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It held that as long as "someone, even if not the foreign plaintiff who is before the court" can claim injury from a defendant's antitrust violation in the United States, foreign plaintiffs can also sue that defendant for the purely foreign effects of its conduct as well.
When a foreign plaintiff comes to the U.S. with a judgment in hand, Brewer says, "they are the winner, and the burden shifts to the defendant in what is essentially a collection action".
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But a federal appeals court reinstated the suit, saying that foreign plaintiffs can sue for the purely foreign effects of their actions.
In this case, F. Hoffmann-LaRoche Ltd. v. Empagran S.A., No. 03-724, the five foreign plaintiffs contended that the companies' ability to raise prices in the United States did in fact contribute to antitrust injury abroad.
And since the Filartiga case ended in 1980 -- with a judgment of more than $10 million for the plaintiffs -- there has been a steady increase in the number of civil cases brought in American courts by foreign plaintiffs against foreign defendants, Ms. Slaughter said.
The possibility of trials has raised concerns among both corporations and the Bush administration over potentially embarrassing testimony -- and worry that a verdict could set a precedent that encourages thousands of foreign plaintiffs to seek damages for crimes committed by their own governments.
Although the issue has only lately gained prominence in the lower courts, recent rulings opening federal courts to antitrust claims by foreign plaintiffs with only remote connections to domestic commerce have engendered enormous interest and concern among companies fearful of newly defined antitrust liability for their overseas operations.
The D.C. Circuit ruling brought fears that foreign plaintiffs would flood U.S. courts.
If foreign plaintiffs are allowed access to U.S. courts, those company's liabilities could be duplicated.
If foreign plaintiffs are also allowed to seek treble damages on worldwide commerce, it significantly magnifies the size of the potential damages for the company.
Depending on how the court rules, U.S. companies that do business overseas could see virtually unlimited liability as foreign plaintiffs use the U.S. courts to redress perceived antitrust violations.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com