A foreign nation otherwise entitled to sue in the courts of this
country
held to be a "person" within the meaning of § 4 of
the Clayton Act, and thus to be entitled to sue for treble damages
under the federal antitrust laws to the same extent as any other
plaintiff. Pp.
434 U. S.
311-320.
(a) Though no statutory provision or legislative history clearly
covers the question whether a foreign nation is a "person" as the
word is used in § 4 (which gives "any person" injured by antitrust
violations the right to sue in district courts), Congress intended
the word to have a broad and inclusive meaning, and in light of the
antitrust laws' expansive remedial purpose, the Court has not
narrowly construed the term. Pp
434 U. S.
311-313.
(b) Congress did not intend to make the treble damages remedy
available only to consumers in this country, as is manifest from
the inclusion of foreign corporations within the statutory
definition of "person" and the fact that the antitrust laws extend
to trade "with foreign countries." Pp.
434 U. S.
313-314.
(c) To deny a foreign plaintiff injured by an antitrust
violation the right to sue would defeat the two purposes of § 4: to
deter violators and deprive them of the "
fruits of their
illegality,'" and "to compensate victims of antitrust violations
for their injuries." Illinois Brick Co. v. Illinois,
431 U. S. 720,
431 U. S. 746.
Pp. 434 U. S.
314-315.
(d) When a foreign nation enters our commercial markets as a
purchaser of goods or services, it can be victimized by
anticompetitive practices just as surely as a private person or a
domestic State, which, in
Georgia v. Evans, 316 U.
S. 159, was held to be a "person" within the meaning of
the antitrust laws; and there is no reason why Congress would have
wanted to deprive a foreign nation of the treble damages remedy
available to others who suffer through violations of the antitrust
laws. Pp.
434 U. S.
315-318.
(e) Foreign nations are generally entitled to prosecute civil
claims in the courts of the United States upon the same basis as
domestic corporations or individuals. To afford foreign nations the
protection of the antitrust laws does not involve a judicial
encroachment upon foreign policy, since only governments recognized
by and at peace with the United States are entitled to access to
this country's courts, and it is
Page 434 U. S. 309
within the exclusive power of the Executive Branch to determine
which nations are entitled to sue. Pp.
434 U. S.
318-320.
550 F.2d 396, affirmed.
STEWART, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. BURGER, C.J.,
filed a dissenting opinion, in which POWELL and REHNQUIST, JJ.,
joined,
post, p.
434 U. S. 320.
POWELL, J., filed a dissenting opinion,
post p
434 U. S. 329.
BLACKMUN, J., took no part in the consideration or decision of the
case.
MR. JUSTICE STEWART delivered the opinion of the Court.
In this case, we are asked to decide whether a foreign nation is
entitled to sue in our courts for treble damages under the
antitrust laws. The respondents are the Government of India, the
Imperial Government of Iran, and the Republic of the Philippines.
They brought separate actions in Federal District Courts against
the petitioners, six pharmaceutical manufacturing companies. The
actions were later consolidated for pretrial purposes in the United
States District Court for the District of Minnesota. [
Footnote 1] The complaints alleged that the
petitioners
Page 434 U. S. 310
had conspired to restrain and monopolize interstate and foreign
trade in the manufacture, distribution, and sale of broad spectrum
antibiotics, in violation of §§ 1 and 2 of the Sherman Act, ch.
647, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2. Among the
practices the petitioners allegedly engaged in were price-fixing,
market division, and fraud upon the United States Patent Office.
[
Footnote 2] India and Iran
each alleged that it was a "sovereign foreign state with whom the
United States of America maintains diplomatic relations"; the
Philippines alleged that it was a "sovereign and independent
government." Each respondent claimed that, as a purchaser of
antibiotics, it had been damaged in its business or property by the
alleged antitrust violations, and sought treble damages under § 4
of the Clayton Act, 38 Stat. 731, 15 U.S.C. § 15, on its own behalf
and on behalf of several classes of foreign purchasers of
antibiotics. [
Footnote 3]
Page 434 U. S. 311
The petitioners asserted as an affirmative defense to the
complaints that the respondents as foreign nations were not
"persons" entitled to sue for treble damages under § 4. In response
to pretrial motions, [
Footnote
4] the District Court held that the respondents were "persons,"
and refused to dismiss the actions. [
Footnote 5] The trial court certified the question for
appeal pursuant to 28 U.S.C. § 1292(b). [
Footnote 6] The Court of Appeals for the Eighth Circuit
affirmed, 550 F.2d 396, and adhered to its decision upon rehearing
en banc. [
Footnote 7]
Id. at 400. We granted certiorari to resolve an important
and novel question in the administration of the antitrust laws. 430
U.S. 964.
I
As the Court of Appeals observed, this case "turns on the
interpretation of the statute." 550 F.2d at 397. A treble damages
remedy for persons injured by antitrust violations was first
provided in § 7 of the Sherman Act, and was reenacted in 1914
without substantial change as § 4 of the Clayton Act. [
Footnote 8] Section 4 provides:
"[A]ny person who shall be injured in his business or property
by reason of anything forbidden in the antitrust
Page 434 U. S. 312
laws may sue therefor in any district court of the United States
in the district in which the defendant resides or is found or has
an agent, without respect to the amount in controversy, and shall
recover threefold the damages by him sustained, and the cost of
suit, including a reasonable attorney's fee."
Thus, whether a foreign nation is entitled to sue for treble
damages depends upon whether it is a "person" as that word is used
in § 4. There is no statutory provision or legislative history that
provides a clear answer; it seems apparent that the question was
never considered at the time the Sherman and Clayton Acts were
enacted. [
Footnote 9]
The Court has previously noted the broad scope of the remedies
provided by the antitrust laws.
"The Act is comprehensive in its terms and coverage, protecting
all who are made victims of the forbidden practices by whomever
they may be perpetrated."
Mandeville Island Farms, Inc. v. American Crystal Sugar
Co., 334 U. S. 219,
334 U. S. 236;
cf. Perma Life Mufflers, Inc. v. International Parts
Corp., 392 U. S. 134,
392 U. S.
138-139. And the legislative history of the Sherman Act
demonstrates that Congress used the phrase "any person" intending
it to have its naturally broad and inclusive meaning. There was no
mention in the floor debates of any more restrictive definition.
Indeed, during the course of those debates, the word "person" was
used interchangeably with other terms even
Page 434 U. S. 313
broader in connotation. For example, Senator Sherman said that
the treble damages remedy was being given to "any party," and
Senator Edmunds, one of the principal draftsmen of the final bill,
[
Footnote 10] said that it
established "the right of anybody to sue who chooses to sue." 21
Cong.Rec. 2569, 3148 (1890).
In light of the law's expansive remedial purpose, the Court has
not taken a technical or semantic approach in determining who is a
"person" entitled to sue for treble damages. Instead, it has said
that
"[t]he purpose, the subject matter, the context, the legislative
history, and the executive interpretation of the statute are aids
to construction which may indicate"
the proper scope of the law. United States v. Cooper Corp.,
312 U. S. 600,
312 U. S.
605.
II
The respondents in this case possess two attributes that could
arguably exclude them from the scope of the sweeping phrase "any
person." They are foreign, and they are sovereign nations.
A
As to the first of these attributes, the petitioners argue that,
in light of statements made during the debates on the Sherman Act
and the general protectionist and chauvinistic attitude evidenced
by the same Congress in debating contemporaneous tariff bills, it
should be inferred that the Act was intended to protect only
American consumers. Yet it is clear that a foreign
corporation is entitled to sue for treble damages, since
the definition of "person" contained in the Sherman and Clayton
Acts explicitly includes "corporations and associations existing
under or authorized by . . . the laws of any foreign country."
See n 9,
supra. Moreover, the antitrust laws extend to trade "with
foreign nations" as well as among the several States of the Union.
15 U.S.C. §§ 1, 2. [
Footnote
11] Clearly, therefore, Congress
Page 434 U. S. 314
did not intend to make the treble damages remedy available only
to consumers in our own country. [
Footnote 12]
In addition, the petitioners' argument confuses the ultimate
purposes of the antitrust laws with the question of who can invoke
their remedies. The fact that Congress' foremost concern in passing
the antitrust laws was the protection of Americans does not mean
that it intended to deny foreigners a remedy when they are injured
by antitrust violations. Treble damages suits by foreigners who
have been victimized by antitrust violations clearly may contribute
to the protection of American consumers.
The Court has noted that § 4 has two purposes: to deter
violators and deprive them of "
the fruits of their
illegality,'" and "to compensate victims of antitrust violations
for their injuries." Illinois Brick Co. v. Illinois,
431 U. S. 720,
431 U. S. 746;
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.
S. 477, 429 U. S.
485-486; Perma Life Mufflers, Inc. v. International
Parts Corp., supra at
392 U. S. 139. To deny a foreign plaintiff injured by an
antitrust violation the right to sue would defeat these purposes.
It would permit a price fixer or a monopolist to escape full
liability for his illegal actions, and would deny
Page 434 U. S. 315
compensation to certain of his victims, merely because he
happens to deal with foreign customers.
Moreover, an exclusion of all foreign plaintiffs would lessen
the deterrent effect of treble damages. The conspiracy alleged by
the respondents in this case operated domestically as well as
internationally. [
Footnote
13] 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
deterrent effect of treble damages upon all potential violators.
[
Footnote 14]
B
The second distinguishing characteristic of these respondents is
that they are sovereign nations. The petitioners contend that the
word "person" was clearly understood by Congress when it passed the
Sherman Act to exclude sovereign governments. The word "person,"
however, is not a term of art with a fixed meaning wherever it is
used, nor was it in 1890 when the Sherman Act was passed. [
Footnote 15]
Cf. 245 U.
S. Eisner, 245 U.S.
Page 434 U. S. 316
418,
434 U. S. 425.
Indeed, this Court has expressly noted that use of the word
"person" in the Sherman and Clayton Acts did not create a "hard and
fast rule of exclusion" of governmental bodies.
United States
v. Cooper Corp., 312 U.S. at
312 U. S.
604-605. On the two previous occasions that the Court
has considered whether a sovereign government is a "person" under
the antitrust laws, the mechanical rule urged by the petitioners
has been rejected. [
Footnote
16] In
United States v. Cooper Corp., the United
States sought to maintain a treble damages action under § 7 of the
Sherman Act for injury to its business or property. The Court
considered the question whether the United States was a "person"
entitled to sue for treble damages as one to be decided not "by a
strict construction of the words of the Act, nor by the application
of artificial canons of construction," but by analyzing the
language of the statute "in the light, not only of the policy
intended to be served by the enactment, but, as well, by all other
available aids to construction."
Id. at
312 U. S. 605.
The Court noted that the Sherman Act provides several
Page 434 U. S. 317
separate and distinct remedies: criminal prosecutions,
injunctions, and seizure of property by the United States on the
one hand, and suits for treble damages "granted to redress private
injury" on the other.
Id. at
312 U. S.
607-608. Statements made during the congressional
debates on the Sherman and Clayton Acts provided further evidence
that Congress affirmatively intended to exclude the United States
from the treble damages remedy.
Id. at
312 U. S.
611-612. Thus, the Court found that the United States
was not a "person" entitled to bring suit for treble damages.
[
Footnote 17]
In
Georgia v. Evans, 316 U. S. 159,
decided the very next Term, the question was whether Georgia was
entitled to sue for treble damages under § 7 of the Sherman Act.
The Court of Appeals, believing that the
Cooper case
controlled, had held that a State, like the Federal Government, was
not a "person." This Court reversed, noting that
Cooper
did not hold "that the word
person,' abstractly considered,
could not include a governmental body." 316 U.S. at 316 U. S. 161.
As in Cooper, the Court did not rest its decision upon a
bare analysis of the word "person," but relied instead upon the
entire statutory context to hold that Georgia was entitled to sue.
Unlike the United States, which "had chosen for itself three potent
weapons for enforcing the Act," 316 U.S. at 316 U. S. 161,
a State had been given no other remedies to enforce the
prohibitions of the law. To deprive it also of a suit for damages
"would deny all redress to a State, when mulcted by a violator of
the Sherman Law, merely because it is a State." Id. at
316 U. S.
162-163. Although the legislative history of the Sherman
Act did not indicate that Congress ever considered whether a State
would be entitled to sue, the Court found no reason to believe that
Congress had intended to deprive a State of the remedy made
available to all other victims of antitrust violations.
Page 434 U. S. 318
It is clear that, in
Georgia v. Evans, the Court
rejected the proposition that the word "person" as used in the
antitrust laws excludes all sovereign states. And the reasoning of
that case leads to the conclusion that a foreign nation, like a
domestic State, is entitled to pursue the remedy of treble damages
when it has been injured in its business or property by antitrust
violations. When a foreign nation enters our commercial markets as
a purchaser of goods or services, it can be victimized by
anticompetitive practices just as surely as a private person or a
domestic State. The antitrust laws provide no alternative remedies
for foreign nations as they do for the United States. [
Footnote 18] The words of
Georgia v. Evans are thus equally applicable here:
"We can perceive no reason for believing that Congress wanted to
deprive a [foreign nation], as purchaser of commodities shipped in
[international] commerce, of the civil remedy of treble damages
which is available to other purchasers who suffer through violation
of the Act. . . . Nothing in the Act, its history, or its policy,
could justify so restrictive a construction of the word 'person' in
§ 7. . . . Such a construction would deny all redress to a [foreign
nation], when mulcted by a violator of the Sherman Law, merely
because it is a [foreign nation]."
316 U.S. at
316 U. S.
162-163.
III
The result we reach does not involve any novel concept of the
jurisdiction of the federal courts. This Court has long recognized
the rule that a foreign nation is generally entitled to prosecute
any civil claim in the courts of the United States
Page 434 U. S. 319
upon the same basis as a domestic corporation or individual
might do. "To deny him this privilege would manifest a want of
comity and friendly feeling."
The Sapphire,
11 Wall. 164,
78 U. S. 167;
Monaco v. Mississippi, 292 U. S. 313,
292 U. S. 323
n. 2;
Banco Nacional de Cuba v. Sabbatino, 376 U.
S. 398,
376 U. S.
408-409;
see U.S.Const., Art. III, § 2, cl. 1.
[
Footnote 19] To allow a
foreign sovereign to sue in our courts for treble damages to the
same extent as any other person injured by an antitrust violation
is thus no more than a specific application of a long-settled
general rule. To exclude foreign nations from the protections of
our antitrust laws would, on the other hand, create a conspicuous
exception to this rule, an exception that could not be justified in
the absence of clear legislative intent.
Finally, the result we reach does not require the Judiciary in
any way to interfere in sensitive matters of foreign policy.
[
Footnote 20] It has long
been established that only governments recognized by the United
States and at peace with us are entitled to access
Page 434 U. S. 320
to our courts, and that it is within the exclusive power of the
Executive Branch to determine which nations are entitled to sue.
Jones v. United States, 137 U. S. 202,
137 U. S. 212;
Guaranty Trust Co. v. United States, 304 U.
S. 126,
304 U. S.
137-138;
Banco Nacional de Cuba v. Sabbatino,
supra at
376 U. S.
408-412. Nothing we decide today qualifies this
established rule of complete judicial deference to the Executive
Branch. [
Footnote 21]
We hold today 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. Neither
the fact that the respondents are foreign nor the fact that they
are sovereign is reason to deny them the remedy of treble damages
Congress afforded to "any person" victimized by violations of the
antitrust laws.
Accordingly, the judgment of the Court of Appeals is
Affirmed.
MR JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
[
Footnote 1]
Similar actions were also brought by Spain, South Korea, West
Germany, Colombia, Kuwait, and the Republic of Vietnam. Vietnam was
a party to this case in the Court of Appeals and was named as a
respondent in the petition for certiorari. Subsequent to the filing
of the petition, Vietnam's complaint was dismissed by the District
Court on the ground that the United States no longer recognized the
Government of Vietnam; the dismissal was affirmed by the Court of
Appeals.
Republic of Vietnam v. Pfizer Inc., 556 F.2d 892
(CA8). Vietnam has not participated as a party in this Court. Some
of the other suits have been withdrawn, and the rest are
pending.
[
Footnote 2]
The antibiotic antitrust litigation originated with a proceeding
brought by the Federal Trade Commission which resulted in an order
requiring petitioners Pfizer and American Cyanamid to grant
domestic applicants licenses under their patents for broad spectrum
antibiotics.
See Charles Pfizer & Co. v. FTC, 401 F.2d
574 (CA6). Criminal antitrust proceedings against petitioners
Pfizer, American Cyanamid, and Bristol-Myers were eventually
dismissed.
United States v. Chas. Pfizer &
Co., 367 F. Supp.
91 (SDNY);
see also United States v. Chas. Pfizer &
Co., 426 F.2d 32 (CA2),
modified, 437 F.2d 957,
aff'd by an equally divided Court, 404 U.
S. 548. Most of the large number of civil suits have
been settled.
See West Virginia v. Chas. Pfizer &
Co., 314 F.
Supp. 710 (SDNY),
aff'd, 440 F.2d 1079 (CA2).
[
Footnote 3]
Respondents India and Iran also sued in a
parens
patriae capacity; those claims were dismissed in a separate
appeal, and are not at issue here.
Pfizer Inc. v. Lord,
522 F.2d 612, 615-620 (CA8).
[
Footnote 4]
Petitioners moved to dismiss the suits brought by India and
Iran. The Philippines moved to strike petitioners' affirmative
defense.
[
Footnote 5]
The District Court relied upon an earlier decision denying a
motion to dismiss a related suit brought by the State of Kuwait,
see n 1,
supra. In re Antibiotic Antitrust
Actions, 333 F.
Supp. 315 (SDNY). An appeal was taken from that decision, but
was dismissed by stipulation of the parties. Thus, the Court of
Appeals' decision in the present case marked the first appellate
consideration of the issue.
[
Footnote 6]
A petition for mandamus had previously been denied.
Pfizer
Inc. v. Lord, supra.
[
Footnote 7]
Two judges dissented, believing that Congress, in passing the
Sherman and Clayton Acts, did not intend to include foreign
sovereigns within the scope of the term "person." 550 F.2d at 400.
Three judges in the majority also joined a concurring opinion
noting the absence of controlling legislative history and urging
congressional action.
Id. at 399-400.
[
Footnote 8]
Section 7 of the Sherman Act was repealed in 1955 as redundant.
§ 3, 69 Stat. 283;
see S.Rep. No. 619, 84th Cong., 1st
Sess., 2 (1955).
[
Footnote 9]
The Sherman and Clayton Acts each provide that the word
"person"
"shall be deemed to include corporations and associations
existing under or authorized by the laws of either the United
States, the laws of any of the Territories, the laws of any State,
or the laws of any foreign country."
15 U.S.C. §§ 7, 12. It is apparent that this definition is
inclusive, rather than exclusive, and does not, by itself, imply
that a foreign government, any more than a natural person, falls
without its bounds.
Cf. Helvering v. Morgan's Inc.,
293 U. S. 121,
293 U. S. 125
n. 1;
United States v. New York Telephone Co., ante at
434 U. S. 169
n. 15.
[
Footnote 10]
See Apex Hosiery Co. v. Leader, 310 U.
S. 469,
310 U. S. 489
n. 10.
[
Footnote 11]
THE CHIEF JUSTICE's dissent seems to contend that the Sherman
Act's reference to commerce with foreign nations was intended only
to reach conspiracies affecting goods imported into this country.
Post at
434 U. S.
323-324. But the scope of congressional power over
foreign commerce has never been so limited, and it is established
that the antitrust laws apply to exports as well.
See, e.g.,
Timken Roller Bearing Co. v. United States, 341 U.
S. 593,
341 U. S. 599;
United States v. Minnesota Mining & Mfg.
Co., 92 F. Supp.
947 (Mass.).
[
Footnote 12]
Moreover, in the Webb-Pomerene Act, ch. 50, 40 Stat. 516, as
amended, 15 U.S.C. § 61
et seq., Congress has provided a
narrow and carefully limited exception for export activity that
would otherwise violate the antitrust laws.
See United States
v. Concentrated Phosphate Export Assn., 393 U.
S. 199. A judicial rule excluding all non-Americans as
plaintiffs in treble damages cases would hardly be consistent with
the precisely limited exception Congress has established to the
general applicability of the antitrust laws to foreign
commerce.
[
Footnote 13]
See n 2,
supra.
[
Footnote 14]
It has been suggested that depriving foreign plaintiffs of a
treble damages remedy and thus encouraging illegal conspiracies
would affect American consumers in other ways as well: by raising
worldwide prices, and thus contributing to American inflation; by
discouraging foreign entrants who might undercut monopoly prices in
this country; and by allowing violators to accumulate a "war chest"
of monopoly profits to police domestic cartels and defend them from
legal attacks. Velvel, Antitrust Suits by Foreign Nations, 25
Cath.U.L.Rev. 1, 7-8 (1975).
[
Footnote 15]
The case relied on by petitioners as establishing a general
rule,
United States v. Fox, 94 U. S.
315, merely adopted New York's construction of its
Statute of Wills, as a matter of state law.
Id. at
94 U. S. 320.
Even in New York the word "person" did not have a settled meaning.
Compare In re Will of Fox, 52 N.Y. 530,
aff'd sub nom.
United States v. Fox, supra, with Republic of Honduras v.
Soto, 112 N.Y. 310, 19 N.E. 845. In fact, contemporaneous
cases generally held that the sovereign was entitled to have the
benefit of a statute extending a right to "persons."
See, e.g.,
Stanley v. Schwalby, 147 U. S. 508,
147 U. S.
514-517;
Dollar Savings Bank v. United
States, 19 Wall. 227,
86 U. S. 239;
Cotton v. United
States, 11 How. 229,
52 U. S.
231.
Cases construing federal statutes of the same era also indicate
that the use of the term "person" did not invariably imply an
intent to exclude governmental bodies.
See, e.g., Ohio v.
Helvering, 292 U. S. 360
("person" in §§ 3140 and 3244 of the Revised Statutes of 1878
includes a State);
California v. United States,
320 U. S. 577,
320 U. S.
585-586 ("person" in the Shipping Act, 1916, 46 U.S.C. §
801
et seq., includes both a State and a city);
Chattanooga Foundry & Pipe Works v. Atlanta,
203 U. S. 390,
203 U. S. 396
("person" in the Sherman Act includes a city).
[
Footnote 16]
Even earlier, in
Chattanooga Foundry, supra at
203 U. S. 396,
the Court held without extended discussion that a city was entitled
to sue for treble damages.
[
Footnote 17]
In 1955, Congress amended the Clayton Act to allow the United
States to sue for single damages when it is injured in its business
or property. Ch. 283, § 1, 69 Stat. 282, 15 U.S.C.§ 15a.
[
Footnote 18]
While THE CHIEF JUSTICE's dissent says there are "weapons in the
arsenals of foreign nations" sufficient to enable them to counter
anticompetitive conduct, such as cartels or boycotts,
post
at
434 U. S.
327-328, such a political remedy is hardly available to
a foreign nation faced with monopolistic control of the supply of
medicines needed for the health and safety of its people.
[
Footnote 19]
Congress has explicitly conferred jurisdiction upon the federal
courts to entertain such suits:
"The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or
value of $10,000, exclusive of interest and costs, and is between
--"
"
* * * *"
"(4) a foreign state . . . as plaintiff and citizens of a State
or of different States."
28 U.S.C. § 1332(a)(4) (1976 ed.).
Among the actions foreign sovereign governments were entitled to
maintain at the time of the passage of the Sherman and Clayton Acts
were suits for common law business torts, such as unfair
competition, similar in general nature to antitrust claims.
See
French Republic v. Saratoga Vichy Spring Co., 191 U.
S. 427 (1903);
La Republique Francaise v.
Schultz, 94 F. 500 (SDNY 1899).
[
Footnote 20]
In a letter that was presented to the Court of Appeals when it
reconsidered this case en banc, the Legal Adviser of the Department
of State advised
"that the Department of State would not anticipate any foreign
policy problems if . . . foreign governments [were held to be]
'persons' within the meaning of Clayton Act § 4."
A copy of this letter is contained in the Memorandum for the
United States as
Amicus Curiae in opposition to the
petition for a writ of certiorari filed in this Court.
[
Footnote 21]
Cf. n1,
supra.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE POWELL and MR.
JUSTICE REHNQUIST join, dissenting.
The Court today holds that foreign nations are entitled to bring
treble damages actions in American courts against American
suppliers for alleged violations of the antitrust laws; the Court
reaches this extraordinary result by holding that, for purposes of
§ 4 of the Clayton Act, foreign sovereigns are "persons," while
conceding paradoxically that the question "was never considered at
the time the Sherman and Clayton Acts were enacted."
Ante
at
434 U. S.
312.
I dissent from this undisguised exercise of legislative power,
since I find the result plainly at odds not only with the language
of the statute but also with its legislative history and precedents
of this Court. The resolution of the delicate and
Page 434 U. S. 321
important policy issue of giving more than 150 foreign countries
the benefits and remedies enacted to protect American consumers
should be left to the Congress and the Executive. Congressional
silence over a period of almost a century provides no license for
the Court to make this sensitive political decision vastly
expanding the scope of the statute Congress enacted.
A
"The starting point in every case involving construction of a
statute is the language itself."
Blue Chip Stamps v. Manor Drug
Stores, 421 U. S. 723,
421 U. S. 756
(1975) (POWELL, J., concurring). The relevant provisions here are §
1 of the Clayton Act, in which the word "person" is defined, and §
4, in which the treble damages remedy is conferred on those falling
within the precisely enumerated categories. Section 1 provides, in
relevant part:
"The word 'person' or 'persons' wherever used in this Act shall
be deemed to include corporations and associations existing under
or authorized by the laws of either the United States, the laws of
any of the Territories, the laws of any State, or the laws of any
foreign country."
Section 4 then incorporates this definition by providing:
"That any person who shall be injured in his business or
property by reason of anything forbidden in the antitrust laws may
sue therefor in any district court of the United States in the
district in which the defendant resides or is found or has an
agent, without respect to the amount in controversy, and shall
recover threefold the damages by him sustained, and the cost of
suit, including a reasonable attorney's fee."
Even on the most expansive reading, these two sections provide
not the slightest indication that Congress intended to allow
foreign nations to sue Americans for treble damages under our
antitrust laws. The very fact that foreign sovereigns
Page 434 U. S. 322
were not included within the definition of "person" despite the
explicit reference to corporations and associations existing under
the "laws of any foreign country" in the same definition ought to
be dispositive under established doctrine governing interpretation
of statutes. I therefore see no escape from the conclusion that the
omission by Congress of foreign nations was deliberate.
The inclusion of foreign corporations within the statutory
definition in no sense argues for a different characterization of
Congress' intent. At the time of the passage of both the Sherman
and Clayton Acts, foreign sovereigns, even when acting in their
commercial capacities, were immune from suits in the courts of this
country under the doctrine of sovereign immunity.
See The
Schooner Exchange v. McFaddon, 7 Cranch 116 (1812);
Ex parte Peru, 318 U. S. 578
(1943);
Mexico v. Huffman, 324 U. S.
30 (1945). Foreign corporations, of course, had no such
immunity.
See, e.g., Shaw v. Quincy Mining Co.,
145 U. S. 444,
145 U. S. 453
(1892);
In re Hohorst, 150 U. S. 653,
150 U. S.
662-663 (1893). Given that "person" as used in the
Clayton and Sherman Acts refers to both antitrust plaintiffs and
defendants,
see United States v. Cooper Corp.,
312 U. S. 600,
312 U. S. 606
(1941), the decision of Congress to include foreign corporations
while omitting foreign sovereigns from the definition most likely
reflects this differential susceptibility to suit rather than any
intent to benefit foreign consumers or to enlist their help in
enforcing our antitrust laws. It would be little short of
preposterous to think that Congress in 1890 was concerned about
giving such rights to foreign nations, even though it might well
decide to do so now.
Respondents' claim that this disparate treatment cannot be
justified today when foreign states effectively control many large
foreign corporations and when sovereign immunity has been limited
by the Foreign Sovereign Immunities Act of 1976, Pub.L. 94-583, 90
Stat. 2891, is not an argument appropriately addressed to or
considered by this Court. If
Page 434 U. S. 323
revisions in the statute are required to take into account
contemporary circumstances, that task is properly one for Congress
particularly in light of the sensitive political nature and foreign
policy implications of the question.
The Court's reliance on the references to "foreign nations" in
§§ 1 and 2 of the Sherman Act and § 1 of the Clayton Act to support
an argument that Congress was specifically concerned with foreign
commerce and foreign nations in 1890 when the disputed definition
was enacted is similarly unavailing. As a threshold matter,
congressional concern with the foreign commerce of the United
States does not entail either a desire to protect foreign nations
or a willingness to allow them to sue Americans for treble damages
in our courts. The Webb-Pomerene Act, ch. 50, 40 Stat. 516, as
amended, 15 U.S.C. § 61
et seq., passed within only a few
years of the Clayton Act, indicates that such a concern may instead
be served at the expense of foreign states and consumers. [
Footnote 2/1]
In any event, the relevant language of §§ 1 and 2 of the Sherman
Act, as subsequently incorporated in the Clayton Act, does not
support respondents' contention. The reference to "commerce . . .
with foreign nations" appeared only in the final draft of the Act
as reported by the Senate Judiciary Committee, and replaced
language in the numerous earlier drafts of Senator Sherman to the
following effect:
"That all arrangements, contracts, agreements, trusts, or
combinations between persons or corporations made
Page 434 U. S. 324
with a view or which tend to prevent full and free competition
in the production, manufacture, or sale of articles of domestic
growth or production, or of the sale of articles
imported
into the United States, . . . are hereby declared to be against
public policy, unlawful and void. . . ."
21 Cong.Rec. 2598 (1890) (first draft) (emphasis added).
[
Footnote 2/2] The focus of this
language on protecting domestic consumers from anticompetitive
practices affecting the importation of goods into the United States
could not be more clear, nor could the absence of any attention to
affording comparable protection for foreign consumers of American
exports. The language substituted by the Judiciary Committee --
language tracking that appearing in the Commerce Clause -- was
chosen to mollify the objections of those Senators who felt the
proposed statute exceeded Congress' constitutional power to
regulate commerce,
see, e.g., id. at 2600, 3147 (remarks
of Sen. George);
id. at 2728 (remarks of Sen. Edmunds);
id. at 3149 (remarks of Sen. Reagan);
cf. Apex Hosiery
Co. v. Leader, 310 U. S. 469,
310 U. S. 495
(1940);
Atlantic Cleaners & Dyers, Inc. v. United
States, 286 U. S. 427,
286 U. S.
434-435 (1932); that language was not intended to work
any substantive change in the focus or scope of the Act.
See
United States v. Wise, 370 U. S. 405,
370 U. S. 420
(1962) (Harlan, J., concurring). To read this language as
evidencing an intent to protect foreign nations or foreign
consumers simply belies its lineage.
B
The legislative history of the treble damages remedy gives no
more support to the result reached by the Court than does the
language of the statute. As five of the eight judges of the Court
of Appeals concluded -- and indeed as the majority here concedes,
ante at
434 U. S. 312
--
"Congress, in passing 4 of the Clayton Act, 15 U.S.C. 15, gave
no consideration
nor did
Page 434 U. S. 325
it have any legislative intent whatsoever, concerning the
question of whether foreign governments are 'persons' under the
Act."
550 F.2d 396, 399 (Ross, J., concurring) (emphasis added). The
conversion of this silence in 1890 into an affirmative intent in
1978 is indeed startling.
The failure of Congress even to consider the question of
granting treble damages remedies to foreign nations provides the
clearest possible argument for leaving the question to the same
political process that gave birth to the Sherman and Clayton Acts.
To rely on the absence of any
express congressional intent
to exclude foreign nations from taking advantage of the treble
damages remedy is a remarkable innovation in statutory
interpretation. It is a strange way to camouflage the unassailable
conclusion that the legislative history offers no affirmative
support for the result reached today. Further, as this Court
observed just last Term, the legislative history of the treble
damages remedy which does exist "indicate[s] that it was conceived
of primarily as a remedy for
[t]he people of the United States
as individuals,' especially consumers." Brunswick Corp. v.
Pueblo Bowl-O-Mat, Inc., 429 U. S. 477,
429 U. S. 486
n. 10 (1977), quoting from 21 Cong.Rec. 1767-1768 (1890) (remarks
of Sen. George). What we so recently saw as primarily a remedy for
American consumers is now extended to all the nations of the world
-- a boon Congress might choose to grant, but has not done
so.
C
In the absence of any helpful language in the statute or any
affirmative legislative history, the Court attempts to base its
expansive reading of "person" on Mr. Justice Frankfurter's decision
in
Georgia v. Evans, 316 U. S. 159
(1942), granting the State of Georgia and all other
domestic States the right to sue for treble damages. I
fail to see how that result dictates this one.
In
Georgia v. Evans, Mr. Justice Frankfurter concluded
that, absent the right to sue for treble damages, our States
would
Page 434 U. S. 326
be left without any remedy against violators of the antitrust
laws. The Court today analogizes the situation of foreign nations
to that of the States in
Evans, and finds the analogy
dispositive. When viewed solely in terms of the remedies
specifically provided by the antitrust laws, the plight of domestic
States and foreign sovereigns may, in this limited respect, be
roughly comparable. But the very limited scope of the inquiry in
Evans precludes consideration of the manifold and patently
obvious respects in which foreign nations and our own domestic
States differ -- cogent differences bearing on the question under
consideration here, though obviously not at all on the Court's
inquiry in
Evans.
First, the disparate treatment of foreign and domestic States is
a legitimate source of concern only on the assumption that Congress
in passing the Sherman Act intended--or even contemplated -- that
these two categories of political entities were so essentially
alike that they were entitled to the same remedies against
anticompetitive conduct. As I have already suggested, this
assumption derives no support from either the statutory language or
anything in the legislative history. Although our own States were
also not the expressly intended beneficiaries of the Act, to deny
them the treble damages remedy would, as Mr. Justice Frankfurter
perceived, have the unmistakable result of effectively denying
surrogate protection to American citizens in whose behalf the State
acts and for whose benefit the Sherman Act was enacted. Thus, while
the result in Evans is a tolerable taking of certain liberties with
the literal language of the statute, the congruence of that result
with Congress' purpose can scarcely be doubted. This same logic,
however, does not even remotely apply to the situation of foreign
nations.
Second, it simply is not the case that, absent a treble damages
remedy, foreign nations would be denied any effective means of
redress against anticompetitive practices by American corporations.
Unlike our own States, whose freedom of action in this regard is
constrained by the Commerce and Supremacy
Page 434 U. S. 327
Clauses, foreign sovereigns remain free to enact and enforce
their own comprehensive antitrust statutes and to impose other more
drastic sanctions on offending corporations. One need look no
further than the laws of respondents India and the Philippines for
evidence that such remedies are possessed by foreign nations. And
indeed,
amicus West Germany has demonstrated that such
laws are not mere idle enactments. During the pendency of this
action, it notified petitioner Pfizer that a proceeding under
German antitrust law was being commenced involving some of the same
allegations which are made in the complaint filed by respondents in
their treble damages actions in this country.
While problems of jurisdiction and discovery may render
antitrust actions against foreign defendants somewhat more
problematic than a suit against a corporation in its own country,
the limited experience of the Common Market nations in applying
their antitrust laws to foreign corporations suggests that such
difficulties are certainly not insoluble, and are likely
exaggerated.
See, e.g., Europemballage Corp. v. E. C.
Commission, 12 Comm.Mkt.L.R. 199 (1973);
Commercial
Solvents Corp. v. E. C. Commission, 13 Comm.Mkt.L.R. 309
(1974). And, as the presently existing treaty between the United
States and West Germany indicates,
reciprocal agreements
providing for cooperation in antitrust investigations undertaken by
foreign nations are an effective means of mitigating the rigors of
discovery in foreign jurisdictions.
See Agreement Relating
to Mutual Cooperation Regarding Restrictive Business Practices,
entered into force Sept. 11, 1976. United States -- Federal
Republic of Germany, [1976] 27 U.S. T. 1956, T.I.A.S. No. 8291
Third, it takes little imagination to realize the dramatic and
very real differences in terms of coercive economic power and
political interests which distinguish our own States from foreign
sovereigns. The international price fixing, boycotts, and other
current anticompetitive practices undertaken by some Middle Eastern
nations are illustrative of the weapons
Page 434 U. S. 328
in the arsenals of foreign nations which no domestic State could
ever employ. Nor do our domestic States, in any meaningful sense,
have the conflicting economic interests or antagonistic ideologies
which characterize and enliven the relations among nation
states.
Viewed in this light, it is clear that the decision to allow
foreign sovereigns to seek treble damages from Americans and to
rely on standards of competitive behavior in fixing liability which
those very same nations flout in their business relationships with
this country is a decision dramatically different from the one Mr.
Justice Frankfurter faced in
Evans. To consider the result
reached there as to Georgia determinative of the result here is to
substitute a "hard and fast rule of inclusion" for the "hard and
fast rule of exclusion" which Justices Frankfurter and Roberts
eschewed in
Evans and
Cooper, respectively. Only
the most mechanical reading of our prior precedent will justify
such a result.
Further, the result reached by the Court today confronts us with
the anomaly that, while the United States Government cannot sue for
treble damages under our antitrust laws, other nations are free to
engage in the most flagrant kinds of combinations for price fixing,
totally at odds with our antitrust concepts, and nevertheless are
given the right by the Court to sue American suppliers in American
courts for treble damages plus attorneys' fees. It is no answer to
say that the United States needs no civil treble damages remedy,
since it has reserved for itself the power to pursue criminal
remedies against American suppliers for antitrust violations. What
that response overlooks is that our criminal antitrust remedies
hardly compare with the infinite array of political and commercial
weapons available to a foreign nation for use against the United
States itself or against American producers and suppliers. This,
again, underscores how completely the problem is a matter of policy
to be resolved by the political branches without the intrusion of
the Judiciary.
Page 434 U. S. 329
D
Finally, the Court's emphasis on the deterrent effects of treble
damages actions by foreign sovereigns also will not withstand
critical scrutiny. We acknowledged in
Brunswick Corp. v. Pueblo
Bowl-O-Mat, Inc., 429 U.S. at
429 U. S.
485-486, that, while treble damages do play an important
role in deterring wrongdoers, "the treble damages provision . . .
is designed primarily as a remedy." To allow foreign sovereigns who
were clearly not the intended beneficiaries of this remedy to
nevertheless invoke it reverses this priority of purposes, and does
so solely on the basis of this Court's uninformed speculation about
some possible beneficial consequences to American consumers of this
"maximum deterrent."
Ante at
434 U. S. 315.
In areas of far less political delicacy, we have been unwilling to
expand the scope of the right to sue under the antitrust laws
without express congressional intent to do so.
See, e.g.,
Hawaii v. Standard Oil Co., 405 U. S. 251,
405 U. S.
264-265 (1972). [
Footnote
2/3]
For these reasons, I dissent from the Court's intrusion into the
legislative sphere.
[
Footnote 2/1]
The Webb-Pomerene Act exempts certain actions of export
associations from the antitrust laws, but the exemption applies
only if the association's actions do not restrain trade or affect
the price of exported products within the United States and do not
restrain the export trade of any domestic competitor of the
association. 15 U.S.C. § 62. Although the Act was subsequently
regarded as carving out an exemption from the antitrust laws, the
legislative history indicates considerable question at the time
whether the conduct of exporters meeting the conditions specified
in the Act would have violated the antitrust laws even without the
putative exemption.
See H.R.Rep. No. 50, 65th Cong., 1st
Sess., 2 (1917).
[
Footnote 2/2]
The equivalent language of subsequent drafts can be found at 21
Cong.Rec. 2598-2600 (1890).
[
Footnote 2/3]
The Court adverts to a letter from the Legal Adviser of the
State Department to the Court of Appeals advising that no foreign
policy problems were anticipated from a decision holding foreign
governments to be persons within the meaning of § 4 of the Clayton
Act. The significance of this communication escapes me. Nothing in
the Constitution suggests legislative power may be exercised
jointly by the courts and the Department of State.
MR. JUSTICE POWELL, dissenting.
I join THE CHIEF JUSTICE in his dissent, and add a word to
emphasize my difficulty with the Court's decision.
The issue is whether the antitrust laws of this country are to
be made available for treble damages suits against American
businesses by the governments of other countries. The Court
resolves this issue in favor of such governments by construing the
word "person" in § 4 of the Clayton Act to include
Page 434 U. S. 330
"foreign governments." No one argues seriously that this was the
intent of Congress in 1890 when the term "person" was included in
the Act. Indeed, the Court acknowledges that this "question was
never considered at the time the Sherman and Clayton Acts were
enacted."
Ante at
434 U. S. 312.
Despite this conclusion as to the absence of any congressional
consideration, the inviting possibility of treble damages is
extended today by judicial action to the sovereign nations of the
world. [
Footnote 3/1] With minor
exceptions, the United States recognizes the governments of all of
these nations. We may assume that most of them have no equivalent
of our antitrust laws, and would be unlikely to afford reciprocal
opportunities to the United States to sue and recover damages in
their courts.
The Court has resolved a major policy question. As the Acting
Solicitor General stated in his Memorandum for the United States as
Amicus Curiae, filed March 23, 1977:
"Whether foreign sovereigns are 'persons' entitled to sue under
Section 4 depends largely upon the general policy reflected in the
statute, and the general policy of the United States opening its
courts to foreign sovereigns."
I had thought it was accepted doctrine that questions of
"general policy" -- especially with respect to foreign sovereigns
and absent explicit legislative authority -- are beyond the
province of the Judicial Branch. If the statute truly reflected a
general policy that dictated the inclusion of foreign sovereigns,
the Court might be justified in reaching today's result. In
Georgia v. Evans, 316 U. S. 159
(1942), a clear policy to protect the States of the Union was
reflected in the antitrust laws and in the legislative history. The
Court could
"perceive no reason for believing that Congress wanted to
deprive a State, as purchaser of commodities shipped in interstate
commerce, of the civil remedy of treble damages which is
available
Page 434 U. S. 331
to other purchasers who suffer through violation of the
Act."
Id. at
316 U. S.
162.
Unlike the majority, I do not believe the same can be said wit h
respect to foreign sovereigns.
See ante at
434 U. S. 318.
It is not only the absence of specific congressional intent to
include them. It is that the predicate for the Court's approach in
Georgia v. Evans is not present in the case before us. The
solicitude that we assume Congress has for the welfare of each of
the United States, especially when the subject matter of
legislation largely has been removed from the competence of the
States and has been entrusted to the United States, cannot be
assumed with respect to foreign nations. Putting it differently, it
was not illogical for the
Evans Court to include the
States within the reach of § 4, but it is a quantum leap to include
foreign governments.
A court, without the benefit of legislative hearings that would
illuminate the policy considerations if the question were left to
Congress, is not competent in my opinion to resolve this question
in the best interest of our country. It is regrettable that the
Court today finds it necessary to rush to this essentially
legislative judgment. [
Footnote
3/2]
[
Footnote 3/1]
At present, there are 162 sovereign nations.
[
Footnote 3/2]
The Court quotes a letter to the effect that "the Department of
State would not anticipate any
foreign policy problems" if
§ 4 were held to embrace suits by foreign governments.
Ante at
434 U. S. 319
n. 20 (emphasis supplied). But resolution of the issue here depends
not only upon foreign policy considerations, but also upon
considerations relevant to the general welfare of the United
States. The latter are quite beyond the concern of the Department
of State, and should be considered by the Legislative Branch. The
international business conducted by American corporations has
economic and social ramifications of great importance to our
country.