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Amici Curiae Briefs in US Anti-trust Case Empagran V Hoffman La-Roche

Empagran S.A. et al v Hoffman La-Roche Ltd et al is a class action brought by non-US claimants. They, outside the USA, purchased vitamins from members of the Vitamins cartel during the period from 1 January 1988 to February 1999.

The Vitamins cartel involved a conspiracy of US and non-US manufacturers and distributors of bulk vitamins to fix prices and share markets worldwide.  This conduct has led to a number of civil claims for damages being brought against the members of the cartel in different states.

On 9 January 2006 the US Supreme Court decided to refuse to hear an appeal against the Appeals Court decision. Therefore the lower court's earlier dismissal (see below) of the case stands.

Background

In the Empagran case the claimants sought to recover treble damages through the US courts in relation to the losses they had suffered following purchases outside the US.  The case is of importance in relation to where damages claims for losses caused by international cartels should be brought.  This issue is of particular significance in relation to whether claims can be brought in the USA. This is because US law provides for treble damages awards in cartel cases and has costs rules that favour claimants.

The UK and other governments submitted briefs to the US appeal courts considering the case (see on the right). The UK argues that the US courts should not hear damages claims on facts like these. To do so could undermine international competition law enforcement and also create the potential for ‘forum shopping’. The UK Government believes that it would be consistent with international law for the US courts to decline jurisdiction in such a case.

The US Supreme Court heard the case on 26 April 2004. It ruled that foreign plaintiffs could not claim for compensation in anti-trust cases in US courts, based on foreign conduct where the adverse effect that had on the claimants was independent of any adverse effect in the US.

However the US Supreme Court left open the question of whether damages claims could be brought by a foreign purchaser, if the claimant could show that the foreign injury at issue was not independent of any domestic (US) injury or conduct.

The US Court of Appeals in the District of Columbia has now considered this issue, on 20 April 2005. They considered the question of whether, in a case where the claimants outside the US would not have suffered loss “but for” the fixing of high US prices, that fact alone was sufficient link with the US for the US courts to consider the claim. The Appeals Court concluded it was not and that it would be necessary to demonstrate a more direct causative link between the high prices being charged in the US and the losses of the claimants for a damages claim to be brought in the US.