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U.S. COURT REVIVES PRICE-FIXING CLAIMS GONE, BUT Roche sold its vitamins and fine chemicals unit to DSM last year but is still responsible for claims arising from price-fixing suits.
Reagan-era law gives non-U.S. plaintiffs access to stateside courts
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FEDERAL APPEALS COURT
has ruled that Roche, Aventis, BASF, and other vitamin manufacturers that are part of an alleged price-fixing cartel can be sued by non-U.S. customers in the U.S. The companies, which have already reached settlements with the US. Justice Department, the European Commission, and U.S. customers, now face new claims that may amount to billions of dollars. TheJan. 17 decision reversed a lower court ruling that found foreign interests
had no legal claims because the products were purchased outside the U.S. The appeals court bases its ruling on the 1982 Foreign Trade Antitrust Improvements Act, which it says allows claims by foreign customers to deter price fixing by global cartels that damage U.S. commerce. Representatives of BASF, Roche, and Aventis say they are studying the new ruling and are prepared to fight it all the way to the Supreme Court. According to Peter Gallagher, a Washington, D.C.-based antitrust lawyer representing several foreign vitamin purchasers, the
TRADE
WTO SAYS U.S. MUST CHANGE LAW Ruling imperils companies' collection of duty money paid by importers
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U.S. LAW THAT HAS P R O -
vided millions of dollars to several chemical makers violates international trade rules, a^vvforldTrade Organization appeals panel said on Jan. 16. Unless the U.S. changes the law, exporters may face retaliatory duties in several major markets, including the European Union, Canada, and Mexico. Options include repeal of the law The disputed law addresses duties paid by forU
C & E N / JANUARY 2 7 , 2003
eign companies that either dump their goods — sell them at less than market price—in the U.S. market or receive unfair government subsidies. Under the law, US. companies can collect at least part of such duties. According to Customs Service figures, six chemical makers together pocketed $6.7 million under this statute in 2001, the onlyyear for which data are available (C&EN, Jan. 13, page 33). The Continued Dumping & Subsidy Offset Act of 2 0 0 0 was tacked onto an agriculture funding bill by Sen. Robert C. Byrd
ability ofnon-U.S. plaintiffs to sue in the U.S. dissuades conspirators from believing they can cover the cost of legal penalties with profits from non-U.S. markets. Legal experts are skeptical of the appeals court's ruling. "It is not regarded historically as the proper interpretation ofwhat is a very badly drafted and ambiguously worded law," says Herbert Hovenkamp, an antitrust expert at the University of Iowa law school. "It seems to be abig stretch—way beyond Congress' intent." Hovenkamp says the ruling will not be viewed well by foreign interests who are "skeptical and angry about the U.S. using its antitrust law abroad." Gallagher contends, however, that the decision reflects the realities ofglobal trade. "This is no ugly-American attempt to export our trade laws," he says. "It is ironic that the companies that fight to break down trade barriers are anxious to resurrect barriers in this instance."—RICK MULLIN
(D-WV&). It is known as the Byrd amendment. Australia, Brazil, Canada, Chile, the EU, India, Indonesia, Japan, Mexico, South Korea, and Thailand challenged the Byrd amendment at WTO. Arbiters last year agreed the law was illegal under global trade rules. The U.S. appealed the decision but lost. U.S. Trade Representative Robert B. Zoellick says the Bush Administration is reviewing the ruling "to assess the best compliance options." Administration officials will work with members of Congress on possible legislation to change the law, Zoellick says. Pierre S. Pettigrew, Canada's international trade minister, says, "The amendment gives U.S. producers an unjustified and potentially trade-distorting advantage by offering them an incentive to file for antidumping and countervailing duty investigations since they would receive a share of the duty"—CHERYL H0GUE HTTP://WWW.CEN-ONLINE.ORG
