PLAINTIFF PERSPECTIVE: THE LONG ARM OF STATE ANTITRUST LAW

By Marc A. Pilotin¹

I. INTRODUCTION AND OVERVIEW

As manufacturing of consumer products and their component parts continues to move offshore,² consumers face a greater risk of suffering injuries resulting from anticompetitive conduct occurring outside of the United States.³ The antitrust docket in the Northern District of California speaks to this point. From TFT-LCD panels to memory chips to optical disk drives to lithium-ion rechargeable batteries, the District has seen numerous consumer lawsuits for damages arising from alleged price-fixing of consumer-product components.⁴ Each of these cases has involved international cartels.

To recover damages against such cartels, however, aggrieved consumers who purchased products containing price-fixed components (i.e., finished products) generally must turn to state antitrust statutes because of the bar on indirect purchaser recovery under the Sherman Act.⁵ Many state antitrust regimes permit indirect purchasers to sue for damages resulting from anticompetitive conduct.⁶ And the fact that state antitrust laws provide relief where its federal counterpart does not is acceptable. As the U.S. Supreme Court recognized, the federal antitrust regime was intended "to supplement, not displace, state antitrust remedies."⁷

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But as state antitrust laws are increasingly being used to target offshore anticompetitive conduct, courts have grappled with the precisely how far these statutes reach. While antitrust defendants have attempted to muddle the analysis, as explained further below, the requisite analysis is simply whether—like the extraterritorial application of any state statute—applying the state law offends due process or that state’s choice-of-law principles in light of the challenged conduct. As the Ninth Circuit recently elaborated in the context of California’s Cartwright Act, so long as

a defendant’s conspiratorial conduct is sufficiently connected to California, and is not ‘slight and casual,’ the application of California law to that conduct is ‘neither arbitrary nor fundamentally unfair,’ and the application of California law does not violate that defendant’s rights under the Due Process Clause.⁸

With respect to choice-of-law considerations, while states have adopted varying analyses, such analyses typically consider whether the state has a "significant relationship" to the conduct or, alternatively, whether the state has a "government interest" in proscribing it.⁹ Contrary to antitrust defendants’ views,¹⁰ neither the Foreign Antitrust Improvements Act of 1982 ("FTAIA"), the dormant Foreign Commerce Clause, nor notions of international comity limit state antitrust laws to domestic conduct.

State antitrust laws constitute one of the only protections consumers have against international cartels. As long as applying these laws to an international cartel’s anticompetitive conduct does not violate due process or choice-of-law principles, consumers should be entitled to obtain relief under them.

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II. STATE ANTITRUST LAW, LIKE OTHER STATE STATUTORY AND COMMON LAW REGIMES, REACHES AS FAR AS DUE PROCESS AND CHOICE-OF-LAW PRINCIPLES ALLOW

As explained in our high school civics class, in our federal system, the states have a "general power of governing,"¹¹ unlike our federal government, which is one "of limited powers."¹² Pursuant to its "numerous and indefinite" powers,¹³ a state need not have federal permission to act, so long as it remains within the bounds imposed by the U.S. Constitution.¹⁴

Against this grade school backdrop, there is nothing remarkable about state antitrust law reaching conduct outside of the United States. State tort law has regularly applied to conduct occurring abroad, including with respect to products liability,¹⁵ trade secret misappropriation,¹⁶ and injuries resulting from terrorist attacks.¹⁷ It is also well settled that states can regulate foreign entities through their respective tax regimes, even if those regimes sweep in conduct occurring abroad,¹⁸ and through requiring foreign ships operating outside the state’s territorial waters to use certain fuels.¹⁹ Indeed, as the U.S. Supreme Court has restricted extraterritorial application of certain federal laws, primarily based on the judicially-created presumption that Congress did not intend for federal laws to extend extraterritorially,²⁰ commentators have pointed to corresponding state laws as alternative avenues for relief.²¹

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This is not to say that a state’s power to reach conduct occurring abroad is limitless. The Due Process Clause of the United States Constitution constrains the extent to which state laws reach international conduct.²² Due process requires that "’for a State’s substantive law to be selected [and applied to a particular case] in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’"²³

Ultimately, however, the restraints due process imposes are "only modest," with the Ninth Circuit finding that "most commentators have viewed" the analysis as "setting a highly permissive standard."²⁴ The "Due Process Clause . . . requires a court to invalidate the application of a state’s law only where the state has no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction."²⁵ Thus, as the Ninth Circuit has observed, a "’state court is rarely forbidden by the Constitution to apply its own state’s law.’"²⁶

The due process analysis was recently applied in AT&T Mobility LLC v. AU Optronics Corp, in which the Ninth Circuit held that California’s Cartwright Act could apply to out-of-state purchases affected by the foreign antitrust conspiracy at issue in In re TFT-LCD (Flat Panel) Antitrust Litigation.²⁷ There, the district court dismissed the plaintiffs’ claims under the Cartwright Act, holding that its application would violate due process because the plaintiffs’ purchases of allegedly price-fixed goods took place outside of California.²⁸ The Ninth Circuit held that this conclusion erroneously and "severely truncates the scope of anticompetitive conduct that the [Cartwright] Act proscribes."²⁹

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Due process, the AT&T court reasoned, permitted the Cartwright Act to reach much further. The court explained,

The Cartwright Act can be lawfully applied without violating a defendant’s due process rights when more than a de minimis amount of that defendant’s alleged conspiratorial activity leading to the sale of price-fixed goods to plaintiffs took place in California.³⁰

Thus, while the defendants’ sale of the price-fixed products in California may satisfy due process concerns, so will in-state conduct that constitutes "more than a de minimis amount" of the alleged conspiratorial activity, even if the conspiracy was primarily foreign in nature.³¹

In addition to satisfying federal due process considerations, the application of a state’s substantive law must comport with that state’s choice-of-law principles. For instance, California applies the "governmental interest approach" to identify the law of decision, which requires

(1) determining if the foreign law "materially differs" from California law; (2) and if so, next determining each respective state’s interest in application of its law; (3) and finally, if the laws materially differ and both states have an interest in the litigation, selecting the law of the state whose interest would be "more impaired" if its law were not applied.³²

With respect to the second consideration, California "has a manifest interest in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors."³³ Thus, when considering whether a California consumer may apply the Cartwright Act to conduct occurring outside the state, a court need only consider the first and third factors.

Accordingly, while state antitrust statutes may be applied to offshore conduct, like other state laws, there must be some connection between the foreign conspiracy and the forum state. Moreover, that state’s choice-of-law doctrine must support application of the state’s substantive law. As explained further below, outside of express statutory limits set by the state, these are the primary constraints on applying state antitrust law to foreign conduct.

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III. CONGRESS HAS NOT PREVENTED APPLICATION OF STATE ANTITRUST LAW TO FOREIGN CONDUCT

Likely because due process and choice-of-law principles do not erect substantial barriers to applying state antitrust statutes to anticompetitive conspiracies occurring abroad, antitrust defendants have turned to the FTAIA to place limits on them. However, nothing in the FTAIA suggests that Congress intended for the statute—which, by its own terms, applies only to the Sherman Act and the Federal Trade Commission ("FTC") Act³⁴—to constrain state antitrust law. This conclusion is reinforced further by the presumption that federal law does not preempt state statutes.³⁵ Thus, while the Supremacy Clause grants Congress the power to restrict state antitrust law,³⁶ it has not yet done so.

A. Legislative History of the FTAIA

The FTAIA originated in a package of laws Congress passed "[t]o encourage exports by facilitating the formation and operation of export trading companies, export trade associations and the expansion of export trade services generally."³⁷ The package contained three new statutory schemes that addressed antitrust laws. Two of the three—the Export Trading Company Act of 1982 and a title concerning "Export Trade Certificates of Review"—addressed "antitrust laws," defining the term to mean both federal and state antitrust or unfair competition law.³⁸ The FTAIA, by contrast, specifically addressed only the Sherman Act and the FTC Act.³⁹

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In passing the law, Congress expressed no interest in limiting state antitrust law as it applied to conduct outside of the United States. Instead, Congress intended for the FTAIA to address an "apparent perception among businessmen that American antitrust laws are a barrier to joint export activities that promote efficiencies in the export of American goods and services."⁴⁰ Specifically, Congress wanted

to make clear to American exporters (and to firms doing business abroad) that the Sherman Act does not prevent them from entering into business arrangements (say, joint-selling arrangements), however anticompetitive, as long as those arrangements adversely affect only foreign markets.⁴¹

Congress also sought to eliminate the "possible ambiguity in the precise legal standard to be employed in determining whether American antitrust law is to be applied to a particular transaction."⁴²

B. The FTAIA Does Not Preempt State Law in Any Way

For the FTAIA to preempt or limit a state antitrust statute, at least one of three circumstances must exist: (1) Congress expressly provided for such preemption or limits, (2) Congress determined that the field of antitrust law "must be regulated by its exclusive governance," or (3) the state antitrust law actually conflicts with the FTAIA.⁴³ These three types of preemption are commonly known as "express, field, and conflict preemption, respectively."⁴⁴

Irrespective of which form of preemption is at issue, congressional intent controls.⁴⁵ Determining congressional intent must always begin "’with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’"⁴⁶ "So long as Congress has set foot in a ‘field which the States have traditionally occupied,’ the presumption applies."⁴⁷ This presumption is particularly strong in the context of state consumer-protection laws, like the Cartwright Act, which "fall in an area that is traditionally within the state’s police powers to protect its own citizens."⁴⁸

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As explained further below, there is no clear congressional intent for the FTAIA to limit state antitrust law. And, because state antitrust law occupies an area traditionally within the states’ powers to regulate, the general presumption against preemption applies.

1. Rather Than Expressly Limit the Scope of State Antitrust Statutes, the FTAIA’s Plain Language Expressly Restricts Its Application to the Sherman Act and the FTC Act

The "’text of the provision in question’" is paramount in considering whether preemption applies.⁴⁹ The FTAIA’s plain language works against any claim that the statute applies to state antitrust law.

The FTAIA unambiguously restricts its application to the Sherman Act and the FTC Act.⁵⁰ To be certain, the statute specifically enumerates the sections to which it applies and fails to refer to state law, meaning that Congress purposefully excluded state laws from the FTAIA’s reach⁵¹

This is reinforced by another principle of statutory interpretation: Congress has expressly limited state antitrust laws in other federal statutes it passed before and along with the FTAIA. When other laws show that Congress knows how to address a subject in clear terms, Congress’ failure to address that subject in a particular act is regarded as intentional. As one circuit court explained,

[W]hen Congress remains silent regarding the preemptive effect of its legislation on state laws it knows to be in existence at the time of such legislation’s passing, Congress has failed to evince the requisite clear and manifest purpose to supersede those state laws.⁵²

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At the time it enacted the FTAIA, Congress was fully aware of state antitrust laws and knew how to restrict them, but was silent about such laws in the FTAIA. Indeed, concurrent with passing the FTAIA, Congress passed two other laws relating to exports that specifically encompassed state antitrust and unfair competition laws.⁵³ And, prior to passing the FTAIA, Congress did the same, passing two laws that limited liability under federal and state antitrust laws.⁵⁴ Congress clearly knew how to limit state antitrust statutes, and chose not to with respect to the FTAIA. This is "powerful evidence" that Congress did not intend for the FTAIA to reach state laws.⁵⁵

2. Because Congress Has Not Occupied the Field of Antitrust Law, the FTAIA Cannot Limit State Antitrust Statutes Based on Field Preemption

There is likewise no compelling evidence that the FTAIA applies to state antitrust law because Congress preempted the field. Field preemption applies in two circumstances: (1) when federal regulation is "so pervasive . . . that Congress left no room for the States to supplement it" or (2) "where there is a federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject."⁵⁶

The Supreme Court has already held that "Congress has not pre-empted the field of antitrust law."⁵⁷ Instead, as mentioned above, Congress intended to leave the field open to state regulation, specifically providing that "the federal antitrust laws . . . supplement, not displace, state antitrust remedies."⁵⁸ Courts have repeatedly rejected field preemption of state consumer protection laws because this field has been historically occupied by the states, not Congress.⁵⁹ Congress neither has a "dominant interest" in antitrust nor has Congress so pervasively regulated that the States have no room to act. Field preemption therefore does not apply, particularly in light of the presumption against preemption.

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3. Because State Antitrust Law Does Not Conflict with the FTAIA, Conflict Preemption Does Not Apply

Finally, there is no clear evidence that state antitrust law conflicts with the FTAIA. Conflict preemption takes "two forms: impossibility and obstacle preemption."⁶⁰

Impossibility preemption applies "’where it is impossible for a private party to comply with both state and federal law.’"⁶¹ The FTAIA does not require or prohibit any particular conduct. Thus, impossibility preemption does not apply.

Obstacle preemption is also inapplicable. This form of conflict preemption applies if a state law creates "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."⁶² "What is a sufficient obstacle is a matter of judgment, to be informed by the examining the federal statute as a whole and identifying its purposes and intended effects."⁶³ One must take "into account the law’s text, application, history, and interpretation."⁶⁴ The burden to establish obstacle preemption is "heavy." As a result, courts have generally relied on multiple sources to hold that a clear and manifest purpose existed to preempt conflicting state law.⁶⁵ Obstacle preemption does not apply "unless the repugnance or conflict is so direct and positive that the two acts cannot be reconciled or consistently stand together."⁶⁶

As explained above, Congress intended for the FTAIA to address American exporters’ purported uncertainty regarding the effect federal antitrust laws had on their joint activity abroad. The FTAIA’s text reflects its limited purposes. As already explained, the FTAIA lacks any language suggesting that Congress had any intention to eliminate this uncertainty, which it viewed skeptically,⁶⁷ by limiting state antitrust law or broadly immunizing companies from state antitrust liability. The law explicitly states that it applies only to the Sherman Act and the FTC Act. And, as noted above, the FTAIA’s silence with respect to state laws is particularly telling because, prior to the law’s enactment, Congress readily passed legislation that specifically limited state antitrust law.⁶⁸ Reading the FTAIA to reach state antitrust law would require reading into the statute language that Congress was aware of, but omitted.

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The FTAIA’s legislative history also does not reveal a clear and manifest purpose of limiting state law. Mirroring the statute’s text, the FTAIA’s legislative history is devoid of any references to state law. At most, a House Judiciary Committee report on the law ambiguously refers to "United States antitrust law" and "American antitrust law, ⁶⁹ which could arguably be interpreted to include state antitrust law. But other portions of that report foreclose this interpretation. The Committee report states that the FTAIA as then drafted was intended to "amend the Sherman Act, the Clayton Act, and the Federal Trade Commission Act."⁷⁰ Thus, references to "United States antitrust law," when read in the context of the entire report and in conjunction with the FTAIA’s text, are most reasonably interpreted to refer to federal antitrust law only.

The U.S. Supreme Court’s recent decision in Wyeth is on point. There, a drug manufacturer asserted that a state-law requiring a "stronger warning" about the manufacturer’s drug obstructed Congress’ purported intent to "entrust an expert agency to make drug labeling decisions that strike a balance between competing objectives."⁷¹The Court disagreed, finding support in the fact that the purportedly conflicting federal law was intended "to bolster consumer protection," that Congress was aware of state law that posed tensions but never enacted an express preemption provision, and that Congress had preempted state law with respect to medical devices, but not with respect to prescription drugs.⁷²

As Wyeth teaches, obstacle preemption does not apply to state antitrust law.⁷³ As the Supreme Court explained in Wyeth:

The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.⁷⁴

As in Wyeth, the Sherman Act was intended to supplement state law, Congress knew that there were potentially conflicting state laws at the time the FTAIA was passed, and Congress had limited state antitrust law in other contexts. Given that Congress was readily aware of analogous state antitrust regimes, the assertion that the FTAIA limits state antitrust law is particularly weak.

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IV. APPLYING STATE ANTITRUST LAW TO CONDUCT OCCURRING ABROAD DOES NOT INTERFERE WITH CONGRESS’S POWER TO REGULATE FOREIGN COMMERCE

In addition to arguing that the FTAIA limits state antitrust law, antitrust defendants often also invoke Congress’ dormant powers under the Foreign Commerce Clause. Some commentators, however, have viewed the dormant Foreign Commerce Clause doctrine to be largely defunct⁷⁵ and have criticized it as "yield[ing] few criteria for meaningfully distinguishing conduct by states that can, or cannot, be tolerated."⁷⁶ Indeed, the First Circuit deemed the Clause to be a "complex and largely undeveloped area of constitutional law."⁷⁷ However, irrespective of whether the doctrine persists, Congress’ knowledge of state antitrust statutes and its corresponding failure to restrict them dooms any challenge under the Foreign Commerce Clause.

Challenges under the dormant Foreign Commerce Clause require courts to first evaluate whether the Interstate Commerce Clause is violated.⁷⁸ Such an inquiry is readily answered with respect to state antitrust statutes: the "Supreme Court has made clear that neither the Sherman Act nor the Commerce Clause preempts state antitrust laws."⁷⁹

Thus, in determining whether Congress’ dormant Foreign Commerce Clause powers limit state antitrust law, the only consideration is whether "the federal government’s ‘capacity to speak with one voice when regulating commercial relations with foreign governments.’"⁸⁰ Japan Line, Ltd. v. County of L.A. is the only case in which the Supreme Court has determined that a particular state law impedes the need of the United States to "speak with one voice" in a particular area of foreign commerce.⁸¹ There, the Supreme Court invalidated a state law that levied a tax on foreign containers as they were transiting through California.⁸² The Court believed the state’s taxation could cause foreign nations to "retaliate against American-owned instrumentalities" and cause the "Nation as a whole [to] suffer," causing a dormant Foreign Commerce Clause violation.⁸³

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The Supreme Court refined and restricted its dormant Foreign Commerce Clause doctrine in the two decades following Japan Line. In Barclays Bank PLC v. Franchise Tax Board of California, the Court rejected a challenge under the Clause to California’s taxpayer reporting requirements, even though federal law imposed a different method of reporting taxes.⁸⁴ In reviewing its prior precedent, the Court observed that "Congress may more passively indicate that certain state practices do not ‘impair federal uniformity in an area where federal uniformity is essential.’"⁸⁵ The Court found compelling "Congress’ willingness to tolerate States’ worldwide combined reporting mandates, even when those mandates are applied to foreign corporations."⁸⁶ Such congressional acquiescence, the Court reasoned, meant that Congress’ Foreign Commerce Clause powers were not threatened, eliminating any need for Court intervention.⁸⁷

Moreover, Congress has demonstrated a tolerance for state antitrust law reaching foreign commerce. As already explained, while Congress has restricted federal antitrust liability in the international context,⁸⁸ it has done nothing to limit state antitrust law in the way that it geographically limited the Sherman Act and the FTC Act through the FTAIA. This knowing acquiescence, as Barclays held, shows that Congress’ dormant Foreign Commerce Clause powers are not offended by the foreign application of state antitrust law.

V. NOTIONS OF INTERNATIONAL COMITY DO NOT LIMIT STATE ANTITRUST LAW

Finally, antitrust defendants often seek dismissal of state antitrust claims challenging overseas conspiracies on international comity grounds. Such arguments should also fail.

The doctrine of international comity is "a consideration guiding courts, where possible, towards interpretations of domestic law that avoid conflict with foreign law."⁸⁹ "No conflict exists . . . where a person subject to regulation by two states can comply with the laws of both."⁹⁰

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Comity arguments require a "weighing of all of the relevant interests of all of the nations affected by the court’s decision."⁹¹ Arguments over comity will not insulate a foreign entity that has availed itself of the protection of a jurisdiction’s laws.⁹² Moreover, dismissal on international comity grounds is reserved for "rare (indeed often calamitous) cases in which powerful diplomatic interests of the United States and foreign sovereigns aligned in supporting dismissal."⁹³

Because many other nations condemn anticompetitive conduct and now cooperate to eliminate price-fixing cartels,⁹⁴ applying state antitrust statutes to conduct overseas is unlikely to raise comity concerns. The fact that other nations have laws proscribing anticompetitive dispels the notion that comity is offended by applying similar state antitrust laws abroad.⁹⁵ Indeed, if a foreign actor can comply with state antitrust law without running afoul of the law of the nation in which it resides, there is no conflict that can give rise to comity issues.⁹⁶

VI. CONCLUSION

When relying on state antitrust law to seek damages based on foreign antitrust conspiracies, plaintiffs need only ensure that due process and choice-of-law principles are not offended. The FTAIA, through a preemption theory; the dormant Foreign Commerce Clause; and notions of comity simply do not limit the geographic scope of state antitrust regimes.

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Notes:

^1. Marc A. Pilotin is an associate at Lieff Cabraser Heimann & Bernstein, LLP. He is grateful for the insightful guidance of Brendan P. Glackin on this topic. He also appreciates the suggestions and edits of Eric P. Enson..

^2. See, e.g., Susan Housemann et al., Offshoring Bias in U.S. Manufacturing, 25 J. of Econ. Perspectives 111, 113 (2011) (finding "dramatic rise in imports of manufactured goods, which more than doubled from 1997 to 2007").

^3. See, e.g., D. Daniel Sokol, Monopolists Without Borders: The Institutional Challenge of International Antitrust in a Global Gilded Age, 4 Berkeley Bus. L.J. 37, 44 (2008) ("Increased globalization has opened markets to anticompetitive conduct by foreign actors or exported anticompetitive practices to other countries."); S. Hammond, The Evolution of Criminal Antitrust Enforcement Over the Last Two Decades (Feb. 25, 2010), available at http://www.justice.gov/atr/public/speeches/255515. htm (attributing exponential increase in criminal fines in part to "the Antitrust Division’s reallocation of resources to focus on international cases involving larger volumes of commerce").

^4. See, e.g., In re TFT-LCD (Flat Panel) Antitrust Litig., No. M 07-1827 SI (N.D. Cal.); In re Static Random Access Memory (SRAM) Antitrust Litig., No. M 07-1819 CW (N.D. Cal.); In re Optical Disk Drive Prods. Antitrust Litig., No. M 10-2143 RS (N.D. Cal.); In re Lithium Ion Batteries Antitrust Litig., No. M 13-2420 YGR (N.D. Cal.).

^5. See Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). The Illinois Brick bar is subject to various exceptions. See Lotes v. Hon Hai Precision Indus. Co., Ltd., ___ F.3d ___, 2014 U.S. App. LEXIS 10521, at *47 n.7 (2d Cir. June 4, 2014) (noting that the "indirect purchaser doctrine . . . is subject to exceptions"). Moreover, in a recent amicus brief, the Department of Justice, Antitrust Division and the Federal Trade Commission have suggested that, where direct purchasers cannot recover under the Sherman Act based on a failure to meet the "gives rise to" requirement of the Foreign Trade Antitrust Improvements Act of 1982, "it may be that indirect purchasers whose claims do arise from the effect on U.S. commerce can recover damages because full recovery cannot be concentrated in the direct purchaser and duplicative recoveries are not possible." Br. for the U. S. & the Fed. Trade Comm’n as Amici Curiae in Support of Panel Rehearing or Rehearing En Banc at 14 n.2, Motorola Mobility LLC v. AU Optronics, Corp., No. 14-8003 (7th Cir.) (ECF No. 30).

^6. See, e.g., Clayworth v. Pfizer, Inc., 233 P.3d 1066, 1082 (Cal. 2012) (noting that the Cartwright Act contains "a repudiation of Illinois Brick’s ban on indirect purchaser suits, allowing suit by any injured person ‘regardless of whether such injured person dealt directly or indirectly with the defendant’") (quoting Cal. Bus. & Prof. Code § 16750(a)).

^7. California v. ARC Am. Corp., 490 U.S. 93, 102 (1989) ("Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies.")

^8. AT&T Mobility LLC v. AU Optronics Corp., 707 F.3d 1106, 1107 (9th Cir. 2013) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981)).

^9. See Restatement (Second) of Conflict of Laws § 145(1) (in choice-of-law analysis, favoring state with "significant relationship to the occurrence," considering "the place where the injury occurred"); Carijano v. Occidental Petrol. Co., 643 F.3d 1216, 1233 (9th Cir. 2011) (outlining California’s "’governmental interest approach,’" which is used to "determine choice of law in the absence of an effective choice-of-law agreement").

^10. See, e.g., In re Intel Microprocessor Antitrust Litig., 476 F. Supp. 2d 452, 457-58 (D. Del. 2008); Defs.’ Jt. Mot. to Dismiss at 15-18, Motorola, Inc. v. AU Optronics Corp., No. 09-5840 SI (N.D. Cal. Feb. 23, 2010) (ECF No. 26).

^11. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2578 (2012) (citation and quotation marks omitted).

^12. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).

^13. Id. at 457-58 (citation and internal quotation marks omitted).

^14. Sebelius, 132 S. Ct. at 2578 (noting that the "Constitution may restrict state governments . . . where such prohibitions do not apply, state governments do not need constitutional authorization to act).

^15. See, e.g., Spin Star AG v. Kimich, 310 S.W.3d 868 (Tex. 2010); Sproul v. Rob & Charlies, Inc., 304 P.3d 18 (N.M. Ct. App. 2012); Russell v. SNFA, 965 N.E.2d 1 (Ill. App. Ct. 2011).

^16. See, e.g., Twister B. V. v. Newton Research Partners, LP, 364 S.W.3d 428 (Tex. Ct. App. 2012)

^17. See, e.g., Owens v. Republic of Sudan, 826 F. Supp. 2d 128, 154-55 (D.D.C. 2011) (applying District of Columbia common law); Wyatt v. Syrian Arab Republic, 398 F. Supp 2d 131, 139-41 (D.D.C. 2005) (applying Tennessee and Texas law)

^18. Barclays Bank PLC v. Franchise Tax Bd. Of Cal., 512 U.S. 298 (1994) (approving California tax regime that required foreign companies to pay taxes based on foreign commerce, even though it was inconsistent with federal law); Wardair Canada Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1, 4 (1986) (state tax on fuel used by foreign airline exclusively in foreign commerce).

^19. Pac. Merch. Shipping Ass’n v. Goldstene, 639 F.3d 1154, 1177 (9th Cir. 2011).

^20. See, e.g., Kiobel v. Royal Dutch Petrol. Co., 133 S. Ct. 1659 (2013) (limiting extraterritorial applicability of Alien Tort Statute); Morrison v. Nat’l Aust. Bank. Ltd., 130 S. Ct. 2869 (2010) (limiting the same with respect to claims under section 10(b) of the Securities Exchange Act of 1934).

^21. See, e.g., Jeffrey A. Meyer, Extraterritorial Common Law: Does the Common Law Apply Abroad?, 102 Geo. L. J. 301, 306 (arguing "against imposing new limits on the international extraterritorial application of state common law"); Roger P. Alford, The Future of Human Rights Litigation After Kiobel, 89 Notre Dame L. Rev. 1749, 1749-50 (2014) (opining that "the future of human rights litigation in the United States depends on refashioning human rights claims as state . . . tort violations"); Katherine Florey, State Law, U.S. Power, Foreign Disputes: Understanding the Extraterritorial Effects of State Law in the Wake of Morrison v. National Australia Bank, 92 B.U.L. Rev. 535, 538 (2012) (noting that "current law sharply restricts the applicability of federal law to cases with some substantial component, while imposing virtually no limit on states’ abilities to apply their longs so long as some tenuous connection exists between the state and the case").

^22. See, e.g., Gary B. Born & Peter B. Rutledge, Int’l Civil Litig. in U.S. Courts 590 (4th ed. 2007).

^23. Experience Hendrix L.L.C. v. Hendrixlicensing.com L.L.C., 742 F.3d 377, 384 (9th Cir. 2014) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981)).

^24. AT&T Mobility LLC, 707 F.3d at 1111 (citing Philips Petrol. Co. v. Shutts, 472 U.S. 797, 818 (1985); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217, 1240 (1992); Russell J. Weintraub, Who’s Afraid of Constitutional Limitations on Choice of Law?, 10 Hofstra L. Rev. 17, 17 (1981)).

^25. AT&T Mobility LLC, 707 F.3d at 1111.

^26. Id. at 1113 (quoting Sullivan v. Oracle Corp., 662 F.3d 1265, 1271 (9th Cir. 2011)); see also id. at 1111 (the "Due Process Clause . . . requires a court to invalidate the application of a state’s law only where the state has no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.)

^27. Id. at 1113-14; see also United States v. Hsiung, ___ F.3d ___, 2014 U.S. App. LEXIS 13051 (9th Cir. July 10, 2014) (explaining conspiracy).

^28. AT&T Mobility LLC, 707 F.3d at 1109.

^29. Id. at 1110.

^30. Id. at 1113.

^31. See id. at 1113-14.

^32. Carijano, 643 F.3d at 1233 (applying California choice-of-law principles to dispute involving conduct in Peru) (citing Wash. Mut. Bank v. Superior Court, 15 P.3d 1071, 1080 (Cal. 2001)).

^33. Vons Cos., Inc. v. Seabest Foods, Inc., 926 P.2d 1085, 1093 (Cal. 1996) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-74 (1985)).

^34. Pub. L. No. 97-290, §§ 402-403, 96 Stat. 1233, 1246-47 (1982) (amending the Sherman Act and the FTC Act) (codified at 15 U.S.C. §§ 6a, 45(a)) ; see also S. Rep. No. 97-644 ("Senate Rpt."), at 29 (1982) (stating that the FTAIA’s provisions "modify the Sherman Act and Section 5 of the Federal Trade Commission Act").

^35. See, e.g., Aguayo v. U.S. Bank, 653 F.3d 912, 918 (9th Cir. 2011).

^36. See Arizona v. United States, 132 S. Ct. 2492, 2500 (2012).

^37. Pub. L. No. 97-290, 96 Stat. 1233 (1982).

^38. Export Trading Company Act of 1982, Pub. L. No. 97-290, § 103(a)(7), 96 Stat. at 1235 (defining "antitrust laws" to mean "the antitrust laws as defined in subsection (a) of the first section of the Clayton Act, section 5 of the Federal Trade Commission Act to the extent that section 5 applies to unfair methods of competition, and any State antitrust or unfair competition law") (citations omitted and emphasis added); id. § 311(6), 96 Stat. at 1245 (defining "antitrust laws" similarly).

^39. Pub. L. No. 97-290, §§ 402-403, 96 Stat. at 1246-47; see also S. Rep. No. 97-644, at 29 (1982) (stating that the FTAIA’s provisions "modify the Sherman Act and Section 5 of the Federal Trade Commission Act"). Even with regard to federal law, the FTAIA’s scope was more limited than the other laws with which it was passed. Unlike the Export Trading Company Act and the title regarding Export Trade Certificates of Review, the FTAIA ultimately did not refer to or amend the Clayton Act. Boyd v. AWB Ltd., 544 F. Supp. 2d 236, 247 (S.D.N.Y. 2008) (concluding that the FTAIA did not apply to the Clayton Act).

^40. H.R. Rep. No. 97-686 at 2 (1982).

^41. F. Hoffmann-La Roche Ltd v. Empagran S.A., 542 U.S. 155, 161 (2004)

^42. H.R. Rep. No. 97-686 at 5. The House Report on the FTAIA repeatedly referred to "United States antitrust jurisdiction" and "American antitrust law." See, e.g., H.R. Rep. No. 97-686 at 2, 5. This is because, as noted above, the FTAI A amended not only the Sherman Act, but also the FTC Act.

^43. Arizona, 132 S. Ct. at 2500-01; see also Aguayo, 653 F.3d at 918 (citation and internal quotation marks omitted).

^44. Aguayo, 653 F.3d at 918.

^45. Id. ("Regardless of the name attached to the type of preemption, the dispositive issue in any federal preemption question remains congressional intent.")

^46. Id. (quoting Wyeth v. Levine, 555 U.S. 555, 565 (2009)).

^47. McDaniel v. Wells Fargo Invs., LLC, 717 F.3d 668, 675 (9th Cir. 2013) (quoting Wyeth, 555 U.S. at 565).

^48. Aguayo, 653 F.3d at 917.

^49. Air Cond. & Refrig. Inst. v. Energy Res. Conserv. & Dev. Comm’n, 410 F.3d 492, 495 (9th Cir. 2005) (quoting N.Y. State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) ).

^50. 15 U.S.C. § 6a (referring to "Sections 1 to 7 of this title"); id. § 45(a)(3) (applying FTAIA standard to "[t]his subsection")

^51. See ARC Ecology v. U.S. Dep’t of the Air Force, 411 F.3d 1092, 1099-1100 (9th Cir. 2005) (explaining that "the doctrine of expressio unius est exclusio alterius . . . teaches that omissions are the equivalent of exclusions when a statute affirmatively designates certain persons, things, or manners of operation") (citation omitted).

^52. Penn. Med. Soc. v. Marconis, 942 F.2d 842, 850 (3d Cir. 1991) (citing Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 287 (1987)); see also Wyeth, 555 U.S. at 575 (explaining that congressional silence on an issue, coupled with awareness of state litigation, "is powerful evidence" that Congress did not intend for preemption); In re Pharma. Indus. Average Wholesale Price Litig., 582 F.3d 156, 175 (1st Cir. 2009) (rejecting preemption argument because Congress was silent as to state law, even though it "was aware of the existence of state law liability schemes so ubiquitous as common law fraud and consumer protection statutes"); Greene v. Sprint Commc’ns Co., 340 F.3d 1047, 1051 (9th Cir. 2003) (rejecting existence of private right of action under the federal law, reasoning that "Congress knew how to create a private action for violating a regulation when it wanted to"); E. & J. Gallo Winery v. Cantine Rallo, S.P.A., 430 F. Supp. 2d 1064, 1083 (E.D. Cal. 2004) (finding "an examination of similar provisions in other federal laws provides meaningful guidance" to interpretation analysis).

^53. See, supra, note 38 and accompanying text.

^54. See Trade Act of 1974, Pub. L. No. 93-618, § 607, 88 Stat. 1978, 2073 (providing immunity "under the Federal Trade Commission Act or the Antitrust Acts (as defined in section 4 of the Federal Trade Commission Act, or under any similar State law" for participating in agreements limiting exports of steel and steel products to the United States) (codified at 19 U.S.C. § 2485) (1974) (citations omitted); Energy Policy & Conserv. Act of 1975, Pub. L. No. 94-163, § 252(f), 89 Stat. 871, 897 (1975) (providing immunity from "any civil or criminal action brought under the antitrust laws (or any similar State law)" for participation in voluntary agreements regarding petroleum products) (1975) (codified at 42 U.S.C. § 6272(f)(1)). In 2004, Congress did the same, limiting recovery under federal and state antitrust laws for those who enter into an antitrust leniency agreement with the U.S. Department of Justice. Antitrust Crim. Penalty Enhancement & Reform Act of 2004, Pub. L. No. 108-237, § 213(a), 118 Stat. 661 (2004).

^55. Wyeth, 555 U.S. at 575.

^56. Valle Del Sol Inc. v. Whiting, 732 F.3d 1006, 1022-23 (9th Cir. 2013) (citation and internal quotation marks omitted).

^57. ARC Am., 490 U.S. at 101 (citation omitted).

^58. Id. at 102 (citation omitted).

^59. Aguayo, 653 F.3d at 917 (noting that "consumer protection law is a field traditionally regulated by the states") (citation omitted); see also Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1125 (11th Cir. 2004) (rejecting field preemption argument based on finding that "consumer protection is a field traditionally regulated by the states"); Aurora Dairy Corp. Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 794 (8th Cir. 2010) (rejecting field preemption argument, finding that "[c]onsumer protection is quintessentially a field which the States have traditionally occupied") (citation and internal quotation marks omitted).

^60. Whiting, 732 F.3d at 1023.

^61. Id. (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000)).

^62. Chae, 593 F.3d at 943 (citation and internal quotation marks omitted).

^63. Crosby, 530 U.S. at 373.

^64. McDaniel, 717 F.3d at 674.

^65. See, e.g., In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 725 F.3d 65, 101 (2d Cir. 2013) (explaining burden); McDaniel, 717 F.3d at 676 (relying on "statute, rules, the regulatory scheme’s history, the [enforcing] agency’s contemporaneous explanation, and its consistently held interpretive view") (citation and internal quotation marks omitted); Chae, 593 F.3d at 944-50 (relying on congressional statements, statutes, regulatory scheme, and enforcing agency’s interpretation).

^66. MTBE, 725 F.3d at 102 (citation and internal quotation marks omitted).

^67. Although Congress sought to address the American business community’s concerns, it expressed strong skepticism regarding their bases, noting that the assertions "are at best speculative." H.R. Rep. No. 97-686 at 2; see also id. (describing "apparent perception" regarding impact on exports). Congress readily acknowledged that the FTAIA "will not be a panacea for the many problems that may be afflicting American export trade." Id. at 2.

^68. See, supra, note 54.

^69. See, e.g., id. at 5

^70. Id. at 1.

^71. Wyeth, 555 U. S. at 573 (citation and internal quotation marks omitted).

^72. Id. at 574-75.

^73. See also In re Pharma. Industry, 582 F.3d at 174-75 (noting congressional awareness of "the existence of state law liability schemes so ubiquitous as common law fraud and consumer protection statutes" and holding that such schemes were not preempted absent clear congressional intent); MTBE, 725 F.3d at 103 (noting that congressional sensitivity to an issue "hardly establish[es] that that Congress had a ‘clear and manifest intent’ to preempt state tort judgments").

^74. Wyeth, 555 U. S. at 575 (citation and internal quotation marks omitted).

^75. Leanne M. Wilson, Note, The Fate of the Dormant Foreign Commerce Clause After Garamendi and Crosby, 107 Colum. L . Rev. 746, 789 (2007) ("The dormant Foreign Commerce Clause has outlived its usefulness. With the Court favoring a strong preemption model over dormant doctrine, the utility of the dormant Foreign Commerce Clause has diminished."); Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617, 1700 (1997) (noting that Supreme Court’s later decisions on the dormant Foreign Commerce Clause "gutted the essential components of the federal common law of foreign relations").

^76. Sarah H. Cleveland, Crosby and the "One-Voice" Myth in U.S. Foreign Relations, 46 Vill. L. Rev. 975, 984 (2001).

^77. Antilles Cement Corp. v. Fortuno, 408 F.3d 41, 46-47 (1st Cir. 2005).

^78. Goldstene, 639 F.3d at 1177-78; see also Barclays, 512 U.S. at 323 (considering "’one voice’ argument only after determining that the challenged state action was otherwise constitutional").

^79. Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 993 (9th Cir. 2000) (citing ARC Am.).

^80. Goldstene, 639 F.3d at 1178 (quoting Barclays, 512 U.S. at 311).

^81. 441 U.S. 434, 449 (1979); see also Barclays, 512 U.S. at 327; see also Fortuno, 408 F.3d at 46 (noting that the Supreme Court’s "only iterations of [the dormant Foreign Commerce Clause] have come in situations involving state taxation of foreign commerce").

^82. Japan Line, 441 U.S. at 436-37.

^83. Id. at 450-55.

^84. Barclays, 512 U.S. at 301-03.

^85. Id. at 324 (citing Wardair and Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159 (1983)).

^86. Id. at 327.

^87. Id. at 327-28; Mabey Bridge & Shore, Inc. v. Schoch, 666 F.3d 862, 873 n.5 (3d Cir. 2012).

^88. See, supra, notes 37 and 53; 42 U.S.C. § 6272(f) (providing for qualifying "international voluntary agreements" concerning petroleum products a "defense to any civil or criminal action brought under the antitrust laws (or any similar State law)").

^89. Linde v. Arab Bank, PLC, 706 F.3d 92, 111 (2d Cir. 2013).

^90. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 799 (1993).

^91. Linde, 706 F.3d at 111.

^92. See Fed. Treas. Enter. Sojuzplodoimport v. SPI Spirits Ltd., 726 F.3d 62, 82 (2d Cir. 2013).

^93. GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d 1024, 1034 (11th Cir. 2014).

^94. Org. on Econ. Co-Operation & Dev., Hard Core Cartels: Third Report on Implementation of the 1998 Council Recommendation 8-17 (discussing trends in international antitrust enforcement with respect to cartels) (2005), available at http://www.oecd.org/competition/cartels/35863307.pdf; id. at 29-32 (discussing cooperative enforcement efforts).

^95. United States v. Nippon Paper Indus. Co., 109 F.3d 1, 8 (1st Cir. 1997) (finding no comity issues where challenged conduct was illegal under both United States and Japanese law).

^96. Hartford Fire, 509 U.S. at 799.