It was once thought that a law passed by one country should have no effect in another jurisdiction. This, it seemed, was a reasonable proposition, well-rooted in the principles of sovereignty, comity, and legitimacy. After all, what right does one country have to impose (even indirectly) the values embedded in its legal system on the citizens of another country?
This basic philosophy, however, has never existed as an absolute. Countries can and do criminalize the behaviour of their citizens, even if the wrongful act occurred in another country. The law of contract in one country may govern the remedies available for a breach that occurred in another. Some Canadian provinces have seen their class action statutes embrace citizens of other provinces. And, it has long been recognized that in certain circumstances the "long arm" of U.S. antitrust statutes may entitle non- U.S. citizens to sue in U.S. courts for certain wrongful activities which took place in the United States.
However, until recently it was thought that U.S. antitrust statutes, namely the Sherman Act1 and the Clayton Act2, did not give foreign plaintiffs a right to sue in the U.S. for alleged anticompetitive conduct that occurred outside of the United States, except in narrow circumstances.
The starting point for a discussion of the ability for foreign plaintiffs to sue in U.S. courts in antitrust matters is generally understood to be the U.S. Supreme Court's decision in American Banana Co. v. United Fruit Co.3 ("American Banana"), where Justice Holmes thought it to be startling to suggest that U.S. antitrust laws could apply to conduct that occurred outside of the United States. According to Justice Holmes:
In the first place, the acts causing the damage were done, so far as appears, outside the jurisdiction of the United States, and within that of other states. It is surprising to hear it argued that they were governed by the act of Congress.4
Justice Holmes concluded:
A conspiracy in this country to do acts in another jurisdiction does not draw to itself those acts and make them unlawful, if they are permitted by the local law. 5
Thus, according to the Court in American Banana, U.S. antitrust laws could have no application to conduct that occurred outside of the United States.
About twenty years later, however, the Supreme Court had an opportunity to revisit its decision in American Banana in U.S. v. Sisal Sales Corporation6 ("Sisal"). Holding that the approach taken in American Banana was too categorical in its outright prohibition of the application of U.S. antitrust laws to foreign conduct, the Court in Sisal relaxed its position, holding that U.S. antitrust laws could apply to foreign conduct where: (a) a conspiracy was entered into in the U.S.; (b) acts in furtherance of the conspiracy were committed in the U.S.; and (c) there was an effect on domestic commerce.7
The approach adopted by the Court in Sisal was followed throughout the United States for the next 20 years, albeit in a number of different formulations, until the U.S. Supreme Court had an opportunity to set out what is commonly referred to as the modern statement of the law in United States v. Aluminum Co. of America8 ("Alcoa"). In Alcoa, the Court held that foreign conduct could give rise to antitrust liability in U.S. courts where a defendant intended to and actually did affect U.S. commerce. As stated by Justice Learned Hand, the "state may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the state reprehends."9
The decision of the Court in Alcoa, which has come to be known as the "effects test" for subject-matter jurisdiction in antitrust matters, had a number of significant consequences, perhaps the most important of which was that foreign plaintiffs were obliged to craft their pleadings and evidence in a manner that alleged and proved that foreign conduct had a domestic effect in the United States and that they suffered harm as a result of that domestic effect.
In 1982, Congress codified the "effects test" along the lines proffered by the Court in Alcoa in the Foreign Trade Antitrust Improvements Act10 (the "FTAIA") which provides:
Sections 1 to 7 of this title shall not apply to conduct involving trade or commerce (other than import trade or commerce) with foreign nations unless:
(1) such conduct has a direct, substantial, and reasonably foreseeable effect
(A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations; or
(B) on export trade or export commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and
(2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section.
Proviso – If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then sections 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States.11
Thus, according to the FTAIA, U.S. antitrust laws do not apply to non-import commerce with foreign nations unless the conduct at issue has a "direct, substantial, and reasonably foreseeable effect" on U.S. trade or commerce, and "such effect gives rise to a claim under" U.S. antitrust laws.
Upon its enactment, the FTAIA was interpreted by U.S. courts as providing that a foreign plaintiff would only have redress to U.S. courts in antitrust matters where the harm suffered by that plaintiff was the result of the effect which a defendant's anticompetitive conduct had on U.S. commerce.
For example, in Den Norske Stats Oljeselskap As v. Heeremac Vof12 ("Statoil"), the Fifth Circuit considered a case in which the plaintiff, a Norwegian oil company that owned and operated oil and gas drilling platforms exclusively in the North Sea, brought an action in the United States against a number of providers of heavy-lift barge services in the Gulf of Mexico, the North Sea and the Far East. The plaintiff alleged that the defendants had conspired to fix prices and to allocate customers, territories and projects, with the effect that the plaintiff was forced to pay inflated prices for heavy-lift barge services in the North Sea. Noting that the plaintiff did not allege that it had purchased any heavy-lift barge services in the United States, nor did the contracts it had entered into with the defendants include any clauses providing that the contract was to be subject to U.S. law, the Court found that it lacked subject-matter jurisdiction.
According to the Court, "the FTAIA states that [U.S.] antitrust laws will not apply to non-import foreign commerce unless (1) such conduct has a direct, substantial, and reasonably foreseeable effect on United States domestic commerce, and (2) such effect gives rise to the antitrust claim".13 While the Court accepted the plaintiff 's contention that the defendants conduct had the necessary effect on U.S. commerce in that it inflated the price of heavy-lift barge services in the Gulf of Mexico, the Court found that the plaintiff had failed to show that this effect on U.S. commerce in any way "gave rise" to its antitrust claim. Rejecting the plaintiff 's argument that the defendants ability to maintain their monopolistic pricing in the Gulf of Mexico due to their overall market allocation scheme (which included agreements regarding their operations in the North Sea) sufficiently linked the plaintiff 's injury to the effect of the defendants anticompetitive conduct on U.S. commerce, the Court stated:
Based on the language...of the FTAIA, the effect on United States commerce – in this case, the higher prices paid by United States companies for heavy-lift services in the Gulf of Mexico – must give rise to the claim that [the plaintiff ] asserts against the defendants. That is, [the plaintiff's] injury must stem from the effect of higher prices for heavy-lift services in the Gulf. We find no evidence that this requirement is met here. The higher prices American companies allegedly paid for the services provided by [the defendants] in the Gulf of Mexico does not give rise to [the plaintiff's claim that it paid inflated prices for [the © 2007 Bennett Jones LLP all rights reserved defendant's] services in the North Sea. This is not to say that any antitrust injury suffered by customers or competitors of [the defendants] that arose from the anticompetitive effect in the Gulf of Mexico cannot be addressed. This means only that, while we recognize that there may be a connection and interrelatedness between the high prices paid for services in the Gulf of Mexico and the high prices paid in the North Sea, the FTAIA requires more than a "close relationship" between the domestic injury and the plaintiff 's claim; it demands that the domestic effect "give rise" to the claim.14
The Court rejected the argument that a plaintiff need only show that the effect of a defendant's conduct on U.S. commerce gave rise to a claim for injury. Rather, unless the domestic effect gave rise to the plaintiff 's injury, "any entities, anywhere, that were injured by any conduct that also had a sufficient effect on United States commerce could flock to United States federal courts for redress, even if those plaintiffs had no commercial relationship with any United States market and their injuries were unrelated to the injuries suffered in the United States".15 In rejecting this approach, the Court concluded that "the plain language of the FTAIA precludes subject matter jurisdiction over claims by foreign plaintiffs against defendants where the situs of the injury is overseas and that injury arises from effects in a non-domestic market".16
Since the decision in Statoil, however, it would appear that there has been a substantial shift in the application of the FTAIA in at least two important U.S. Circuits. In both the Second Circuit and the D.C. Circuit, it can now be argued that a foreign plaintiff who has suffered injury as a result of an anticompetitive act may be entitled to commence an action in U.S. courts as long as the defendant is responsible for an anticompetitive act that has had an effect on U.S. commerce, regardless of whether the harm suffered by the foreign plaintiff is directly linked to the effect of the defendant's conduct on commerce in the United States. In other words, a global price fixing conspiracy, whereby the conspirators agree on pricing in various geographic markets across the world, may give rise to a cause of action under U.S. antitrust law so long as one of the affected markets is the United States, even though the harm suffered by the plaintiff was not as a result of the anticompetitive effects in the U.S.
The first case to sound the alarm bells was Kruman v. Christie's International plc17 ("Kruman"). In Kruman, a group of plaintiffs brought a class action suit alleging that they had suffered injury as a result of an agreement between the two largest auction houses in the world to fix the prices they charged their clients for auctioneer services in the United States and the United Kingdom. The defendants objected, and relying on the decision in Statoil, argued that the Court lacked jurisdiction to hear the matter since the plaintiffs had only purchased goods from the defendants auction houses in the U.K., and as such the plaintiffs had not suffered an injury which stemmed from conduct having an effect on U.S. commerce.
The Court in Kruman disagreed. According to Circuit Judge Katzmann, an interpretation of the FTAIA which requires that the requisite effect on U.S. commerce be the cause of the plaintiff 's injury "cannot be reconciled with the unambiguous text"18 of the statute. In the first place, according to the Court, an interpretation which is centred on whether the plaintiff has suffered domestic injury would be to extend the element of injury beyond the scope in which it was intended to be used in the FTAIA:
The statute only refers to the word "injury" once and does so in the context of conduct with an effect on non-domestic export markets...This injury element, on its face, applies only to a subset of the conduct covered by the FTAIA. The defendants, though, would have us apply an injury requirement not only to that narrow category of export-related conduct, but to all conduct within the ambit of the FTAIA. However, if the main provisions of the FTAIA were interpreted as the defendants propose – as allowing a remedy only for domestic injury caused by anticompetitive conduct directed at foreign markets – then the proviso [to the FTAIA] would be superfluous.19
Further, the Court reasoned, imposing on the FTAIA a broader injury requirement than is supported by its text would be to assume that the statute, which is an amendment to the Sherman Act, was intended to determine which plaintiffs have the right to bring a private antitrust action. This, according to the Court, would be to conflate the Sherman Act with the Clayton Act, which is the statute that determines whether a plaintiff may bring a private antitrust action based on their actual or threatened injury. The Court held:
Generally, in the antitrust context, the issue of whether a plaintiff has suffered an injury is only relevant to the Clayton Act. The Sherman Act primarily deals with defendants. It defines substantive standards that prohibit certain forms of anticompetitive conduct by defendants. The Clayton Act deals with plaintiff s. It sets forth the requirement that a plaintiff must suffer an injury or be threatened with an injury caused by a Sherman Act violation in order to bring suit. The conduct and injury requirements of the Sherman and Clayton Acts operate independently...The text of the FTAIA clearly reveals that its focus is not on the plaintiff 's injury but on the defendant's conduct, which is regulated by the Sherman Act. The FTAIA does not regulate which plaintiffs can bring suit under the Clayton Act, and it would be inappropriate to import the element of injury from the Clayton Act and graft it into the FTAIA.20
Initially, one might have dismissed Kruman as being exceptional and unlikely to be followed. After all, it is difficult to find a legal issue in the U.S. where all courts have rendered a consistent judgment. However, antitrust organizations and practitioners world-wide are taking a long and hard look at the decision in Kruman now that the Court of Appeals for the D.C. Circuit has, at least in part, agreed.
On January 17, 2003, the D.C. Circuit Court of Appeals in Empagran S.A. v. F. Hoff man LaRoche21 ("Empagran"), attempted to strike a balance between Statoil and Kruman.
In Empagran, a group of foreign plaintiffs brought a class action suit against a number of defendant vitamin companies, alleging that the defendants had entered into a long-running conspiracy with the purpose and effect of fixing prices, allocating market share, and committing other unlawful practices designed to inflate the prices of various vitamins sold to the plaintiffs and other purchasers both within and outside the United States. The particular plaintiffs before the Court in Empagran, however, had purchased vitamins from the defendants exclusively outside the United States. As such, the issue before the Court in Empagran was "whether the FTAIA precludes actions under the Sherman Act unless a plaintiff shows that the injuries it seeks to remedy arise from the anticompetitive effects of the defendant's conduct on U.S. commerce; or, alternatively, is it enough for a plaintiff to show that the anticompetitive effects of the defendant's conduct on U.S. commerce give rise to an antitrust claim under the Sherman Act by someone, even if not the plaintiff who is before the court".22
The Court in Empagran started with the proposition that an easy resolution to the case could not be found in the decisions in either Statoil or Kruman. According to the Court:
The majority opinion in [Statoil] seems to us to endorse a view of the FTAIA that is overly rigid, in light of the words of the statute and the relevant portions of the legislative history. And...the opinion in [Kruman] seems to reach too far in its view of subject matter jurisdiction. 23
As such, according to the Court, the proper interpretation of the reach of the FTAIA could be found somewhere between the views of the courts in Statoil and Kruman, albeit "somewhat closer to the latter than the former".24 The "middle ground" proposed by the Court in Empagran was as follows:
...where the anticompetitive conduct has the requisite harm on United States commerce, [the] FTAIA permits suits by foreign plaintiffs who are injured solely by that conduct's effect on foreign commerce. The anticompetitive conduct itself must violate the Sherman Act and the conduct's harmful effect on United States commerce must give rise to "a claim" by someone, even if not the foreign plaintiff who is before the court. Although the language of [the FTAIA] does not plainly resolve this case, we believe that our holding regarding the jurisdictional reach of the FTAIA is faithful to the language of the statute.25
In support of its interpretation of the reach of the FTAIA, the Court reviewed the legislative history surrounding the enactment of the statute, finding that there were numerous statements which supported the view that the harm suffered by a plaintiff need not stem from the anticompetitive effect of a defendant's conduct on U.S. commerce, and that while there were also isolated statements which were consistent with a more restrictive view of the FTAIA, these did not act to denigrate or exclude the less restrictive view of the statute.26 This, according to the Court, was telling since "if Congress intended to reject the less restrictive view of [the] FTAIA's jurisdictional reach, there was absolutely no reason to discuss this possible basis for subject matter jurisdiction along with the restrictive view".27
The Court also emphasized the policy objective of deterrence which underlies the FTAIA, reasoning that an interpretation of the statute which did not require the harm suffered by a foreign plaintiff to emanate from an effect on U.S. commerce would better enable this objective to be achieved:
Disallowing suits by foreign [plaintiff s] injured by a global conspiracy because they themselves were not injured by the conspiracy's U.S. effects runs the risk of inadequately deterring global conspiracies that harm U.S. commerce. Suits only by those injured by the U.S. effects of a conspiracy may not provide sufficient deterrence; a conspirator could expect that illegal profits abroad would offset his liability in the U.S., leaving the conspirator with an incentive to engage in global conspiracy. Allowing suits by those injured solely in foreign commerce, where the anticompetitive conduct also harmed U.S. commerce, forces the conspirator to internalize the full costs of his anticompetitive conduct.28
The influential Seventh Circuit has weighed in on the issue in two decisions released in March, 2003. The first case, United Phosphorous Ltd. v. Angus Chemical Company ("United Phosphorous"),29 considered an interesting argument by the foreign plaintiff s: the other Circuit Courts were asking the wrong question.
The plaintiffs argued that the question is not, as was considered by the other Circuit Courts, whether or not a court could assume subject-matter jurisdiction over cases brought by foreign plaintiffs alleging effects on the domestic economy giving rise to a claim under the Sherman Act. Rather, they argued, all that the FTAIA establishes is that this be an element of the claim to be proven.
In other words, according to the plaintiffs in United Phosphorous, a U.S. court should never dismiss a claim at an early stage, either on the grounds of Den Norske (i.e., the lack of a domestic effect giving rise to the foreign plaintiff s' claim) or on the grounds of Kruman and Empagran (i.e., the lack of a domestic effect giving rise to a claim). Rather, those should be matters left to the trial judge or jury to determine as an element of the cause of action.
A bare majority (5-4) of the Seventh Circuit rejected the arguments, holding that the FTAIA imposes limits on subject-matter jurisdiction, and does not merely create an element of the claim. Circuit Judge Evans, for the majority, expressed reservations about blazing a new path to the FTAIA, finding that "[w]e simply cannot dismiss these cases [Kruman, Empagran, Den Norkse, among others] as 'drive-by' jurisdictional rulings." Citing support found in the text of the FTAIA, precedent, and policy for its ruling that the FTAIA does in fact impose subject matter limits, the Court held:
In short, [the] FTAIA limits the power of the United States courts (and private plaintiff s) from nosing about where they do not belong.30
The majority did not need to decide whether the FTAIA restricts subject-matter jurisdiction to those cases where the foreign plaintiff asserts domestic effects giving rise to its injury or to join the D.C. and Second Circuits in finding that one must only allege that the domestic effects give rise to a claim under the Sherman Act. That was because the plaintiffs failed on the first prong of either analysis – namely, establishing a domestic effect.
Which way will the Seventh Circuit ultimately land on this issue? Circuit Judge Wood, who was dissenting in United Phosphorous, hinted three weeks later that the Seventh Circuit would go the way of Kruman and Empagran. In Metallgesellschaft AG v. Sumitomo Corp. of America ("Metallgesellschaft"),31 the Court considered another subject-matter challenge to a foreign plaintiff s' claim under the Sherman Act. The Court considered the split in the authorities described above, commenting that "the United Phosphorous result appears to point in the direction of the approach taken by the D.C. and Second Circuits."32 However, the issue did not need to be resolved in Metallgesellschaft because the Court was satisfied that the plaintiffs had sufficiently alleged facts which would have satisfied the stricter Den Norske test. Foreshadowing another likely Circuit battle yet to come, Circuit Judge Wood commented:
In a global economy, where domestic and foreign markets are interrelated and influence each other, it is sometimes difficult to put strict economic boundaries around any particular country. .… There are undoubtedly limitations to the reach of any country's laws, and U.S. courts have been grappling [with] where to draw those limits. .… In this case, however, we have no need to come to some ultimate conclusion about where U.S. interests end and those of other countries take over.33
The consequences of the Kruman and Empagran (and possibly United Phosphorous) decisions are staggering, not just for foreign plaintiff s, but equally for any company that deals in the U.S. For example, as a result of these decisions, a global price fixing conspiracy could result in treble damage awards (i.e., a plaintiff being awarded three times their actual damages) in the United States for a company's global sales, not just those in the U.S., even if there is nothing particularly distinctive about those sales in the U.S.34 Given that almost all global price fixing conspiracies will give rise to a "claim" under U.S. law to an American, it may now be open season for plaintiffs from Canada and other countries to go South for the holy grail of treble damages – which are not available in Canada nor typically elsewhere in the world.
The potential stultifying effect of these decisions on the Canadian competition law regime is also readily foreseeable. It is difficult to see why a Canadian plaintiff would allege a breach of Canada's Competition Act35 for activities which may have had an effect on the U.S. market when the potential rewards are much greater in launching an antitrust action in the United States.
It will also be interesting to see whether Canadian courts will seek to intervene against an ever-encroaching U.S. judiciary, through the use of anti-suit injunctions or other judicial devices for controlling litigants within Canada. To date, Canadian courts have been historically unwilling to intervene in U.S. disputes involving Canadians.36
Recently, moreover, an unexpected champion has come forward to argue that foreign plaintiffs should be barred access to U.S. antitrust statutes. On March 30, 2003, the U.S. Department of Justice and the Federal Trade Commission asked for an en banc rehearing of Empagran, arguing that the decision weakens the U.S. government's immunity program in that, among other things, it will discourage companies from blowing the whistle on anticompetitive behaviour in return for leniency in criminal sanctions given the potential for exposure to substantial civil liability. In its brief, the Department of Justice pleaded:
The rule adopted by the majority [in Empagran] ... would effect a sea of change in the number and type of private actions permitted under the Sherman Act.
...
By permitting suits for treble damages by overseas plaintiffs whose injuries arise from overseas conduct, the majority's decision, if allowed to stand, would create a potential disincentive for corporations and individuals to report antitrust violations and seek leniency under the Corporate Leniency Policy or, when amnesty under the policy is unavailable, to cooperate with prosecutors by plea agreement.37
As of the date of writing, the request for an en banc rehearing of Empagran had yet to be determined. Regardless, a case such as Empagran would seem a natural candidate for certiorari petition to the U.S. Supreme Court.
Few people would argue that persons who commit criminal and anticompetitive acts should be immune from liability. However, Canada has developed its own laws for regulating anticompetitive conduct, and it is not unreasonable to expect that U.S. laws regulating that same behaviour will stop at the border. The problem is, the people who are most likely to loudly object are those who are forced to pay treble damages in U.S. courts. And, of course, those are the people who are most likely to be ignored.
1. 15 U.S.C. §§ 1-7.
2. 15 U.S.C. §§ 12-27.
3. American Banana Co. v. United Fruit Co., 213 U.S. 347 (1909) [hereinafter American Banana].
4. American Banana, supra note 3 at 355.
5. Ibid.
6. U.S. v. Sisal Sales Corporation, 274 U.S. 268 (1927).
7. What constitutes a "direct effect" has been the subject of considerable debate. See R.W. Beckler and M.H. Kirtland, "Extraterritorial Application of U.S. Antitrust Law: What Is a 'Direct, Substantial, and Reasonably Foreseeable Effect' Under the Foreign Trade Antitrust Improvements Act?" (2003) 38 Tex. Int'l L.J. 11.
8. United States v. Aluminum Co. of America, 148 F.2d 416 (2d. Cir. 1945) [hereinafter Alcoa].
9. Alcoa, supra note 8 at 443.
10. 15 U.S.C. § 6a.
11. Ibid.
12. Den Norske Stats Oljeselskap As v. Heeremac Vof, 241 F.3d 420 (5th Cir. 2001) [hereinafter Statoil].
13. Statoil, supra note 12 at 426.
14. Statoil, supra note 12 at 427.
15. Statoil, supra note 12 at 427-8.
16. Statoil, supra note 12 at 428.
17. Kruman v. Christie's International plc, 284 F.3d 384 (2d. Cir. 2002) [hereinafter Kruman].
18. Kruman, supra note 17 at 389.
19. Kruman, supra note 17 at 396.
20. Kruman, supra note 17 at 397-8.
21. Empagran S.A. v. F. Hoff man LaRoche, 351 F.3d 338 (D.C. Cir. 2003) [hereinafter Empagran].
22. Empagran,supra note 21 at 344.
23. Empagran, supra note 21 at 341.
24. Empagran, supra note 21 at 341.
25. Empagran, supra note 21 at 341.
26. Other commentators disagree. See "Note: A Most Private Remedy: Foreign Party Suits and the U.S. Antitrust Laws", (2001) 114 Harv. L. Rev. 2122, at 2141: "The legislative history's reference to the domestic marketplace is dispositive in determining when foreign purchasers may seek the protection of U.S. antitrust laws. Congress clearly did not intend to allow foreign purchasers who participate only in foreign markets to avail themselves of Sherman Act protection, even when the underlying anticompetitive conduct has the requisite effects to trigger subject matter jurisdiction under the FTAIA."
27. Empagran, supra note 21 at 355.
28. Empagran, supra note 21 at 356.
29. United Phosphorous Ltd. v. Angus Chemical Company, 322 F.3d 942 (7th Cir. Ill. 2003) [hereinafter United Phosphorous]
30. United Phosphorous, supra note 29 at 952.
31. Metallgesellschaft AG v. Sumitomo Corp. of Am., 325 F.3d 836, No. 00- 3700 (7th Cir. Wis. 2003) [Metallgesellschaft].
32. Metallgesellschaft, supra note 31 at 9 (official judgment page reference).
33. Metallgesellschaft, supra note 31 at 11, 12 (official judgment page reference).
34. Circuit Judge Lane ruminated about whether such a claim would, in fact, give rise to subject-matter jurisdiction. However, the plaintiffs in Metallgesellschaft "alleged more than a global conspiracy that has significant effects in the United States" (at 12), and as such, the outer reaches of the Kruman and Empagran decisions would be left for another day.
35. Competition Act, R.S.C. 1985, c. C-34, as amended.
36. Ford v. F. Hoff man LaRoche, [2003] O.J. No. 868 (C.A.); Elga Laboratories Ltd. v. Soroko (2002), 61 O.R. (3d) 324 (S.C.J.). That said, successful antisuit injunctions are possible: see, e.g., Bell'o International LLC v. Flooring and Lumber Co. (2001) 11 CPC (5th) 327 (Ont. S.C.J.).
37. U.S. Department of Justice, "Brief for the United States and the Federal Trade Commission as Amici Curae in Support of Petition for Rehearing En Banc", Empagran S.A. v. F. Hoff man-La Roche Ltd. (D.C. Cir. Case No. 01-7115).