercial
world.
No one denies that America’s antitrust laws, when applied
to foreign conduct, can interfere with a foreign nation’s abil-
ity independently to regulate its own commercial affairs.
But our courts have long held that application of our anti-
trust laws to foreign anticompetitive conduct is nonetheless
reasonable, and hence consistent with principles of prescrip-
tive comity, insofar as they reflect a legislative effort to re-
dress domestic antitrust injury that foreign anticompetitive
conduct has caused. See United States v. Aluminum Co. of
America, 148 F. 2d 416, 443–444 (CA2 1945) (L. Hand, J.); 1
P. Areeda & D. Turner, Antitrust Law ¶ 236 (1978).
But why is it reasonable to apply those laws to foreign
conduct insofar as that conduct causes independent foreign
harm and that foreign harm alone gives rise to the plain-
tiff ’s claim? Like the former case, application of those laws
creates a serious risk of interference with a foreign nation’s
ability independently to regulate its own commercial affairs.
But, unlike the former case, the justification for that interfer-
ence seems insubstantial. See Restatement § 403(2) (deter-
mining reasonableness on basis of such factors as connections
with regulating nation, harm to that nation’s interests, ex-
tent to which other nations regulate, and the potential for
conflict). Why should American law supplant, for example,
Canada’s or Great Britain’s or Japan’s own determination
about how best to protect Canadian or British or Japanese
customers from anticompetitive conduct engaged in signifi-
cant part by Canadian or British or Japanese or other for-
eign companies?
We recognize that principles of comity provide Congress
greater leeway when it seeks to control through legislation
the actions of American companies, see Restatement § 402;
and some of the anticompetitive price-fixing conduct alleged
here took place in America. But the higher foreign prices
of which the foreign plaintiffs here complain are not the con-

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166 F. HOFFMANN-La ROCHE LTD v. EMPAGRAN S. A.
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sequence of any domestic anticompetitive conduct that Con-
gress sought to forbid, for Congress did not seek to forbid
any such conduct insofar as it is here relevant, i. e., insofar
as it is intertwined with foreign conduct that causes inde-
pendent foreign harm. Rather Congress sought to release
domestic (and foreign) anticompetitive conduct from Sher-
man Act constraints when that conduct causes foreign harm.
Congress, of course, did make an exception where that con-
duct also causes domestic harm. See House Report, at 13
(concerns about American firms’ participation in interna-
tional cartels addressed through “domestic injury” excep-
tion). But any independent domestic harm the foreign con-
duct causes here has, by definition, little or nothing to do
with the matter.
We thus repeat the basic question: Why is it reasonable to
apply this law to conduct that is significantly foreign insofar
as that conduct causes independent foreign harm and that
foreign harm alone gives rise to the plaintiff ’s claim? We
can find no good answer to the question.
The Areeda and Hovenkamp treatise notes that under the
Court of Appeals’ interpretation of the statute
“a Malaysian customer could . . . maintain an action
under United States law in a United States court against
its own Malaysian supplier, another cartel member, sim-
ply by noting that unnamed third parties injured [in the
United States] by the American [cartel member’s] con-
duct would also have a cause of action. Effectively, the
United States courts would provide worldwide subject
matter jurisdiction to any foreign suitor wishing to sue
its own local supplier, but unhappy with its own sover-
eign’s provisions for private antitrust enforcement, pro-
vided that a different plaintiff had a cause of action
against a different firm for injuries that were within
U. S. [other-than-import] commerce. It does not seem
excessively rigid to infer that Congress would not have

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167 Cite as: 542 U. S. 155 (2004)
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intended that result.” P. Areeda & H. Hovenkamp, An-
titrust Law ¶ 273, pp. 51–52 (Supp. 2003).
We agree with the comment. We can find no convincing jus-
tification for the extension of the Sherman Act’s scope that
it describes.
Respondents reply that many nations have adopted anti-
trust laws similar to our own, to the point where the practi-
cal likelihood of interference with the relevant interests of
other nations is minimal. Leaving price fixing to the side,
however, this Court has found to the contrary. See, e. g.,
Hartford Fire, 509 U. S., at 797–799 (noting that the alleged
conduct in the London reinsurance market, while illegal
under United States antitrust laws, was assumed to be per-
fectly consistent with British law and policy); see also, e. g.,
2 W. Fugate, Foreign Commerce and the Antitrust Laws
§ 16.6 (5th ed. 1996) (noting differences between European
Union and United States law on vertical restraints).
Regardless, even where nations agree about primary con-
duct, say, price fixing, they disagree dramatically about ap-
propriate remedies. The application, for example, of Amer-
ican private treble-damages remedies to anticompetitive
conduct taking place abroad has generated considerable con-
troversy. See, e. g., 2 ABA Section of Antitrust Law, Anti-
trust Law Developments 1208–1209 (5th ed. 2002). And sev-
eral foreign nations have filed briefs here arguing that to
apply our remedies would unjustifiably permit their citizens
to bypass their own less generous remedial schemes, thereby
upsetting a balance of competing considerations that their
own domestic antitrust laws embody. E. g., Brief for Gov-
ernment of Federal Republic of Germany et al. as Amici Cu-
riae 2 (setting forth German interest “in seeing that German
companies are not subject to the extraterritorial reach of the
United States’ antitrust laws by private foreign plaintiffs—
whose injuries were sustained in transactions entirely out-
side United States commerce—seeking treble damages in
private lawsuits against German companies”); Brief for Gov-

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168 F. HOFFMANN-La ROCHE LTD v. EMPAGRAN S. A.
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ernment of Canada as Amicus Curiae 14 (“treble damages
remedy would supersede” Canada’s “national policy deci-
sion”); Brief for Government of Japan as Amicus Curiae 10
(finding “particularly troublesome” the potential “interfer-
e[nce] with Japanese governmental regulation of the Japa-
nese market”).
These briefs add that a decision permitting independently
injured foreign plaintiffs to pursue private treble-damages
remedies would undermine foreign nations’ own antitrust en-
forcement policies by diminishing foreign firms’ incentive to
cooperate with antitrust authorities in return for prosecuto-
rial amnesty. Brief for Government of Federal Republic of
Germany et al. as Amici Curiae 28–30; Brief for Govern-
ment of Canada as Amicus Curiae 11–14. See also Brief for
United States as Amicus Curiae 19–21 (arguing the same in
respect to American antitrust enforcement).
Respondents alternatively argue that comity does not de-
mand an interpretation of the FTAIA that would exclude
independent foreign injury cases across the board. Rather,
courts can take (and sometimes have taken) account of com-
ity considerations case by case, abstaining where comity con-
siderations so dictate. Cf., e. g., Hartford Fire, supra, at
797, n. 24; United States v. Nippon Paper Industries Co., 109
F. 3d 1, 8 (CA1 1997); Mannington Mills, Inc. v. Congoleum
Corp., 595 F. 2d 1287, 1294–1295 (CA3 1979).
In our view, however, this approach is too complex to
prove workable. The Sherman Act covers many different
kinds of anticompetitive agreements. Courts would have to
examine how foreign law, compared with American law,
treats not only price fixing but also, say, information-sharing
agreements, patent-licensing price conditions, territorial
product resale limitations, and various forms of joint ven-
ture, in respect to both primary conduct and remedy. The
legally and economically technical nature of that enterprise
means lengthier proceedings, appeals, and more proceed-
ings—to the point where procedural costs and delays could

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themselves threaten interference with a foreign nation’s
ability to maintain the integrity of its own antitrust enforce-
ment system. Even in this relatively simple price-fixing
case, for example, competing briefs tell us (1) that potential
treble-damages liability would help enforce widespread anti-
price-fixing norms (through added deterrence) and (2) the
opposite, namely, that such liability would hinder antitrust
enforcement (by reducing incentives to enter amnesty pro-
grams). Compare, e. g., Brief for Certain Professors of Eco-
nomics as Amici Curiae 2–4 with Brief for United States as
Amicus Curiae 19–21. How could a court seriously inter-
ested in resolving so empirical a matter—a matter poten-
tially related to impact on foreign interests—do so simply
and expeditiously?
We conclude that principles of prescriptive comity counsel
against the Court of Appeals’ interpretation of the FTAIA.
Where foreign anticompetitive conduct plays a significant
role and where foreign injury is independent of domestic ef-
fects, Congress might have hoped that America’s antitrust
laws, so fundamental a component of our own economic sys-
tem, would commend themselves to other nations as well.
But, if America’s antitrust policies could not win their own
way in the international marketplace for such ideas, Con-
gress, we must assume, would not have tried to impose them,
in an act of legal imperialism, through legislative fiat.
Second, the FTAIA’s language and history suggest that
Congress designed the FTAIA to clarify, perhaps to limit,
but not to expand in any significant way, the Sherman Act’s
scope as applied to foreign commerce. See House Report,
at 2–3. And we have found no significant indication that at
the time Congress wrote this statute courts would have
thought the Sherman Act applicable in these circumstances.
The Solicitor General and petitioners tell us that they have
found no case in which any court applied the Sherman Act
to redress foreign injury in such circumstances. Tr. of Oral
Arg. 21; Brief for United States as Amicus Curiae 13; Brief

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for Petitioners 13; see also Den Norske, 241 F. 3d, at 429
(“[W]e have found no case in which jurisdiction was found in
a case like this—where a foreign plaintiff is injured in a for-
eign market with no injuries arising from the anticompeti-
tive effect on a United States market”). And respondents
themselves apparently conceded as much at a May 23, 2001,
hearing before the District Court below. 2001 WL 761360,
at *4.
Nevertheless, respondents now have called to our atten-
tion six cases, three decided by this Court and three decided
by lower courts. In the first three cases the defendants
included both American companies and foreign companies
jointly engaged in anticompetitive behavior having both for-
eign and domestic effects. See Timken Roller Bearing Co.
v. United States, 341 U. S. 593, 595 (1951) (agreements among
American, British, and French corporations to eliminate
competition in the manufacture and sale of antifriction bear-
ings in world, including United States, markets); United
States v. National Lead Co., 332 U. S. 319, 325–328 (1947)
(international cartels with American and foreign members,
restraining international commerce, including United States
commerce, in titanium pigments); United States v. American
Tobacco Co., 221 U. S. 106, 171–172 (1911) (American tobacco
corporations agreed in England with British company to di-
vide world markets). In all three cases the plaintiff sought
relief, including relief that might have helped to protect
those injured abroad.
In all three cases, however, the plaintiff was the Govern-
ment of the United States. A Government plaintiff, unlike
a private plaintiff, must seek to obtain the relief necessary
to protect the public from further anticompetitive conduct
and to redress anticompetitive harm. And a Government
plaintiff has legal authority broad enough to allow it to carry
out this mission. 15 U. S. C. § 25; see also, e. g., United
States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 334
(1961) (“[I]t is well settled that once the Government has

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successfully borne the considerable burden of establishing a
violation of law, all doubts as to the remedy are to be re-
solved in its favor”). Private plaintiffs, by way of contrast,
are far less likely to be able to secure broad relief. See Cali-
fornia v. American Stores Co., 495 U. S. 271, 295 (1990) (“Our
conclusion that a district court has the power to order divest-
iture in appropriate cases brought [by private plaintiffs] does
not, of course, mean that such power should be exercised in
every situation in which the Government would be entitled
to such relief ”); 2 P. Areeda, H. Hovenkamp, & R. Blair, Anti-
trust Law ¶¶ 303d–303e, pp. 40–45 (2d ed. 2000) (distinguish-
ing between private and government suits in terms of avail-
ability, public interest motives, and remedial scope); Griffin,
Extraterritoriality in U. S. and EU Antitrust Enforcement,
67 Antitrust L. J. 159, 194 (1999) (“[P]rivate plaintiffs often
are unwilling to exercise the degree of self-restraint and con-
sideration of foreign governmental sensibilities generally ex-
ercised by the U. S. Government”). This difference means
that the Government’s ability, in these three cases, to obtain
relief helpful to those injured abroad tells us little or nothing
about whether this Court would have awarded similar relief
at the request of private plaintiffs.
Neither did the Court focus explicitly in its opinions on a
claim that the remedies sought to cure only independently
caused foreign harm. Thus the three cases tell us even less
about whether this Court then thought that foreign private
plaintiffs could have obtained foreign relief based solely upon
such independently caused foreign injury.
Respondents also refer to three lower court cases brought
by private plaintiffs. In the first, Industria Siciliana As-
falti, Bitumi, S. p. A. v. Exxon Research & Engineering Co.,
No. 75 Civ. 5828-CSH, 1977 WL 1353 (SDNY, Jan. 18, 1977),
a District Court permitted an Italian firm to proceed against
an American firm with a Sherman Act claim based upon a
purely foreign injury, i. e., an injury suffered in Italy. The
court made clear, however, that the foreign injury was “inex-

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tricably bound up with . . . domestic restraints of trade,”
and that the plaintiff “was injured . . . by reason of an al-
leged restraint of our domestic trade,” id., at *11, *12 (em-
phasis added), i. e., the foreign injury was dependent upon,
not independent of, domestic harm. See Part VI, infra.
In the second case, Dominicus Americana Bohio v.
Gulf & Western Industries, Inc., 473 F. Supp. 680 (SDNY
1979), a District Court permitted Dominican and American
firms to proceed against a competing American firm and the
Dominican Tourist Information Center with a Sherman Act
claim based upon injury apparently suffered in the Domini-
can Republic. The court, in finding the Sherman Act appli-
cable, weighed several different factors, including the partic-
ipation of American firms in the unlawful conduct, the partly
domestic nature of both conduct and harm (to American tour-
ists, a kind of “export”), and the fact that the domestic harm
depended in part upon the foreign injury. Id., at 688. The
court did not separately analyze the legal problem before it
in terms of independently caused foreign injury. Its opinion
simply does not discuss the matter. It consequently cannot
be taken as significant support for application of the Sher-
man Act here.
The third case, Hunt v. Mobil Oil Corp., 550 F. 2d 68, 72
(CA2 1977), involved a claim by Hunt, an independent oil
producer with reserves in Libya, that other major oil produc-
ers in Libya and the Persian Gulf (the “seven majors”) had
conspired in New York and elsewhere to make it more diffi-
cult for Hunt to reach agreement with the Libyan Govern-
ment on production terms and thereby eliminate him as a
competitor. The case can be seen as involving a primarily
foreign conspiracy designed to bring about foreign injury in
Libya. But, as in Dominicus, the court nowhere considered
the problem of independently caused foreign harm. Rather,
the case was about the “act of state” doctrine, and the sole
discussion of Sherman Act applicability—one brief para-
graph—refers to other matters. 550 F. 2d, at 72, and n. 2.

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We do not see how Congress could have taken this case as
significant support for the proposition that the Sherman Act
applies in present circumstances.
The upshot is that no pre-1982 case provides significant
authority for application of the Sherman Act in the circum-
stances we here assume. Indeed, a leading contemporane-
ous lower court case contains language suggesting the con-
trary. See Timberlane Lumber Co. v. Bank of America,
N. T. & S. A., 549 F. 2d 597, 613 (CA9 1976) (insisting that
the foreign conduct’s domestic effect be “sufficiently large
to present a cognizable injury to the plaintiffs” (emphasis
added)).
Taken together, these two sets of considerations, the one
derived from comity and the other reflecting history, con-
vince us that Congress would not have intended the FTAIA’s
exception to bring independently caused foreign injury
within the Sherman Act’s reach.
V
Respondents point to several considerations that point the
other way. For one thing, the FTAIA’s language speaks in
terms of the Sherman Act’s applicability to certain kinds of
conduct. The FTAIA says that the Sherman Act applies to
foreign “conduct” with a certain kind of harmful domestic
effect. Why isn’t that the end of the matter? How can the
Sherman Act both apply to the conduct when one person
sues but not apply to the same conduct when another person
sues? The question of who can or cannot sue is a matter for
other statutes (namely, the Clayton Act) to determine.
Moreover, the exception says that it applies if the con-
duct’s domestic effect gives rise to “a claim,” not to “the
plaintiff ’s claim” or “the claim at issue.” 15 U. S. C. § 6a(2)
(emphases added). The alleged conduct here did have do-
mestic effects, and those effects were harmful enough to give
rise to “a” claim. Respondents concede that this claim is
not their own claim; it is someone else’s claim. But, linguis-

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tically speaking, they say, that is beside the point. Nor did
Congress place the relevant words “gives rise to a claim” in
the FTAIA to suggest any geographical limitation; rather it
did so for a here neutral reason, namely, in order to make
clear that the domestic effect must be an adverse (as opposed
to a beneficial) effect. See House Report, at 11 (citing Na-
tional Bank of Canada v. Interbank Card Assn., 666 F. 2d
6, 8 (CA2 1981)).
Despite their linguistic logic, these arguments are not con-
vincing. Linguistically speaking, a statute can apply and
not apply to the same conduct, depending upon other circum-
stances; and those other circumstances may include the na-
ture of the lawsuit (or of the related underlying harm). It
also makes linguistic sense to read the words “a claim” as if
they refer to the “plaintiff ’s claim” or “the claim at issue.”
At most, respondents’ linguistic arguments might show
that respondents’ reading is the more natural reading of the
statutory language. But those arguments do not show that
we must accept that reading. And that is the critical point.
The considerations previously mentioned—those of comity
and history—make clear that the respondents’ reading is not
consistent with the FTAIA’s basic intent. If the statute’s
language reasonably permits an interpretation consistent
with that intent, we should adopt it. And, for the reasons
stated, we believe that the statute’s language permits the
reading that we give it.
Finally, respondents point to policy considerations, namely,
that application of the Sherman Act in present circumstances
will (through increased deterrence) help protect Americans
against foreign-caused anticompetitive injury. Petitioners
and supporting enforcement-agency amici, however, have
made important experience-backed arguments (based upon
amnesty-seeking incentives) to the contrary. We cannot say
whether, on balance, respondents’ side of this empirically
based argument or the enforcement agencies’ side is correct.
But we can say that the answer to the dispute is neither

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clear enough, nor of such likely empirical significance, that it
could overcome the considerations we have previously dis-
cussed and change our conclusion.
For these reasons, we conclude that petitioners’ reading of
the statute’s language is correct. That reading furthers the
statute’s basic purposes, it properly reflects considerations
of comity, and it is consistent with Sherman Act history.
VI
We have assumed that the anticompetitive conduct here
independently caused foreign injury; that is, the conduct’s
domestic effects did not help to bring about that foreign in-
jury. Respondents argue, in the alternative, that the for-
eign injury was not independent. Rather, they say, the anti-
competitive conduct’s domestic effects were linked to that
foreign harm. Respondents contend that, because vitamins
are fungible and readily transportable, without an adverse
domestic effect (i. e., higher prices in the United States), the
sellers could not have maintained their international price-
fixing arrangement and respondents would not have suffered
their foreign injury. They add that this “but for” condition
is sufficient to bring the price-fixing conduct within the scope
of the FTAIA’s exception.
The Court of Appeals, however, did not address this argu-
ment, 315 F. 3d, at 341, and, for that reason, neither shall we.
Respondents remain free to ask the Court of Appeals to
consider the claim. The Court of Appeals may determine
whether respondents properly preserved the argument, and,
if so, it may consider it and decide the related claim.
For these reasons, the judgment of the Court of Appeals
is vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice O’Connor took no part in the consideration or
decision of this case.

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176 F. HOFFMANN-La ROCHE LTD v. EMPAGRAN S. A.
Scalia, J., concurring in judgment
Justice Scalia, with whom Justice Thomas joins, con-
curring in the judgment.
I concur in the judgment of the Court because the lan-
guage of the statute is readily susceptible of the interpreta-
tion the Court provides and because only that interpretation
is consistent with the principle that statutes should be read
in accord with the customary deference to the application of
foreign countries’ laws within their own territories.