Revised February 26, 2001

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT


                      _____________________

                           No. 99-20763
                      _____________________


DEN NORSKE STATS OLJESELSKAP AS,

                                                Plaintiff-Appellant,


                             versus

HEEREMAC VOF; HEERMA MARINE CONTRACTORS;
HEEREMA OFFSHORE SERVICES US, INC.;
HEEREMA OFFSHORE CONSTRUCTION GROUP, INC.;
JAN MEEK; PIETER HEEREMA; McDERMOTT
INTERNATIONAL, INC.; McDERMOTT, INC.;
J. RAY McDERMOTT, SA; J. RAY McDERMOTT,
INC.; J. RAY McDERMOTT GULF CONTRACTORS,
INC.; McDERMOTT ENGINEERS & CONSTRUCTORS
(USA), INC.; McDERMOTT ENGINEERING HOUSTON
LLC; McDERMOTT-ETPM, INC.; SAIPEM SPA;
SAIPEM INTERNATIONAL BV; SAIPEM UK LIMITED;
SAIPEM (PORTUGAL) - COMERCIO MARITIMO,
SOCIEDADE UNIPESSOAL, SA,

                                            Defendants-Appellees.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Southern District of Texas
_________________________________________________________________

                        February 5, 2001

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:
      This appeal requires us to interpret the scope of the United

States antitrust laws and their application to foreign conduct.

The plaintiff is a Norwegian oil corporation that conducts business

solely in the North Sea.     It seeks redress under the United States

antitrust   laws    against     the       defendants     for     an    alleged

anticompetitive conspiracy that supposedly inflated the plaintiff’s

operating costs in the North Sea.           Supreme Court precedent makes

clear as a general proposition that United States antitrust laws

“do not regulate the competitive conditions of other nations’

economies,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 582, 

(1986).         More specifically, today we

are bound by the plain language of the Foreign Trade Antitrust

Improvements Act (FTAIA).     Thus, even though the plaintiff alleges

that the antitrust conspiracy raised prices in the United States,

it fails to assert jurisdiction under the antitrust laws because

the   plaintiff’s   injury    did     not    arise     from    that   domestic

anticompetitive effect.       Accordingly, we find that the district

court properly dismissed the plaintiff’s antitrust claims for lack

of subject matter jurisdiction.           It follows that we affirm the

court’s determination that the plaintiff lacked antitrust standing

to bring these claims in United States federal court.

                                      I




                                      2
     We begin with the basics.       Sections 1 and 2 of the Sherman Act

prohibit restraints of trade and monopolization.           Section 1 reads:

     Every contract, combination in the form of trust or
     otherwise, or conspiracy, in restraint of trade or
     commerce among the several States, or with foreign
     nations, is hereby declared to be illegal.

15 U.S.C. § 1.    Section 2 of the Sherman Act states:

     Every person who shall monopolize, or attempt to
     monopolize, or combine or conspire with any other person
     or persons, to monopolize any part of the trade or
     commerce among the several States, or with foreign
     nations, shall be deemed guilty of a felony. . . .

15 U.S.C. § 2.    The FTAIA, enacted by Congress in 1982 to clarify

the application of United States antitrust laws to foreign conduct,

limits   the   application    of   such   laws   when   non-import   foreign

commerce is involved.        The FTAIA states that the antitrust laws

will not apply to non-import commerce with foreign nations unless

the conduct at issue has a “direct, substantial, and reasonably

foreseeable effect” on domestic commerce and “such effect gives

rise to a claim under” the antitrust laws.1

     1
      15 U.S.C. § 6a.    In full, the FTAIA reads:

     Sections 1 to 7 of this title shall not apply to conduct
     involving trade or commerce (other than import trade or
     import commerce) with foreign nations unless–
     (1) such conduct has a direct, substantial, and
     reasonably foreseeable effect–
     (A) on trade or commerce which is not trade or commerce
     with foreign nations, 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




                                      3
                                      II

     The plaintiff, Den Norske Stats Oljeselskap As (“Statoil”), is

a Norwegian oil company that owns and operates oil and gas drilling

platforms    exclusively   in   the   North   Sea.   The   defendants   are

providers of heavy-lift barge services in the Gulf of Mexico, the

North Sea, and the Far East.      Only six or seven heavy-lift barges

exist in the world.    These immense vessels have cranes capable of

hoisting and transporting offshore oil platforms and decks weighing

in excess of 4,000 tons.    During the 1993-1997 time frame, which is

at issue in this suit, the three defendants controlled these

barges.2    Between 1993 and 1997, Statoil purchased heavy lift barge

services from the HeereMac and Saipem defendants in the North Sea.

      Statoil alleges that the defendants conspired to fix bids and

allocate customers, territories, and projects between 1993 and



     the United States; and
     (2) such effect gives rise to a claim under the
     provisions of sections 1 to 7 of this title, other than
     this section.
     [Proviso] 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.
       2
        The first group of defendants, HeereMac v.o.f. and its
subsidiaries, a foreign corporation with its principal place of
business in The Netherlands, controlled four or five of the barges.
Saipem S.p.A., a British company, controlled one heavy-lift barge.
McDermott, Inc., an American corporation, apparently controlled the
last barge.




                                      4
1997.           Under the alleged arrangement, the defendants agreed that

HeereMac and McDermott would have exclusive access to heavy-lift

projects in the Gulf of Mexico, while Saipem would receive a higher

allocation of North Sea projects in exchange for staying out of the

Gulf.           The defendants also allegedly agreed to submit embellished

bids on heavy-lift projects.                 As a result of this conspiracy,

Statoil contends that it paid inflated prices for heavy-lift barge

services in the North Sea.3                 Statoil further argues that the

conspiracy compelled it to charge higher prices for the crude oil

it exported to the United States.4                Finally, Statoil asserts that

purchasers of heavy-lift services in the Gulf of Mexico were forced

to   pay          inflated   prices   for    those   services   because   of   the

conspiracy.5

                                            III

      By way of background, it should be noted that in December

1997, the United States Department of Justice filed a criminal

            3
       Statoil does not allege that it purchased any heavy-lift
services in the United States or that the contracts it entered into
included agreements to apply United States law.
        4
       Statoil asserts that           it has exported an average of 400,000
barrels of oil a day into             the United States over the past three
years.    Statoil does not,            however, allege any injury to itself
derived from its export of            oil to the United States.
                 5
         Statoil does not allege that it owns, operates, or
commissions any oil exploration platforms within United States
waters, or that it conducted business with any of the defendants
incorporated in the United States.




                                             5
complaint   against     defendants    HeereMac      and   Jan   Meek,   one   of

HeereMac’s managing directors.             The complaint alleged that the

defendants conspired “to suppress and eliminate competition by

rigging bids for the sale of heavy-lift derrick barge and related

marine construction services in the United States and elsewhere.”6

HeereMac and Meek submitted to United States jurisdiction and pled

guilty to the charges.     They agreed to pay fines of $49 million and

$100,000, respectively.

     Following the guilty pleas, numerous companies across the

globe filed suit in United States federal court seeking redress for

injuries stemming from defendants’ conduct.               The first of these

suits was filed in the Southern District of Texas in June 1998 by

Phillips    Petroleum    Company     and    three    of   its   foreign-based

subsidiaries.7

     On January 22, 1999, the court dismissed Phillips’s claims for

injuries sustained by its foreign subsidiaries relating to projects

in foreign waters but allowed those claims asserting injury from

projects in United States waters to proceed.                While the court

acknowledged the worldwide nature of the alleged conspiracy in its

      6
       The plea agreement separately addressed issues related to
commerce affected by defendants’ conduct in the Gulf of Mexico and
commerce affected by defendants’ activity in the North Sea and Far
East.
      7
       A group of about forty plaintiffs brought a second suit
against defendants in the Northern District of Texas.




                                      6
order, it nonetheless held that subject matter jurisdiction did not

exist for those claims pled by foreign-based subsidiaries for

injuries allegedly sustained on foreign platforms.8             Specifically,

the court determined that those claims did not fall within the

ambit of the United States antitrust laws because the claims did

not arise from a direct and substantial effect on United States

commerce.9

     Statoil filed this suit in the same court in December 1998.

The court dismissed Statoil’s complaint against the defendants on

July 12, 1999.10        In its order, the court relied heavily upon its

decision     in   the    Phillips   case   and   found   no   subject   matter

jurisdiction over the claims because “Statoil’s damages arise from

its projects in the Norwegian sector of the North Sea”;             thus, the

FTAIA’s requirement that the effect on domestic commerce “gives

rise” to the antitrust claim was not satisfied.                See 15 U.S.C.



    8
     The court determined it did have subject matter jurisdiction
over the alleged conspiracy and injury “relating to the Mahogany
project in the territorial waters of the United States in the Gulf
of Mexico.”
         9
        The court stated that “the claims of the foreign-based
[subsidiaries] regarding injuries sustained in relation to the
foreign platforms” were not justiciable in United States courts
because “the primary injury to that party must be caused in the
United States and substantially affect United States commerce.”
        10
       The defendants filed motions to dismiss based on lack of
subject matter jurisdiction (Rule 12(b)(1)) and failure to state a
claim under the Sherman Act (Rule 12(b)(6)).




                                       7
§ 6a(2).      The court also held that the defendants’ conspiracy “did

not    have    a     direct,   substantial,    and   reasonably   foreseeable

anticompetitive effect on United States trade or commerce” under

the FTAIA.         See 15 U.S.C. § 6a(1).     Finally, the court determined

that “Statoil lacks standing to bring a claim under United States

antitrust laws because its alleged injuries are not of the type

that the antitrust statute was intended to redress.”11               Statoil

timely appealed the judgment.

                                       IV

       The issue presented to us is primarily one of statutory

interpretation. Specifically, this appeal requires us to interpret

the relevant provisions of the FTAIA to determine whether the

defendants’ conduct and Statoil’s injury in the North Sea presents

a justiciable claim in the federal courts of the United States.

       It is not helpful that the federal courts have generally

disagreed as to the extraterritorial reach of the antitrust laws

and have employed assorted tests to determine the scope of the

Sherman Act.        The history of this body of case law is confusing and

unsettled.12       However, as far as this appeal is concerned, our work

      11
     The court then declined to exercise supplemental jurisdiction
over the remaining common law claims pursuant to 28 U.S.C.
§ 1367(c)(3).
       12
      The first case to consider the extraterritorial application
of United States antitrust law was American Banana Co. v. United
Fruit Co., 

, 

(1909).      In that case,




                                        8
is simplified by Congress’ passage in 1982 of the FTAIA, which

specifically exempts certain foreign conduct from the antitrust

laws.   This circuit has never interpreted the relevant portions of

the FTAIA as they apply to global conspiracies and resulting




Justice Holmes announced that the Sherman Act could have no
application to conduct that occurred outside of the United States.

   However, as the United States became increasingly
involved in foreign commerce in the years following American
Banana, the Supreme Court relaxed its previous stance and held that
the Sherman Act authorized jurisdiction over foreign defendants so
long as domestic commerce was affected and some conduct occurred
within the United States See United States v. Sisal Sales Corp.,

, 276, 

(1927).
     In 1945, the Second Circuit laid the groundwork for what
became known as the “effects test” to determine antitrust
jurisdiction over foreign conduct. In United States v. Alumnium
Company of America (“Alcoa”), 

(2d Cir. 1945), Judge
Learned Hand determined that a United States court would have
jurisdiction over the conduct of foreign corporations where that
conduct was intended to, and actually did, affect United States
commerce.    

    The Alcoa effects test has been
gradually adopted by most federal courts, albeit in various forms.
     The already confused effects test was even more imprecise
following the Ninth Circuit’s decision in Timberland Lumber Co. v.
Bank of America, 

, 613 (9th Cir. 1976). In that case,
the court introduced a balancing test that considered principles of
comity in addition to domestic effects when determining the scope
of antitrust jurisdiction over foreign defendants.       The Fifth
Circuit adopted a similar comity-informed approach. See American
Rice, Inc. v. Arkansas Rice Growers Co-op Ass’n, 

, 413
(5th Cir. 1983).     Most recently, in 1993, the Supreme Court
confirmed that “the Sherman Act applies to foreign conduct that was
meant to produce and did in fact produce some substantial effect in
the United States.” Hartford Fire Ins. Co. v. California, 

, 796, 

(1993).




                                 9
foreign injury.13     Today, we take on this task, and make no claim

that it is an easy one.

                                      V

                                      A

     We review de novo a district court’s ruling on a 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction. 14             See

Hebert v. United States, 

, 722 (5th Cir. 1995).                 In

ruling    on   a   motion   to   dismiss   for   lack   of    subject   matter

jurisdiction, a court may evaluate (1) the complaint alone, (2) the

complaint supplemented by undisputed facts evidenced in the record,

or (3) the complaint supplemented by undisputed facts plus the

court’s resolution of disputed facts.            See Barrera-Montenegro v.

United States, 

, 659 (5th Cir. 1996).             Nevertheless, we

must accept all factual allegations in the plaintiff’s complaint as

true. See Williamson v. Tucker, 

, 412 (5th Cir. 1981).


    13
      In fact, no circuit appears to have interpreted the critical
portion of the FTAIA at issue in this case--the requirement that
the domestic effect on commerce “gives rise” to the antitrust
claim. 15 U.S.C. § 6a(2).
     14
      It is true that the defendants filed 12(b)(6) motions along
with their 12(b)(1) motions. However, the district court’s order
establishes that the court dismissed the claims for lack of subject
matter jurisdiction rather than failure to state a claim under the
antitrust laws:

     [T]he court orders that Defendants’ motions to dismiss
     for lack of subject matter jurisdiction are granted and
     that this case is dismissed without prejudice.      All
     remaining pending motions are moot.




                                      10
       We   first   outline   Statoil’s      argument    that    United      States

antitrust jurisdiction encompasses the conduct and injury in its

complaint.

                                       B

       Statoil argues that the FTAIA does not preclude the district

court’s jurisdiction over its antitrust claims.                   Specifically,

Statoil argues that the FTAIA was enacted exclusively to ensure

that the conduct providing the basis of the plaintiff’s claim have

the requisite domestic effects, and was not intended to preclude

recovery to foreign plaintiffs based on the situs of the injury.15

Moreover, Statoil contends that Section 2 of the FTAIA was inserted

only to ensure that the effect on United States commerce that

provides jurisdiction is itself a violation of the antitrust laws;

that    is,   the   statute   simply        requires    that    there   be     some


       15
       Statoil refers to the legislative history of the FTAIA to
support its interpretation:

       The Committee did not believe that the bill reported by
       the subcommittee was intended to confer jurisdiction on
       injured foreign persons when that injury arose from
       conduct with no anticompetitive effects in the domestic
       marketplace. Consistent with this conclusion, the full
       committee added language to the Sherman and FTC Act
       amendments to require that the ‘effect’ providing the
       jurisdictional nexus must also be the basis for the
       injury alleged under the antitrust laws. This does not,
       however, mean that the impact of the illegal conduct must
       be experienced by the injured party within the United
       States.

H.R. Rep. No. 97-686, at 12.




                                       11
anticompetitive,    harmful   effect    in   this   country--not    just   a

positive or neutral domestic effect.16

     Addressing    specifically   the   FTAIA’s     requirement    that   the

domestic effect “gives rise” to its antitrust claim, Statoil

primarily argues that, because the defendants operating in the Gulf

of Mexico were able to maintain their monopolistic pricing only

because of their overall market allocation scheme (which included

agreements regarding operations in the North Sea), Statoil’s injury

in the North Sea was a “necessary prerequisite to” and was “the

quid pro quo for” the injury suffered in the United States domestic

market. Statoil alleges that the market for heavy-lift services in

the world is a single, unified, global market;         therefore, because

the United States is a part of this worldwide market, the effect of




     16
       Statoil cites additional legislative history in support of
this interpretation of the FTAIA:

     . . . [T]he domestic ‘effect’ that may serve as the
     predicate for antitrust jurisdiction under the bill must
     be of the type that the antitrust laws prohibit. For
     example, a plaintiff would not be able to establish
     United States antitrust jurisdiction merely by proving a
     beneficial effect within the United States, such as
     increased profitability of some other company or
     increased domestic employment, when the plaintiff’s
     damage claim is based on an extraterritorial effect on
     him of a different kind.

H.R. Rep. No. 97-686, at 12 (1982) (citation omitted).




                                   12
the conspiracy, whether in the United States or in the North Sea,

“gives rise” to any claim that is based upon this conspiracy.17

                                  C

     We must disagree with Statoil’s arguments based on our reading

of the antitrust statutes. Although we are controlled by the plain

language of the statutes, we also find that the legislative history

of the FTAIA and applicable case law supports our determination

that the district court lacked jurisdiction over Statoil’s claims.

     We begin with an analysis of the relevant statutes and the

plain language contained therein.

                                  1

     The Supreme Court has explained that “[a]bsent a clearly

expressed   legislative   intention   to   the   contrary,   [statutory]

language must ordinarily be regarded as conclusive.”          Escondido

Mut. Water Co. v. La Jolla Indians, 

, 772, 

(1984).   We are thus bound by the plain, ordinary meaning of



       17
         In addition to its statutory interpretation arguments,
Statoil cites a number of cases in an attempt to support its
proposition that subject matter jurisdiction exists under the
Sherman Act so long as the conspiratorial conduct had an affect on
United States commerce. See Caribbean Broad. Sys., Ltd. v. Cable
and Wireless PLC, 

(D.C. Cir. 1998); United States v.
Nippon Paper Indus. Co., 

(1st Cir. 1997); Hartford Fire,

; Pfizer, Inc. v. Gov’t of India, 

, 

(1978).    However, none of these cases interpret the
relevant provision of the FTAIA (15 U.S.C. § 6a(2)) and, therefore,
none of these cases inform our inquiry into the proper
interpretation of the “gives rise to” requirement.




                                 13
the language used in the antitrust statutes and, in particular, the

FTAIA.

     We begin by first noting that the Sherman Act itself applies

only to conduct in “trade or commerce with foreign nations.”    15

U.S.C. §§ 1,2 (emphasis added).    The commerce that gives rise to

the action here–-the contracting for heavy lift barge services in

the North Sea--was not United States commerce with foreign nations,

but commerce between or among foreign nations–-that is, between or

among Statoil (a Norwegian corporation), Saipem (England), and

HeereMac (The Netherlands).    Therefore, we doubt that foreign

commercial transactions between foreign entities in foreign waters

is conduct cognizable by federal courts under the Sherman Act.18

     As we have noted, the FTAIA states that the antitrust laws

will not apply to non-import foreign conduct unless (1) such

conduct has a direct, substantial, and reasonably foreseeable

effect on United States domestic commerce, and (2) such effect



     18
       This interpretation is further strengthened by the limits
placed on Congressional power in the Constitution. Article I, § 8
of the Constitution gives Congress the authority only to regulate
interstate commerce and “commerce with foreign nations” (emphasis
added). Thus, even if Congress indeed intended to regulate purely
foreign commerce in the Sherman Act, it was not empowered to do so
under the Commerce Clause.




                                  14
gives        rise   to   the   antitrust     claim.19   The   conduct   of    these

defendants          is   foreign   conduct    that   falls   within   the   general

parameters of the FTAIA and, thus, Statoil must show that the two



        19
      The dissent, like Statoil, argues that Section 2 should be
read to require only that the domestic effect give rise to any
antitrust claim, not necessarily the plaintiff’s claim.     This
interpretation contradicts the explicit intent of Congress to
require that the effect must give rise to the particular injury
claimed by the plaintiff in the suit:

     . . . [T]he full committee added language to the Sherman
     and FTC Act amendments to require that the ‘effect’
     providing the jurisdictional nexus must also be the basis
     for the injury alleged under the antitrust laws.

H.R. Rep. No. 97-686, at 12 (emphasis added).
     The dissent asserts that reading Section 2 as requiring that
the domestic effect give rise to the plaintiff’s claim renders the
FTAIA’s proviso redundant. Although giving the statute a clear
understanding is difficult, we disagree with the dissent’s reading.
We read Section 1(B) to provide that the export commerce covered
under the exception must be conducted by a person who is engaged in
that export business in the United States. Section 2 provides that
the defendant’s antitrust effect on this export commerce described
in Section 1(B) must give rise to the plaintiff’s cause of action.
The proviso, in turn, states that the recovery for injuries
resulting from the conduct described in Section 1(B), which gives
rise to the plaintiff’s antitrust claim in Section 2, is limited to
injuries occurring in the United States. Therefore, we fail to see
the redundancy to which the dissent refers.       See In re Copper
Antitrust Litigation v. Sumitomo Corp., No. 00-C-0040-C, 

, at *10 (W.D. Wis. Oct. 2, 2000) (holding that “[t]he
logical interpretation of the language of § 6a is that Congress
extends domestic jurisdiction to extraterritorial conduct only when
the plaintiffs have been injured by the effects on the domestic
market.”).




                                             15
specific requirements of the statute are met to establish subject

matter jurisdiction over its claims.20

     We accept the contention that Statoil has sufficiently alleged

that the defendants’ conduct–-that is, the agreement among heavy-

lift service providers to divide territory, rig bids, and fix

prices–-had   a   direct,   substantial,   and   reasonably   foreseeable

effect on the United States market.          Statoil alleges that the

conspiracy not only forced purchasers of heavy-lift services in the

Gulf of Mexico to pay inflated prices, but also that the agreement

compelled Americans to pay supra-competitive prices for oil.21

These allegations are sufficient to satisfy the first requirement

of the FTAIA.

     However, Statoil fails to show that this effect on United

States commerce in any way “gives rise” to its antitrust claim.22


    20
      Specifically, Statoil’s claim falls under Section 6(a)(1)(A)
and not Section 6(a)(1)(B), because defendants’ conduct had no
substantial effect on export trade with foreign nations.
     21
      Statoil’s complaint alleges that the defendants’ conspiracy
adversely affected at least $165 million in United States commerce
during the 1993-97 period.
    22
      Statoil repeatedly frames the inquiry as whether a plaintiff
can suffer injury abroad, or whether the injury itself must be
suffered in the United States.     This approach is an incorrect
formulation of the threshold question and reflects a misreading of
the FTAIA. We recognize that many federal courts, including the
district court in these proceedings, might have chosen to frame the
analysis in this manner. However, the proper inquiry to make here
is, regardless of the situs of the plaintiff’s injury, did that
injury arise from the anticompetitive effects on United States
commerce? See, e.g., Caribbean, 

(identifying that,



                                   16
Based on the language of Section 2 of the FTAIA, the effect on

United States commerce–-in this case, the higher prices paid by

United States companies for heavy-lift services in the Gulf of

Mexico--must give rise to the claim that Statoil asserts against

the defendants.   That is, Statoil’s injury must stem from the

effect of higher prices for heavy-lift services in the Gulf.    We

find no evidence that this requirement is met here.     The higher

prices American companies allegedly paid for services provided by

the McDermott defendants in the Gulf of Mexico does not give rise

to Statoil’s claim that it paid inflated prices for HeereMac and

Saipem’s services in the North Sea.   This is not to say that any

antitrust injury suffered by customers or competitors of McDermott

that arose from the anticompetitive effect in the Gulf of Mexico

cannot be addressed.23   This means only that, while we recognize

that there may be a connection and an interrelatedness between the

high prices paid for services in the Gulf of Mexico and the high

prices paid in the North Sea, the FTAIA requires more than a “close



while the situs of the injury was overseas, the claim arose from
the conspiracy’s effects on the United States advertising market).
     23
       The dissent notes with disapproval that our interpretation
of the FTAIA means that “a foreign cartel that fixes prices
worldwide will be subject to suit under the Clayton Act only from
plaintiffs injured in American commerce.” However, our reading
produces the precise result intended by Congress--that “[f]oreign
purchasers should enjoy the protection of our antitrust laws in the
domestic marketplace, just as our citizens do.” H.R. Rep. No. 97-
686, at 10-11.



                                17
relationship” between the domestic injury and the plaintiff’s

claim; it demands that the domestic effect “gives rise” to the

claim.24

     Statoil asks that we interpret the requirement of Section 2

that the domestic “effect” give rise to a claim under the antitrust

laws as merely requiring that the defendants’ domestic “conduct”

(here, for example, agreements relating to the Gulf of Mexico) give

rise to a claim.      This interpretation is not true to the plain

language   of   the   FTAIA.   Moreover,   under   such   an   expansive

interpretation, any entities, anywhere, that were injured by any

conduct that also had sufficient effect on United States commerce

could flock to United States federal court for redress, even if


      24
       Statoil argues that, had the district court accepted its
allegation of a worldwide conspiracy as true, the requirements of
the FTAIA would be satisfied and subject matter jurisdiction would
exist.    We cannot agree.     Regardless of the nature of the
conspiracy, Statoil must allege an injury that falls within the
scope of the antitrust statutes.      The assumed existence of a
single, unified, global conspiracy does not relieve Statoil of its
burden of alleging that its injury arose from the conspiracy’s
proscribed effects on United States commerce. This principle was
stressed by the Supreme Court in Matsushita:

     Respondents also argue that the check prices, the five
     company rule, and the price fixing in Japan are all part
     of one large conspiracy that includes monopolization of
     the American market through predatory pricing.        The
     argument is mistaken. However one decides to describe
     the contours of the asserted conspiracy--whether there is
     one conspiracy or several--respondents must show that the
     conspiracy caused them an injury for which the antitrust
     laws provide 

n.7 (emphasis added).



                                  18
those plaintiffs had no commercial relationship with any United

States market and their injuries were unrelated to the injuries

suffered in the United States.25              Such an expansive reading of the

extraterritorial        application      of    the    antitrust    laws   was   never

intended nor contemplated by Congress.                See EEOC v. Arabian Am. Oil

Co., 

, 248, 

(1991) (noting that “[w]e

assume       that   Congress    legislates      against     the   backdrop    of   the

presumption against extraterritoriality.                   Therefore, unless there

is the affirmative intention of the Congress clearly expressed, we

must presume it is primarily concerned with domestic conditions.”)

(citation omitted).

       In sum, we find that the plain language of the FTAIA precludes

subject matter jurisdiction over claims by foreign plaintiffs

against defendants where the situs of the injury is overseas and

that    injury      arises     from   effects    in    a   non-domestic      market.26


        25
       The dissent repeatedly emphasizes that the antitrust laws
have always contemplated foreign plaintiffs recovering for their
injuries. We do not disagree. We simply read the FTAIA to provide
that, if individuals conspire to restrain trade such that an
American market is harmed, the United States antitrust laws can
provide redress to any person injured by the domestic effects of
the conspiracy, even if the injured party is located overseas. See
Sumitomo, 

, at *11 (“On the other hand, the
antitrust laws do not apply to an action by a person injured
overseas because of price-fixing in a foreign market even if the
same defendants engage in price-fixing affecting an American
market.”).
       26
      Statoil alleges that it paid inflated prices for heavy-lift
services in the North Sea. This injury, however, does not arise
from the alleged effect on United States commerce–-that is, the



                                          19
Although the plain language of the relevant statutes is clear and

controlling,    we    nonetheless     turn      now   to   address     briefly   the

legislative history of the FTAIA to illustrate how that history

reinforces our interpretation of the extraterritorial reach of the

antitrust laws.

                                         2

     Before analyzing the legislative history of the FTAIA, we

reemphasize that “[l]egislative history is relegated to a secondary

source    behind     the   language      of   the     statute    in    determining

congressional      intent;   even   in    its    secondary      role   legislative

history must be used cautiously.”             Boureslan v. Aramco, 

, 1018 (5th Cir. 1988) (citation omitted).                  We are thus “not

free to substitute legislative history for the language of the

Act.”    

House Report states that the purpose of the law is

“to more clearly establish when antitrust liability attaches to

international business activities” and to ascertain “the precise

legal standard to be employed in determining whether American



higher prices paid by United States consumers for heavy-lift
services in the Gulf of Mexico. While Statoil also asserts that
the conspiracy had the effect of raising crude oil prices in the
United States, Statoil alleges no injuries to itself occurring in
the market for crude oil or arising from this domestic effect.




                                         20
antitrust law is to be applied to a particular transaction.”                H.R.

Rep. No. 97-686, at 5, 8.27         Moreover, the relevant House Report

shows    that     Congress   intended      to    exclude     purely   foreign

transactions, like the contract for services in the North Sea

between Statoil and the foreign defendants, from the reach of

United States antitrust laws:

     A transaction between two foreign firms, even if
     American-owned, should not, merely by virtue of the
     American ownership, come within the reach of our
     antitrust laws. . . . It is thus clear that wholly
     foreign transactions as well as export transactions are
     covered by the [FTAIA], but that import transactions are
     not.

     Thus,      the   legislative   history     of   the   FTAIA,   while   not

controlling, reinforces our conclusion that a foreign plaintiff

injured in a foreign marketplace must show that a substantial

domestic effect on United States commerce “gives rise” to its

antitrust claim.28


    27
      The dissent seems to imply that the sole purpose of the FTAIA
is to “exempt exporting from antitrust scrutiny.” Although this is
clearly a primary goal of the legislation, the dissent ignores the
second purpose behind the FTAIA--to resolve “possible ambiguity” in
the extraterritorial reach of antitrust jurisdiction. 

    28
      The dissent argues that our decision in this case is contrary
to the statement in the legislative history that “[a] course of
conduct in the United States . . . would affect all purchasers of
the target domestic products or services, whether the purchaser is




                                      21
     We now turn to address briefly applicable case law and its

effect on our interpretation of the FTAIA.

                                       3

     Because     few   courts   have   directly     addressed   the   specific

meaning of the FTAIA’s Section 2 requirement that a domestic effect

“gives rise” to the plaintiff’s antitrust claim, very little case

law exists to aid our inquiry.         Our interpretation of the FTAIA’s

requirements, however, is entirely consistent with prior case law

defining   the    jurisdictional       reach   of    the   antitrust    laws.

Furthermore, those decisions illustrate that our interpretation of

Section 2 is not a novel reading of the statute.



foreign or domestic.”     Again, we do not assert that foreign
purchasers of domestic products can never sue in United States
federal court. We only hold that the FTAIA requires that a foreign
plaintiff show that its injuries arise from a United States market.
This is not a novel reading of the FTAIA:

     [T]he legislative history [of the FTAIA] reflects that
     Congress was proceeding from the premise that, wherever
     title is taken or economic injury is suffered, at least
     some aspect of the sales transaction took place in the
     United States. Any doubt on that score is resolved by .
     . . the sentence which states that ‘foreign purchasers
     should enjoy the protection of our antitrust laws in the
     domestic marketplace, just as our citizens do.’ Nothing
     is said about protecting foreign purchasers in foreign
     markets.

In re Microsoft Corp. Antitrust Litigation, 

, at *37 (M.D. Md. Jan. 12, 2001).




                                       22
     To begin, we note that the only three federal courts that have

addressed the narrow question before us interpreted Section 2

exactly as we have.    See Kruman, et al. v. Christie’s Int’l PLC, et

al., 00 Civ. 6322 (S.D.N.Y. Jan. 29, 2001) (holding that the FTAIA

permits jurisdiction “only where the conduct complained of had

‘direct, substantial and reasonably foreseeable’ effects in the

United States and the effects giving rise to jurisdiction are the

basis for the alleged injury.”);          In re Microsoft Corp., 2001 U.S.

Dist. LEXIS 305, at *37 (holding that, under the FTAIA, “foreign

consumers who have not participated in any way in the U.S. market

have no right to institute a Sherman Act claim.”); Sumitomo, 

, at *1 (holding that “it is plain from the language of

this act and bolstered by the legislative history that a private

plaintiff cannot sue under the antitrust laws of the United States

for injuries incurred as a result of international transactions

that have an anticompetitive effect on a United States market if

the domestic anticompetitive effect is not the same one that gives

rise to the plaintiff’s injury.”).

     We   further    note    that   we    have   found   no   case   in   which

jurisdiction   was   found    in    a   case   like   this--where    a   foreign

plaintiff is injured in a foreign market with no injuries arising




                                        23
from the anticompetitive effect on a United States market.29                        In

those cases where the domestic effect on commerce did not give rise

to   the       plaintiff’s    claim,    courts    have     found    subject     matter

jurisdiction lacking. See, e.g., S. Megga Telecomm. Ltd. v. Lucent

Technologies,         Inc.,   

  (D.Del.        Feb.   14,   1997)

(anticompetitive domestic effect of higher prices for United States

consumers did not “give rise” to plaintiff’s claim for lost sales

to defendant); The ‘In’ Porters, S.A. v. Hanes Printables, Inc.,

(M.D.N.C. 1987) (anticompetitive domestic effect

(lost exports of United States exporters) did not “give rise” to

plaintiff’s claim for lost sales in France due to marketing sales

agreement with defendant); de Atucha v. Commodity Exch., Inc., 

(S.D.N.Y. 1985) (conspiracy’s effect on silver prices

on United States exchange did not “give rise” to plaintiff’s injury

on London exchange).

      On the other hand, in every case where jurisdiction has been

found,        the   substantial   effect     on   United    States    commerce    has

“give[n] rise” to the plaintiff’s injury and claim under the


         29
       See Sumitomo, 

, at *9 (“So far as can be
determined, the issue [of interpreting the language of Section 2]
never came up. In the reported cases, the courts had no occasion
to address the same effects requirement because in each case, the
plaintiffs’ injuries arose out of the same effects experienced by
the markets.”).




                                            24
antitrust laws.        See, e.g., Carpet Group Int’l v. Oriental Rug

Importers     Ass’n,    

     (3rd    Cir.    Sept.    8,   2000)

(anticompetitive effect on domestic rug market ‘gives rise’ to

plaintiff’s injury); Caribbean, 

(monopolization of

United States market for advertising in the Caribbean “gives rise”

to plaintiff’s claim of being blocked from that market); Nippon

Paper, 

(collusion amongst fax paper producers resulted

in higher prices for fax paper in the United States, which “gives

rise” to the United States’ claim); Hartford Fire, 

(conspiracy’s effect on the United States insurance market “gives

rise” to the plaintiffs’ injury, the inability to obtain certain

types of coverage in that market).

      Finally, we note that none of the cases cited by Statoil in

support of its interpretation of the FTAIA cast doubt upon our

plain language interpretation of Section 2.                  Statoil cites Pfizer

v.   India,   

,   for    the   proposition      that   antitrust

jurisdiction exists over foreign conduct like the commerce between

Statoil and defendants in this case.             Pfizer, however, was decided

four years before enactment of the FTAIA, and the court’s holding

was limited     to     the   question     of   whether   a    foreign    government




                                          25
qualified as a “person” under the Sherman Act.                  

Statoil further maintains that Caribbean Broadcasting, 

,     requires    that   jurisdiction   be   found   over    its   claims.

Initially, that case looks similar to today’s case in that both the

plaintiff and the defendant were foreign, and the defendant’s

international conspiracy had anticompetitive effects both inside

and outside the United States.        The critical difference, however,

is that the effect on United States commerce in that case (that is,

limiting to one radio station potential advertisers in the United

States who wished to advertise in the Eastern Caribbean radio

market) gave rise to the injury suffered by the plaintiff, a

competing radio station–-that is, exclusion of the plaintiff from

the market for United States advertising dollars.               

1086.         As previously explained, that is simply not true with

Statoil’s claims.31      Similarly, Statoil’s reliance on Nippon Paper,


         30
        The dissent relies heavily upon Pfizer in asserting that
Statoil’s claim should be cognizable in United States federal
court. The Pfizer court, however, did not analyze the requisite
elements that must be present before a foreign entity can sue under
the United States antitrust laws. Indeed, Pfizer’s narrow holding
was “only that a foreign nation otherwise entitled to sue in our
courts is entitled to sue for treble damages under the antitrust
laws to the same extent as any other plaintiff.” 

    31
     The dissent asserts that we “struggle” to reconcile Caribbean
Broadcasting with our holding in the case before us. However, the




                                     26


, is misplaced because the global conspiracy in that case

had the domestic effect of raising fax paper prices in the United

States, which     gave   rise   to   the   government’s   claim   under   the

antitrust laws.    

     Simply put, Statoil has cited no case law to support an

interpretation of Section 2 of the FTAIA different from the one we

now adopt.   This absence of such precedent, when considered with

the plain language of the statute and evidence of congressional

intent in enacting the FTAIA, reinforces our conclusion in this

case.




court in Caribbean Broadcasting, for whatever reason, completely
ignored Section 2 of the FTAIA in its analysis.     Given that a
decision in the case before us requires an interpretation of that
provision, we find Caribbean Broadcasting unhelpful to any
resolution of Statoil’s claim. Indeed, we fail to understand how
Caribbean Broadcasting provides any meaningful support for the
dissent’s interpretation of Section 2, given that the plaintiff’s
claim in that case arose from the anticompetitive effects on the
domestic market for radio advertising in the Caribbean. 

.




                                      27
                                VI

     In sum, we find that the district court did not err when it

dismissed Statoil’s antitrust claims for lack of subject matter

jurisdiction.   Any reading of the FTAIA authorizing jurisdiction

over Statoil’s claims would open United States courts to global

claims on a scale never intended by Congress.      Without subject

matter jurisdiction, United States federal courts are without power

to entertain Statoil’s claims.32 The judgment of the district court

is therefore

                                                  A F F I R M E D.




     32
       As Statoil has no claim under the United States antitrust
laws, we affirm the district court’s finding that Statoil lacked
standing to bring its claims.         Based on Associated Gen’l
Contractors Inc. v. California State Council of Carpenters, 

, 535-45, 

(1983), the determination of
Statoil’s standing to bring its claims is dependent upon our
finding of subject matter jurisdiction. Thus, in concluding that
the FTAIA bars Statoil’s claims against defendants under the
Sherman Act, we have perforce found that Statoil’s injury is not of
the type that the antitrust statute was intended to forestall.




                                28
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:



     I    agree   that    this    is   not    an   easy    case,   but    I   have   no

hesitation in concluding that the Foreign Trade and Antitrust

Improvements      Act    does    not   here   divest      the   federal   courts     of

jurisdiction and that the plaintiff has standing.                   With deference

to my colleagues, I am persuaded by the plain text of section 6a,

as well as its statutory context, legislative history, and purpose.

     The claim is that defendants allocated the market for hundreds

of millions of dollars of commerce – an allocation that placed

United States markets at the mercy of monopoly charges in an

industry vital to national security. The charged conspiracy was no

foreign cabal whose secondary effects only lapped at United States

shores.    The impact of the conspiracy was direct and substantial.

Indeed, the participation of American business in the market

allocation scheme was critical to its success.                  The plaintiff here

is a foreign company, true enough, but it was injured by the same

acts of defendants that injured American plaintiffs whose right to

seek recovery of their losses the district court recognized in this

litigation.




                                         29
     With    the   Foreign   Trade   and   Antitrust   Improvements   Act,

Congress set out to insulate United States business from its

antitrust laws for certain business conducted outside the country.

Its central purpose was to assist American business in competing

abroad.     This pass from antitrust restrictions did not extend to

all conduct outside the United States.            It stopped short of

insulating conduct having direct and substantial effects upon

American commerce and causing antitrust injury to that commerce

sufficient to support a claim for treble damages.

     I am not persuaded that when illegal conduct produces these

domestic effects, that Congress intended to close the door to a

foreign company injured by the same illegal conduct.         That was not

the law before this effort to assist American business abroad, and

Congress did not intend to change it or do so unwittingly.        I would

reverse and remand for further proceedings.

                                     I

                                     A

     Interpretation of a statute must begin with the text of the

statute itself.      Section 6a states in its entirety:

     Sections 1 to 7 of this title [the Sherman Act] shall not

     apply to conduct involving trade or commerce (other than




                                     30
import trade or import commerce) with foreign nations

unless—



     (1) such conduct has a direct, substantial, and

     reasonably foreseeable effect —



          (A) on trade or commerce which is not trade or

          commerce with foreign nations, 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; and



     (2) such effect gives rise to a claim under the

     provisions of sections 1 to 7 of this title, other

     than this section.



     [Proviso:] 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




                          31
            title shall apply to such conduct only for injury

            to export business in the United States.33

     Section 6a(1) requires an effect on (A) domestic or import

commerce of the United States or (B) the export commerce of a

person in the United States.34       Section 6a(2) requires that this

effect “give[ ] rise to a claim under the provisions of sections 1

to 7 of this title, the Sherman Act, other than this section.”         The

majority reads section 6a(2) to require that the effect “give[ ]

rise to” the plaintiff’s claim.           It does not say that.   It does

say that the effect must “give[ ] rise to a claim.”35             In other

words, the effect on United States commerce must be sufficient to

support a claim, an injury of some person in a way cognizable under

the Sherman Act.36

     The literal text of the statute supports this conclusion.          It

reads, “gives rise to a claim.”           The word “a” has a simple and


     33
          15 U.S.C.A. § 6a (1997).
      34
         For brevity, I herein refer to the effects required by
section 6a(1) as effects on “United States commerce.”
     35
          15 U.S.C. § 6a(2) (emphasis added).
      36
         The effect must cause “antitrust injury.” The “effect”
described by section 6a(1) can be beneficial, neutral, or
injurious. Section 6a(2) requires that this effect be injurious
and, further, that the injury be caused by reduced, not increased,
competition.




                                     32
universally understood meaning.       It is the indefinite article.

There are many terms of art about which one can debate whether

Congress uses the term as courts do, but this word is not one of

them.    If the drafters of the FTAIA had wished to say “the claim”

instead of “a claim,” they certainly would have.37

     The reference to “a” claim makes clear that the “effect”

described by section 6a(1) must violate the Sherman Act — that is,

harm competition.   Section 6a(1) requires that the conspiracy have

an effect on United States commerce; section 6a(2) requires that

this effect either monopolize commerce or restrain trade in the

United States, thereby giving rise to a Sherman Act claim. Section

6a(2) removes jurisdiction over conspiracies whose effects on

United States commerce are beneficial or benign, even if they



    37
      Courts will not presume that statutory language is redundant
or surplusage. The majority’s interpretation, however, makes the
proviso at the end of section 6a redundant.       Section 6a(1)(B)
states that the Sherman Act applies to conduct with effects on
“export trade or export commerce with foreign nations, of a person
engaged in such trade or commerce in the United States.”        The
proviso limits the applicability of the Sherman Act under section
6a(1)(B) “to such conduct only for injury to export business in the
United States.” Thus, while (1)(B) requires only that the conduct
affect a person engaged in export trade in the United States, the
proviso limits recovery under the Sherman Act to such persons. The
majority’s reading of 6a(2) renders this proviso redundant, since
it requires that the effect on the exporter in the United States
“give[ ] rise to” the plaintiff’s claim — in other words, that the
person engaged in export trade be the plaintiff.




                                 33
restrain competition in other parts of the world.        That an injury

that “gives rise to” an antitrust claim must be an injury caused by

harm to competition is no light notion.        It is a well established

and   fundamental   tenet   of   antitrust   law.38   Termed   “antitrust

injury,” it is frequently encountered in enforcement action under

the Clayton Act, by which Congress enlisted private enforcement in

supplementation of governmental enforcement of the Sherman Act.39

       Thus, the literal text does not require that the effect on

United States commerce give rise to the plaintiff’s claim.             At

worst, the text is sufficiently ambiguous to allow for both the

       38
        Courts have long held that private plaintiffs “must prove
the existence of ‘antitrust injury’” to recover under section 4 of
the Clayton Act. Atlantic Richfield Co. v. USA Petroleum Co., 

, 334 (1990). In Matsushita Electric Industrial Co., Ltd.
v. Zenith Radio Corp., 

(1986), the Supreme Court noted
that the plaintiffs “must show that the conspiracy caused them an
injury for which the antitrust laws provide relief.” 

n.7.    The Court explained that a “cognizable injury” is an
“antitrust injury.” 

      39
      The Clayton Act requires that the plaintiff suffer antitrust
injury. The FTAIA, by contrast, requires that the United States
suffer antitrust injury. Compare Clayton Act, 15 U.S.C.A. § 15(a)
(providing cause of action to anyone “injured in his business or
property by reason of anything forbidden in the antitrust laws”)
(emphasis added), with FTAIA, 15 U.S.C.A. § 6a(2) (“gives rise to
a claim under the [Sherman Act]”) (emphasis added). When a private
plaintiff wishes to sue under the Clayton Act, the Clayton Act and
FTAIA erect complementary requirements: the plaintiff must suffer
antitrust injury, and persons in United States commerce must suffer
antitrust injury. The majority opinion, on the other hand, appears
to conflate these two concepts.




                                    34
construction the majority offers and the construction I believe is

correct. At the least, the majority cannot find support in a plain

text argument.

      Accepting that the text of the FTAIA compels neither the

majority’s      reading   or   mine,    we   must   enlist   other   aids   in

determining the meaning of the statute.             In doing so, I conclude

that the textual conclusion that “a” means “a” is supported by the

statutory context of the FTAIA, which describes the function of the

FTAIA and its animating purpose, and by the purposes of the

antitrust laws in general; by the legislative history of the FTAIA;

and by the sparse case law that interprets the FTAIA.

                                        B

      The FTAIA was enacted as Title IV of Public Law 97-290,

entitled “Export Trading Company Act of 1982.”40             Title I contains

the congressional findings.            Every single congressional finding

relates to the importance of export business and the need to

encourage export activity by American business.41            The statute then

states: “It is the purpose of this Act to increase United States



      40
       Export Trading Company Act of 1982, Pub. L. No. 97-290, 96
Stat. 1233 (codified in scattered sections of 15 U.S.C.).
      41
           Export Trading Company Act of 1982 § 102, 96 Stat. at 1233-
34.




                                        35
exports of products and services by encouraging more efficient

provision of export trade services to United States producers and

suppliers, in particular by . . . modifying the application of the

antitrust laws to certain export trade.”42         It could not be clearer

that the FTAIA serves to exempt exporting from antitrust scrutiny,

not   to    limit   the   liability   of   participants   in   transnational

conspiracies that affect United States commerce.43




      42
       § 102(b), 96 Stat. at 1234. The Third Circuit has recently
cited this language in concluding that “Congress enacted the FTAIA
for the purpose of facilitating the export of domestic goods by
exempting export transactions that did not injure the United States
economy from the Sherman Act and thereby relieving exporters from
a competitive disadvantage in foreign trade.” Carpet Group Int’l
v. Oriental Rug Importers Ass’n, Inc., 

, 71 (3d Cir.
2000).
       43
        Because the language of the statute is clear, we need not
resort to its legislative history to discern its purpose. In any
case, the legislative history only reiterates this single,
motivating purpose.    See H.R. Rep. No. 97-686, 97th Cong., 2d
Sess., reprinted in 1982 U.S.C.C.A.N. 2487, 2487 (describing the
legislation as “the bill . . . to exclude from the application of
[the antitrust laws] certain conduct involving exports” and “one of
several bills . . . that seek to promote American exports”). The
excerpt of legislative history upon which the majority relies, that
the purpose of the law is “to more clearly establish when antitrust
liability attaches to international business activities,” is
certainly a true statement, but it expresses the purpose of the law
at a level of generality that offers us no guidance on the narrow
question we face.     What the majority has overlooked is that
Congress has spoken with much more particularity as to the purpose
of this law: the purpose of the FTAIA is to promote exports by
exempting American exporting activity from the antitrust laws.




                                      36
     The text of the FTAIA implements this purpose perfectly.             The

Sherman Act, prior to the enactment of the FTAIA, applied to

conduct   that    affected   domestic,     import,   and   export   commerce.

Recall that section 6a(1) limiting the reach of the Sherman Act

applies to conduct that affects (1) domestic commerce; (2) import

commerce; or (3) export commerce, but only to the extent that

American exporters are affected. One class of conduct is excluded:

conduct that affects only foreign purchasers of American exports.

This is the function of the FTAIA: to protect American exporters

who monopolize or conspire to restrain export trade that does not

harm United States commerce.

     The purpose of the FTAIA offers no support for the majority’s

reading of the statute.          It is undisputed that if proved, the

conspiracy   in    this   case   would    have   direct,   substantial,   and

reasonably foreseeable effects upon United States commerce.                No

American exporters are implicated by this suit. American exporting

business can only be harmed by the alleged conspiracy in this case.

     Indeed, interpreting the FTAIA as the majority wishes will

impair the competitiveness of American exporters.                   Under the

majority’s view, an American cartel that fixes prices worldwide

will be subject to Clayton Act suits by plaintiffs from around the




                                     37
world,44 but a foreign cartel that fixes prices worldwide will be

subject to suit under the Clayton Act only from plaintiffs injured

in American commerce.    This interpretation of the FTAIA transforms

a safe harbor for American exporters into a boon for foreign

cartels that restrain commerce in the United States.

     With respect to my colleagues, I fear that their reading of

the FTAIA will hinder its purposes and reduce the effectiveness of

the antitrust laws.      Nothing in the text of the FTAIA, or the

Export Trading Company Act of 1982 as a whole, or its legislative

history, casts doubt on the importance of deterring restraints of

trade that affect United States commerce.     The Supreme Court has

repeatedly recognized that the accent of the Sherman and the

Clayton Acts is deterrence, requiring violators to pay full, treble

damages, even if some plaintiffs gain a windfall or are foreigners.

For example, in Illinois Brick Co. v. Illinois,45 the Supreme Court

noted the importance of “vigorous private enforcement of the

antitrust laws” and “deterring violators” and recognized that “from


    44
      This cannot seriously be disputed. The FTAIA does not alter
the holding of Pfizer, Inc. v. Government of India, 

(1978), which allowed foreign governments to sue an American cartel
that   charged   supra-competitive   prices   for   pharmaceuticals
worldwide. The legislative history approves of Pfizer. See H.R.
Rep. No. 97-686, reprinted in 1982 U.S.C.C.A.N. 2487, 2495.
     45
          

(1977).




                                  38
the deterrence standpoint, it is irrelevant to whom damages are

paid, so long as some one redresses the violation.”46

     The Supreme Court in Pfizer, Inc. v. Government of India47

addressed     a   situation    somewhat    analogous   to   this   case.   The

government        of   India   sued   several    American      pharmaceutical

manufacturers under the Clayton Act for damages caused by a price-

fixing conspiracy.        Like Statoil, the government of India alleged

a worldwide conspiracy that raised prices in the United States and

abroad.     Unlike in this case, in Pfizer the sales were made in the

United States.48       In holding that foreign governments could recover

under the Clayton Act, Justice Stewart observed: “Treble-damage


    46
          

quoting 

(Brennan, J., dissenting).
     47
          

(1978).
     48
       Because of this, Pfizer is distinguishable from this case,
since one can argue, as the majority does, that the injury to the
foreign plaintiff occurred in the United States.      But there is
nothing in the reasoning of Pfizer that suggests that the facts of
Pfizer define the outer limit of the antitrust laws. Further, even
if we assume that the plaintiffs in Pfizer were injured in the
United States, they were injured as buyers in an export transaction
from the United States. Under section 6a(1)(B) and the majority’s
reading of the section 6a(2), injuries to buyers of American
exports do not create jurisdiction under the antitrust laws. Yet
the legislative history of the FTAIA cites Pfizer with approval.
Pfizer maintains its force after the FTAIA because the conspiracy
in Pfizer also affected Americans in domestic commerce. This is
why section 6a(2) states “gives rise to a claim” and not “gives
rise to the plaintiff’s claim.”




                                      39
suits      by    foreigners      who   have     been   victimized         by    antitrust

violations clearly may contribute to the protection of American

consumers. . . . [A]n exclusion of all foreign plaintiffs would

lessen the deterrent effect of treble damages.”49

      The       logic   underlying     this     conclusion       is   straightforward.

Conspirators facing antitrust liability only to plaintiffs injured

by their conspiracy’s effects on the United States may not be

deterred from restraining trade in the United States.                          A worldwide

price-fixing scheme could sustain monopoly prices in the United

States even in the face of such liability if it could cross-

subsidize its American operations with profits from abroad. Unless

persons injured by the conspiracy’s effects on foreign commerce

could also bring antitrust suits against the conspiracy, the

conspiracy could remain profitable and undeterred.

      It is no rejoinder that conspirators would simply choose to

exclude the United States from any price-fixing conspiracy as long

as   American      plaintiffs      could   sue.        In   at    least    some    cases,

including        the    United   States    in    a   price-fixing       conspiracy     is

necessary to generate monopoly profits. Otherwise, arbitrage would

rapidly equalize unequal prices around the globe as speculators re-



      49
           

                                           40
sold goods purchased in the United States to buyers in high-price

regions.50    Thus, a cartel may find it impossible to fix prices

anywhere without a worldwide conspiracy.                  The Sherman Act can only

deter these violations if it protects all parties injured by such

a conspiracy.

     Justice Stewart succinctly made this argument in Pfizer:

     The     conspiracy    .    .   .   operated     domestically      as    well   as

     internationally.          If foreign plaintiffs were not permitted to

     seek a remedy for their antitrust injuries, persons doing

     business both in this country and abroad might be tempted to

     enter into anticompetitive conspiracies affecting American

     consumers in the expectation that the illegal profits they

     could safely extort abroad would offset any liability to

     plaintiffs     at    home.         If,    on   the    other   hand,    potential

     antitrust violators must take into account the full costs of

     their conduct, American consumers are benefited by the maximum




    50
       For a real-life example of an arbitrage attempt, see Eurim-
Pharm GmbH v. Pfizer, Inc., 

, 1104 (S.D. N.Y.
1984) (describing how antitrust plaintiff attempted to arbitrage
pharmaceuticals by repackaging drugs purchased in England for sale
in Germany).




                                          41
     deterrent     effect     of     treble   damages   upon   all   potential

     violators.51



                                         C

     The legislative history also supports this reading of the

statute and undermines the majority’s interpretation of section

6a(2).     The Committee Report on the House bill that became the

FTAIA states that the FTAIA

     does    not   exclude     all     persons   injured    abroad   from

     recovering under the antitrust laws of the United States.

     A course of conduct in the United States — e.g., price

     fixing not limited to the export market — would affect

     all    purchasers   of    the     target    domestic   products   or

     services, whether the purchaser is foreign or domestic.

     The conduct has the requisite effects in the United

     States, even if some purchasers take title abroad or

     suffer economic injury abroad.52




     

(footnote omitted).
     52
        H.R. Rep. No. 97-686, 97th Cong., 2d Sess., reprinted in
1982 U.S.C.C.A.N. 2487, 2495 (emphasis in original), citing
Pfizer, Inc. v. Government of India, 

(1978).




                                        42
       This statement explicitly refers to plaintiffs who “suffer

economic injury abroad.”          The majority’s interpretation of the

statute is contrary to this statement in the legislative history.

The “effect” on United States commerce is the injury suffered by

purchasers in the United States; this effect does not give rise to

the injury suffered by the foreign plaintiffs. Yet the legislative

history contemplates such plaintiffs recovering under the Sherman

Act.       The   scenario   described    in   this   statement       is    virtually

identical to the instant case: a conspiracy sells to buyers in the

United States and abroad, and each of the buyers is injured.                      All

are injured by the same conspiracy, and it is a conspiracy that has

been injurious to competition in the United States.

       The majority, however, chooses to rely on the following

statement in the same House Report:

       A   transaction      between   two     foreign      firms,    even    if

       American-owned, should not, merely by virtue of the

       American     ownership,    come      within   the     reach    of    our

       antitrust laws. . . .          It is thus clear that wholly

       foreign transactions as well as export transactions are




                                         43
     covered by the [FTAIA], but that import transactions are

     not.53

That American ownership alone should not create jurisdiction over

a wholly foreign conspiracy is not controverted, controversial, or

relevant to this case.       What is relevant is that the language

omitted from the quotation above states that if a conspiracy

between two foreign firms, regardless of American ownership, does

have an effect on domestic commerce, there is jurisdiction.54



                                  D

     I recognize that there is little precedent to guide our

analysis of this question.    Of the case law that does exist, there

are no appellate court cases supporting the majority’s holding. To

the contrary, the majority must reconcile or distinguish the only

other circuit court decisions interpreting the FTAIA, because all

of them find jurisdiction present.




     53
          

    54
       

transactions should, for the purposes of
this legislation, be treated in the same manner as export
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.”).




                                  44
     The majority opinion struggles, and I believe fails, to

reconcile Caribbean Broadcasting System, Ltd. v. Cable & Wireless

PLC,55 which involved a foreign plaintiff alleging monopolization

in radio advertising in the Caribbean by a competing radio station.

The defendant was also a foreign entity.       Consistent with the

reasoning of this dissent, the D.C. Circuit held that the FTAIA did

not preclude jurisdiction, because the plaintiff showed that the

foreign defendants’ conduct had the effect of harming United States

purchasers of advertising.     It stated: “the alleged injury is to

advertisers in the United States.”56   Thus, based on the injury to

advertisers in the United States, the court found jurisdiction over

a suit by a radio broadcaster in the Caribbean.    The D.C. Circuit

did not require that the injury to American advertisers “give[ ]

rise to” the plaintiff’s cause of action; its determination that

the injury gave rise to “a” claim was sufficient.

                                  E

     Finally, the majority’s attempt to enlist the aid of the

Commerce Clause and the canon of construction that creates a

presumption against extraterritoriality is mistaken.



     55
          

(D.C. Cir. 1998).
     56
          

                                  45
       The majority suggests that the interpretation of the FTAIA

that    I     espouse    is   beyond   the    power    of   Congress   to   regulate

commerce.57        The Supreme Court itself has recognized — in the

context       of   the   Sherman   Act   —    that    Congress   has   intended   to

regulate, and constitutionally has regulated, foreign conduct that

affects United States commerce.58 And it has been decades since any

court has taken so cramped a view of the Commerce Clause in any

context.59

       The majority is correct to note that the courts’ historical

willingness to apply the Sherman Act extraterritorially is not

dispositive of this appeal, since the FTAIA, and not the courts’

earlier interpretations of the Sherman Act, is controlling here.60

But precisely because the FTAIA applies here, the majority’s

reliance on the canon against extraterritorial application of

statutes is misplaced.           This canon operates when Congress has not


       57
             See Majority Op. at 1938 n.18.
        58
        Hartford Fire Ins. Co. v. California, 

, 796
(1993) (“[I]t is well established by now that the Sherman Act
applies to foreign conduct that was meant to produce and did in
fact produce some substantial effect in the United States.”).
        59
        See, e.g., United States v. Lopez, 

, 552-59
(1995) (recounting the development of Commerce Clause jurisprudence
in the domestic context).
       60
             See Majority Op. at 1935-36.




                                             46
clearly spoken on the issue of extraterritoriality.61            The FTAIA,

however,           explicitly    addresses        nothing   other     than

extraterritoriality.        We must be careful not to use such a canon

when Congress is speaking directly to the relevant issue.           Make no

mistake: such canons reflect substantive presumptions about the

content       of   laws.    If   courts   apply    substantive   canons   of

construction against statutes that do speak to an issue, then it is

the courts, not Congress, who are making the policy choices that

form the content of legislation.62

                                     II




    61
       See E.E.O.C. v. Arabian American Oil Co., 

, 248
(1991) (“This ‘canon of construction . . . is a valid approach
whereby unexpressed congressional intent may be ascertained.’ . .
. In applying this rule of construction, we look to see whether
‘language in the [relevant Act] gives any indication of a
congressional      purpose      to    extend     its     coverage
[extraterritorially].’”).
         62
          In any case, when Congress enacted the FTAIA, is was
legislating against a backdrop of extraterritorial application of
the Sherman Act; thus we cannot presume that Congress treated non-
extraterritoriality as the default condition. See Hartford Fire

(“[I]t is well established by now that the
Sherman Act applies to foreign conduct that was meant to produce
and did in fact produce some substantial effect in the United
States.”); 

(Scalia, J., dissenting) (“[I]t is now well
established that the Sherman Act applies extraterritorially.”);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

,
582 n.6 (1986); Continental Ore Co. v. Union Carbide & Carbon
Corp., 

, 704 (1962).




                                     47
     Because I disagree with the majority’s interpretation of the

FTAIA, I would reach the standing inquiry.   It is straightforward;

this court has restated the test for standing under the Clayton Act

as “1) injury-in-fact, an injury to the plaintiff proximately

caused by the defendants’ conduct; 2) antitrust injury; and 3)

proper plaintiff status, which assures that other parties are not

better situated to bring suit.”63

     Statoil has standing.   First, it has suffered injury-in-fact.

It paid inflated prices directly to the defendants.

     Second, Statoil has suffered antitrust injury.      Antitrust

injury requires that the injury to the plaintiff not merely show

“injury causally linked to an illegal presence in the market” but

injury “attributable to an anti-competitive aspect of the practice

under scrutiny.”64   This element of standing excludes plaintiffs,

primarily competitors, harmed by increased, rather than decreased,




     63
        Doctor’s Hospital of Jefferson, Inc. v. Southeast Medical
Alliance, Inc., 

, 305 (5th Cir. 1997). For further
discussion, see McCormack v. NCAA, 

, 1341 (5th Cir.
1988); see also Associated General Contractors of California v.
California State Council of Carpenters, 

(1983);
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 

, 489
(1977).
     64
       Atlantic Richfield Co. v. USA Petroleum Co., 

,
334 (1990), quoting 

.




                                 48
competition.65      Statoil’s injury was the direct result of the

alleged price-fixing conspiracy and consequent restraint of trade.66

     Third    and   finally,   Statoil   is   a   proper   plaintiff.   In

determining whether a party is a proper plaintiff, it should

examine “such factors as (1) whether the plaintiff’s injuries or

their causal link to the defendant are speculative, (2) whether

other parties have been more directly harmed, and (3) whether

allowing this plaintiff to sue would risk multiple lawsuits,

duplicative recoveries, or complex damage apportionment.”67

     First, neither Statoil’s injuries, nor their connection to the

defendants, is speculative. The injuries arise from the defendants

charging Statoil monopoly prices.        Second, other parties have not

been harmed more directly than Statoil.       Statoil was a purchaser in

the market for heavy-lift barge services, the market in which the

defendants fixed prices.       Third, allowing Statoil to sue would not


    65
       See Atlantic 

, 337-38; 

.
     66
       Appellees rely heavily on the antitrust injury requirement
in arguing that Statoil lacks standing.       Their argument that
Statoil’s injury was not caused by high prices charged to U.S.
consumers misconstrues the antitrust injury requirement. Antitrust
injury does not limit standing to U.S. consumers but to anti-
competitive injuries. See Doctor’s 

;
see also Blue Shield of Virginia v. McReady, 

(1982).
     67
          

.




                                    49
risk duplicative recoveries or the like.               There is no suggestion

that any unnamed party can seek to recover for the same damages

Statoil suffered.

                                       III

     The     antitrust     laws     have     always    given    federal      courts

jurisdiction over conspiracies that adversely affect competition in

the United States. The FTAIA limits that jurisdiction; but it does

so   by    exempting     American    export     conspiracies,        not    foreign

conspiracies that injure American competition.

     The majority opinion expresses concern that foreign litigants

will flock to the United States for redress of their injuries in

distant lands.         The majority opinion, and the district court

opinions it cites, seem to fear that the interpretation of the

FTAIA that Statoil advocates makes the Sherman Act an antitrust

regulation of foreign economies throughout the entire world, a

paternalistic lawmaking enterprise that ignores the adequacy of

foreign tribunals.         But    Congress     has    enacted   no   such    thing.

Congress enacted the FTAIA to serve the United States’ narrow

interest in vigorous domestic competition.

     The text of the FTAIA may be inelegant, but it serves the

selfish national interests of the United States: the FTAIA excludes

from antitrust liability all conduct that has caused no antitrust




                                       50
injury to the United States economy;68 but it enlists all injured

parties — foreign or domestic — to assist the Department of Justice

in deterring conduct that does harm the forces of competition in

the   United   States.      When    a   conspiracy   causes    a    direct   and

substantial injury to competition in the United States, the Clayton

Act recruits private parties to supplement the efforts of the

Department of Justice in ending the conspiracy.             The FTAIA ensures

that parties injured by foreign aspects of the same conspiracy that

harms American commerce are part of the phalanx of enforcers

brought to bear by the Clayton Act.          Thus, treble damages suits by

parties who suffer antitrust injury from a conspiracy that has a

direct and substantial harmful impact on United States commerce

serve a single function: the protection of United States commerce.

The FTAIA threatens no parade of horribles — it does nothing more

than zealously protect competition in the United States while

sparing    from   the    docket    of   American   courts   suits    involving

conspiracies that affect only foreign economies.

      In sum, I believe the FTAIA does not divest the federal courts

of jurisdiction over suits by plaintiffs who suffer antitrust


      68
       Indeed, the fact that the FTAIA protects American exporters
from antitrust liability for conduct that restrains export trade
indicates that the FTAIA is not concerned with regulating foreign
economies.




                                        51
injuries from a conspiracy that also harms competition in United

States commerce.   Whether the harm felt in the United States is the

source of the injury to the plaintiff is irrelevant; it is the

effects on the United States that creates jurisdiction.    Under the

facts of this case, I would conclude that the district court had

jurisdiction over the suit and that Statoil had standing to sue the

defendants under the Clayton Act.     I respectfully dissent.




                                 52