Re: POL: Reaction to Microsoft Ruling

From: Michael S. Lorrey (
Date: Thu Apr 13 2000 - 06:40:50 MDT

Zero Powers wrote:
> >From: "Michael S. Lorrey" <>
> >
> >Zero Powers wrote:
> > > And so? Your claim, remember, was that "the US has never brought an
> > > anti-trust suit against a foreign company." I have no idea where you
> >got
> > > that from, but I was merely pointing out that that is simply not even
> >close
> > > to being true. The Alcoa case is not the only case where this happened.
> > It
> > > is the landmark case where Judge Learned Hand first held that the
> >Sherman
> > > Act can be used against a foreign company, even if the claimed acts all
> > > occurred outside the US border. There have been *many* others since
> >then.
> > >
> >
> >You claim Alcoa is a foreign company. This is not so, it is an american
> >company.
> The following quote comes from the more recent case of United States v.
> Nippon Paper Industries Co., 109 F.3d 1 (1st Cir. 03/17/1997) 109 F.3d 1,
> 1997.C01.103:
> "In United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945)
> (Alcoa), the Second Circuit, sitting as a court of last resort, see 15
> U.S.C. Section(s) 29 (authorizing designation of a court of appeals as a
> court of last resort for certain antitrust cases), mulled a civil action
> brought under Section One against a Canadian corporation for acts committed
> entirely abroad which, the government averred, had produced substantial
> anticompetitive effects within the United States. The Alcoa court read
> American Banana narrowly; that case, Judge Learned Hand wrote, stood only
> for the principle that "[w]e should not impute to Congress an intent to
> punish all whom its courts can catch, for conduct which has no consequences
> within the United States." Id. at 443. But a sovereign ordinarily can impose
> liability for conduct outside its borders that produces consequences within
> them, and while considerations of comity argue against applying Section One
> to situations in which no effect within the United States has been shown --
> the American Banana scenario -- the statute, properly interpreted, does
> proscribe extraterritorial acts which were "intended to affect imports [to
> the United States] and did affect them." Id. at 444. On the facts of Alcoa,
> therefore, the presumption against extraterritoriality had been overcome,
> and the Sherman Act had been violated. See id. at 444-45."

Ok, point taken. Now counterpoint: OPEC. OPEC is a monopoly. It is
outside the US, and it exercises quite a bit of control over pricing in
many nations, but not in the US, however those prices have significant
effects on prices in the US. The US does nothing about this monopoly.
Looks like capricious enforcement to me..

Mike Lorrey

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