The economic impact of the U.S. Export Trading Company Act

Antitrust Law Journal

Volumn 74, Issue 2, 2007, Pages 343-386

  Levenstein, Margaret C ^a,c   Suslow, Valerie Y ^b,c  

^a Michigan Census Research Data Center

^b Institute for Social

^c UNIVERSITY OF MICHIGAN   (United States)

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[No Author keywords available]

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EID: 34548137343     PISSN: 00036056     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (122)

1. Margaret C. Levenstein & Valerie Y. Suslow, The Changing International Status of Export Cartel Exemptions, 20 AM. U. INT'L L. REV. 785, 806, 821 (2005) (stating that "several countries have recently amended their competition laws to eliminate explicit export cartel exemptions. The countries instituting such changes are Cyprus, Germany, Hungary, Japan, Korea, the Netherlands, Sweden, Switzerland, and the United Kingdom . . . .").
2. 15 U.S.C. §§ 4001-4053.
3. Numerous witnesses, both from government and private industry, testified during the Export Trading Company Act Legislative Hearings (1978-1982) that the United States must learn from the Japanese and Korean trading company model.
4. See Export Trading Company Act of 1980: Hearing on S. 2379, S. 864 and Amendment No 1674 to S. 864 Before the Subcomm. on Int'l Finance of the S. Comm. on Banking, Housing and Urban Affairs, 96th Cong. 254-55 (1980) (statement of Philip Klutznick, Secretary, Dep't of Commerce);
5. id. at 145-51 (statement of Erland Heginbotham, Assistant Secretary, State Dep't);
6. id. at 171-72 (statement of Lawrence A. Fox, Vice President, Nat'l Ass'n of Manufacturers);
7. see also Export Trading Companies: Hearing Before the Subcomm. on International Economic Policy and Trade of the H.R. Comm. on Foreign Affairs, 96th Cong. 40-41 (1980) (statement of Richard Hocffs, Director, and Gerald T. Ball, Partner, Arthur Andersen & Co.);
8. Export Trading Companies and Trade Associations: Hearing on S. 864, S. 1499, S. 1663 and S. 1744 Before the Subcomm. on Int'l Finance of the S. Comm. on Banking, Housing and Urban Affairs, 96th Cong. 210-11 (1979) (statement of Harvey Kapnick, Chairman & CEO, William Penick, Managing Director, and Richard Hoeffs, Director, Arthur Andersen & Co.).
9. Export Trading Company Affairs, Export Trading Company Act of 1982 (2006), available at http://www.ita.doc.gov/td/oetca/TitleIII.htm.
10. John J. Sullivan, Statement to Antitrust Modernization Commission, Statutory Immunities and Exemptions, Hearing (Dec. 1, 2005), available at http://www.amc.gov/ commission_hearings/sta tutory_immunities_exemptions.htm.
11. 15 U.S.C. §§ 61-66.
12. See Paul A. Victor, Export Cartels: An Idea Whose Time Has Passed, 60 ANTITRUST L.J. 571, 573 (1992) (reporting that "[b]y 1982, the year that the Foreign Trade Antitrust Improvements Act . . . and Export Trading Company Act . . . were enacted, only thirtynine registered Webb associations existed . . ."). As of May 2005 (the date of the most recent Federal Trade Commission listing), only seven Webb-Pomerene Associations remained: American Cotton Exporters Association, American Natural Soda Ash Corporation, American European Soda Ash Shipping Association, California Dried Fruit Export Association, Overseas Distribution Solutions, Paperboard Export Association of the United States, and Phosphate Chemicals Export Association.
13. See FEDERAL TRADE COMM'N, WEBB-POMERENE ACT FILINGS (2006), available at http://www.ftc.gov/os/ statutes/webbpomerene/index.htm.
14. As explained infra Part III, the granting of an ETC Certificate eliminates potential criminal liability and reduces any potential civil liability from treble to single damages for joint conduct authorized by the Certificate.
15. The ETC Act is often referred to as an antitrust exemption, but the Foreign Trade Antitrust Improvement Act specifically restricts the scope of U.S. antitrust law to activities that harm the domestic market. Thus, the ETC Act is not exempting firms from potential liability for harm that they cause to foreign markets. Such harm is not prohibited by U.S. law.
16. We refer to the firm or group of firms granted a Certificate as an ETC (Export Trading Company).
17. E-mail from Jeffrey Anspacher, Director, Export Trade Company Affairs, U.S. Dep't of Commerce, to Valerie Y. Suslow, Associate Professor, Stephen M. Ross School of Business, University of Michigan (May 26, 2006, 11:42AM EST) (on file with author) (stating that voluntary relinquishments are not a matter of public record, and providing the figure that 78 ETC Certificates are currently active). Revocations are explained in detail infra Part III. Information gathered from the Federal Register shows that 37 ETC Certificates have been revoked from 1983 to 2004, which is our sample period, but an additional five were revoked in 2006.
18. See generally Spencer W. Waller, The Failure of the Export Trading Company Program, 17 N.C.J. INT'L L. & COM. REG. 239, 246 (1992) (stating that "[c]ertified export activity has produced a negligible effect on U.S. exports").
19. The Organization for Economic Cooperation and Development (OECD) introduced the terminology "hard-core cartels" in a 1998 report to refer to private cooperative agreements to set prices or allocate markets. See generally Organization for Economic Cooperation and Development, Recommendation of the Council Concerning Effective Action Against Hard Core Cartels, OECD Doc. C(98)35/FINAL (1998), available at http:// www.oecd.org/dataoecd/39/4/2350130.pdf.
20. At a 2003 World Trade Organization meeting, the U.S. representative made this point, arguing that most export associations enhance global welfare: so-called "export cartels" . . . typically were conceived as mechanisms for domestic entities that lacked the resources to engage in effective export activity acting individually. As such, they often had pro-competitive effects in that they added additional players to the relevant markets and might bring innovation or lower prices. Moreover, they were not secret and therefore did not bear the hallmarks of what was traditionally considered to be a hardcore cartel. WTO Secretariat, Working Group on the Interaction Between Trade and Competition Policy, W.T.O. Doc. WT/WGTCP/M21 at 15 (May 26, 2003).
21. See, e.g., Andrew R. Dick, Are Export Cartels Efficiency-Enhancing or Monopoly-Promoting?: Evidence from the Webb-Pomerene Experience, 15 RES. IN L. & ECON. 89, 90-91 (1992).
22. See Levenstein & Suslow, supra note 1, at 800-06 (discussing the status of antitrust exemptions for exporters throughout the world, and the associated notification requirements).
23. See id. at 795-96 (discussing the lack of data available on export associations from competition agencies in other countries).
24. After the application is published in the Federal Register, there is a waiting period of 90 days during which the public is invited to comment.
25. See 15 U.S.C. § 4013(b) ("Within ninety days after the Secretary receives an application for a certificate of review, the Secretary shall determine whether the applicant's export trade, export trade activities, and methods of operation meet the standards of subsection (a). If the Secretary, with the concurrence of the Attorney General, determines that such standards are met, the Secretary shall issue to the applicant a certificate of review.").
26. Levenstein & Suslow, supra note 1, at 800 (noting that "The sample consists of all OECD countries, EU countries, and selected developing countries. . . . [Of this sample] seventeen have explicit exemptions.").
27. Id. at 805 (stating that "Most countries in our sample (64%), including almost all members of the EU, have implicit exemptions." Examples of such countries are Argentina, Belgium, Netherlands, Portugal, and Spain.).
28. 15 U.S.C. § 6a.
29. Levenstein & Suslow, supra note 1, at 806-11.
30. Id. at 816-17.
31. Almost all ETCs apply to and receive their certification from the Department of Commerce. As discussed in Part V.A., a very small number of ETCs have been formed by financial institutions that received certification from the Board of Governors of the Federal Reserve System. As far as we have been able to determine, no application for an ETC Certificate has ever been denied.
32. See SPENCER W. WALLER, KINGMAN BREWSTER, & JAMES ATWOOD, ANTITRUST AND AMERICAN BUSINESS ABROAD 9-46 (3d ed. 1997) (stating that "[t]he Secretary of Commerce may not issue a certificate until the Attorney General agrees that [certain] standards are met." These standards include the methods of operation "resulting] in neither a substantial lessening of competition or restraint of trade within the United States nor a substantial restraint of the export trade of any competitor of the applicant" and "not constitut [ing] unfair methods of competition against competitors engaged in the export of goods or services of the class exported by the applicant."). The DOJ will include in the Certificate issued any restrictions it deems necessary to protect domestic markets from anticompetitive effects.
33. See, e.g., William W. Nye, An Economic Profile of Export Trading Companies, 38 ANTITRUST BULL. 309, 310 (1993) (stating that "[applicants for Export Trading Company certification must undergo precertification examination by the Departments of Commerce and Justice, while applicants for Webb status simply file an application").
34. 15 U.S.C. § 4016b.
35. See James V. Lacy, The Effect of the Export Trading Company Act of 1982 on U.S. Export Trade, 23 STAN. J. INT'L L. 177, 184-85 (1987) (providing a summary of the differences between the Webb-Pomerene Act and the ETC Act).
36. E-mail from Jeffrey Anspacher, supra note 11.
37. International Trade Administration, Export Trade Certificate of Review to U.S. Textile Export Co. Inc., t/a TEXTPORT, Inc., 60 Fed. Reg. 44,020, 44,021 (Aug. 15, 1995).
38. The Chlor/Alkali Producers International ETC Certificate was granted in January 1985 and challenged by Horizons International in 1986. Four chemical companies formed the ETC: B.F. Goodrich Company, Kaiser Aluminum and Chemical, Occidental Chemical Corporation, and Vulcan Materials Company. Their ETC Certificate covered the export of caustic soda and chlorine. The Certificate also stated that this ETC may "refuse to quote prices for, or to market or sell, caustic soda and chlorine to its or its members' competitors in the Export Markets." Horizons, a broker of caustic soda on international markets, sued the Department of Commerce and the Justice Department in 1986. It won initially, but then lost on appeal. See Lacy, supra note 28, at 193 (discussing the chilling effect of Horizons International, Inc. v. Baldrige, 624 F. Supp. 1560 (E.D. Pa. 1986), rev'd 811 F.2d 154 (3d Cir. 1987), on the ETC program).
39. This fact is confirmed in testimony by John J. Sullivan before the Antitrust Modernization Committee. Sullivan, supra note 5, at 2 (stating that "there has never been a successful antitrust challenge to export conduct covered by a Certificate of Review-either in the United States or, to the best of our knowledge, anywhere else in the world").
40. Case 89/85, Åhlstrõhm v. Commission, 1988 E.C.R. 5194 (1988). Domestically, there have been occasional challenges to and investigations of Webb-Pomerene associations, some by the Federal Trade Commission and others by the Department of Justice, primarily in the 1940s and 1950s. See WALLER, BREWSTER, & ATWOOD, supra note 25, at 9-31 to -33 (stating that "[s]o far the Department of Justice has prosecuted only six Webb associations").
41. See William Sugden, Global Antitrust and the Evolution of an International Standard, 35 VAND.J. TRANSNAT'L L. 989, 1010-11 (2002) (providing a brief summary of the case and the issues involved).
42. See Aditya Bhattacharjea, Export Cartels-A Developing Country Perspective, 38 J. WORLD TRADE 331, 340-47 (2004) (providing a case study of the Webb-Pomerene Association in the soda ash industry).
43. Commission Decision of 19 December 1990 Relating to a Proceeding Under Article 85 (1) of the EEC Treaty, 1991 O.J. (L 152) 54, _ 30.
44. Press Release, Office of the United States Trade Representative, Indian Supreme Court Opens Door for U.S. Soda Ash Exports (Aug. 1, 2002), available at http:// www.ustr.gov/Document_Library/Press_Releases/2002/August/ Indian_Supreme_Court _Opens_Door_for_US_Soda_Ash_Exports.html (reporting that the Indian Supreme Court had decided on July 29, 2002, to remove the injunction against ANSAC imports because "no case had been made under Indian antitrust law for such an order").
45. See document posted on the Web site of the Venezuelan competition agency (Procompetencia): Superintendencia para la Promoción y Protección de la Libra Competencia, Resumen de Resoluciones (1999), available at http://www.procompetencia.gov.ve/ resumen 1999.html (stating that "Ansae había abusado de su posición de dominio").
46. See In re Am. Natural Soda Ash Corp., 2005 (9) BCLR 862 (SA) (S. Afr.) ¶¶ 53-54, 57, available at http://www.comptrib.co.za/ %5Ccomptrib%5Ccomptribdocs%5C554%5 CANSACMay05.doc ("It is not difficult to envisage conduct by competitors that is designed to eliminate price-competition indirectly, by shifting the supply of competitors' goods to a separate entity that is under their control, and which purports to set the price for the goods. If that separate entity is no more than the alter ego of the individual competitors in association, who are in truth consensually fixing their prices through the medium of that alter ego, then no doubt the façade behind which they are acting can be stripped away to reveal the reality of the arrangement (collusion by two or more competitors designed to ensure that their respective goods reach the market at non-competing prices). But not every arrangement between competitors entailing the ultimate supply of goods necessarily falls into that category. It is, for instance, not difficult to envisage a bona fide joint venture that is embarked upon by competitors for a legitimate purpose, through the vehicle of a separate entity, which must necessarily set a price for goods that it supplies (emanating from the competitors) merely as an incident to the pursuit of the joint venture... . The Tribunal has not yet in express terms construed s 4(1) (b) and established its scope (nor what falls outside its scope.").
47. Colm Keena, Competition Body Investigates U.S. Group over Possible Cartel Activity, IRISH TIMES, Mar. 19, 2005, at 16.
48. Id.
49. See generally STAFF REPORT TO THE FEDERAL TRADE COMMISSION, WEBB-POMERENE ASSOCIATIONS: A 50-YEAR REVIEW (1967) [hereinafter FTC 1967 REPORT];
50. STAFF REPORT TO THE FEDERAL TRADE COMMISSION, WEBB-POMERENE ASSOCIATIONS: TEN YEARS LATER (1978) [hereinafter FTC 1978 REPORT] (reporting on federal government review of the Webb-Pomerene program in 1929 and 1946). Independent reviews have also been conducted.
51. See Federal Trade Commission (1967), supra, at 8, 11-12 for references.
52. FTC 1967 REPORT, supra note 42, at 8 (quoting William E. Knotz, Ten Years' Operation of the Webb Law, 19 AM. ECON. REV. 1, 19 (1929)).
53. Id. at 23.
54. Id. at 24, 36.
55. FTC 1978 REPORT, supra note 42, at 2.
56. Id. at 15.
57. Andrew R. Dick, Identifying Contracts, Combinations and Conspiracies in Restraint of Trade, 17 MANAGERIAL & DECISION ECON. 203, 214 (1996).
58. See Dick, supra note 15, at 93 (stating that eight of the sixteen cartels studied "displayed no net effect on either export prices or quantities").
59. Lacy, supra note 28, at 181.
60. Nye, supra note 26, at 311.
61. Id. at 314.
62. Id. ETC Certificates can be issued to just one firm. It appears that these firms are acting as import-export intermediaries between U.S. producers and foreign customers.
63. Id. at 315.
64. Id. at 316-17.
65. Id. at 311.
66. See also Telephone interview with Jeffrey Anspacher, Director, Export Trading Company Affairs, U.S. Dep't of Commerce, in Washington D.C. (June 5, 2006) (stating that this is still approximately true today, although the percentage of exports accounted for by the top four ETCs is not quite as large as it was in the late 1980s).
67. Waller, supra note 12, at 246.
68. See id. at 247 (providing the "20,000 firms" forecast from Congress and the "4,200" figure for the number of ETC members);
69. see also WALLER ET AL, supra note 25, at 9-54 to 9-55 (providing a discussion of trade associations and the "307 firms" figure).
70. E-mail from Jeffrey Anspacher, supra note 11.
71. Waller, supra note 12, at 251.
72. Id. at 251-52.
73. This estimate is based on only half the ETCs: 93 Certificates do not state the number of members in the association. We also exclude the National Tooling & Machining Association from our calculation of the mean. It is an extreme outlier, with thousands of members.
74. A single firm acting as a distributor for several competing producers might choose to obtain an ETC Certificate if the distributor believes it would be at risk of violating antitrust law, perhaps due to communications among the firms or an exclusive distributor arrangement.
75. Waller, supra note 12, at 251-52.
76. Telephone interview with Jeffrey Anspacher, supra note 56. For more information on the Virginia Apple Growers Association, see generally ETCA News, Virginia Apple Group Receives Export Trade Certificate of Review, available at http://www.ita.doc.gov/TD/OETCA/ Apples.html.
77. C-Shore International Inc., About C-Shore, http://www.beantrader. com/about. cshore.html;
78. see also International Trade Administration, Export Trade Certificate of Review to Jacques Isaac d/b/a C-Shore International, 64 Fed. Reg. 18,602 (Apr. 15, 1999).
79. CISA Export Trade Group, Inc., Just Some of the CISA Benefits, http://www.cisa.org/ about_cisa/benefits.htm;
80. see also International Trade Administration, Export Trade Certificate of Review to CISA Export Trade Group, Inc., 53 Fed. Reg. 43,253 (Oct. 26, 1988).
81. As an example of the level of disaggregation of a 6-digit NAICS product category, consider the ETC granted in 1983 to International Trailer Sales, Inc. The products covered in this ETC are "commercial trailers for construction, heavy equipment and other hauling, truck tractors, and parts and supplies therefor." These products are classified under the 2-digit NAICS category "Manufacturing"; the 3-digit category "Machinery Manufacturing"; the 4-digit category "Agriculture, Construction, and Mining Machinery Manufacturing"; and the 6-digit category "Construction Machinery Manufacturing."
82. International Trade Administration, Export Trade Certificate of Review to NYVZ Import Sc Export, Inc., 68 Fed. Reg. 65,250 (Nov. 19, 2003), and International Trade Administration, Export Trade Certificate of Review to Hammerl-Davis International, Inc., 53 Fed. Reg. 32,927 (Aug. 29, 1988).
83. International Trade Administration, Export Trade Certificate of Review to International Development Institute, 48 Fed. Reg. 51,667 (Nov. 10, 1983).
84. International Trade Administration, Export Trade Certificate of Review to Intex International Trading Company, Inc., 48 Fed. Reg. 50,383 (Nov. 1, 1983).
85. In particular, we do not have industry-specific exchange rates for agriculture, nor do we have a measure of market concentration consistent with the manufacturing data.
86. U.S. Dep't of Justice and the Federal Trade Comm'n, 1992 Horizontal Merger Guidelines §1.5 (1992, revised 1997), available at http://www.ftc.gov/bc/docs/horizmer. htm.
87. See Nye, supra note 26, at 321 (stating that "Title II of the 1982 Act amended the Bank Holding Company Act of 1950 to permit bank holding companies, bankers' banks and Edge Act corporations to participate in organizing ETCs and to acquire shares of an ETC...").
88. Id. at 310.
89. See Lawrence Kryzanowski Sc Nancy D. Ursel, Market Reaction to the Formation of Export Trading Companies by American Banks, 24 J. INT'L BUS. STUDIES 373, 374, 379 (1993) (stating that "[t]he dates of banks' announcements of their intentions to form ETCs were identified for fifteen banks" and finding that the "[announcements of ETC formations by U.S. banks caused significant (negative) stock price reaction with no evidence of risk increases. These results suggest that the market believed that involvement of U.S. banks in ETCs would not be value-enhancing.").
90. Telephone interview with Bank Applications at the Federal Reserve Bank of New York (Apr. 2005). Federal Reserve data indicate that there are currently two reporting organizations that are ETCs. However, there is a third organization, still in existence, which was previously considered an ETC, but apparently no longer operates as one.
91. International Trade Administration, Export Trade Certificate of Review to Construction Industry Manufacturers Association, 54 Fed. Reg. 24,932 (June 12, 1989) (emphasis added).
92. Waller, supra note 12, at 252.
93. International Trade Administration, Export Trade Certificate of Review to Michael Mace d/b/a Mutual Trade Services, 53 Fed. Reg. 11,325 (Apr. 6, 1988).
94. International Trade Administration, Export Trade Certificate of Review to Global Marketing Associates, Inc, 53 Fed. Reg. 32,927 (Aug. 29, 1988).
95. International Trade Administration, Export Trade Certificate of Review to Sun International Trading, Ltd., 54 Fed. Reg. 24,371 (June 7, 1989).
96. International Trade Administration, Export Trade Certificate of Review to Northwest Blueberries USA, Inc., 58 Fed. Reg. 59,448 (Nov. 9, 1993).
97. Exports are disaggregated to the 6-digit NAICS product level. See Data Appendix for description of export data and the export price index used to deflate the export data.
98. For a survey of the theory of foreign trade, as well as an extensive survey of the empirical work and econometric issues, see generally Morris Goldstein & Mohsin S. Khan, Income and Price Effects in Foreign Trade, in HANDBOOK OF INTERNATIONAL ECONOMICS 1042 (R.W. Jones Sc Peter B. Kenen eds., 1985);
99. see also Tamim Bayoumi, Estimating Trade Equations from Aggregate Bilateral Data (IMF Working Paper No. 99/74, May 1999), available at http://ssrn.com/abstract=880601.
100. For comparable specifications of the demand for U.S. exports, see generally Paul R. Krugman & Richard E. Baldwin, The Persistence of the U.S. Trade Deficit, 1 BROOKINGS PAPERS ON ECONOMIC ACTIVITY 1 (1987);
101. Mohsen Bahmani-Oskooee & Zohre Ardalani, Exchange Rate Sensitivity of U.S. Trade Flows: Evidence from Industry Data, 72 S. ECON. J. 542 (2006);
102. W. Charles Sawyer & Richard L. Sprinkle, The Demand for Imports and Exports in the U.S.: A Survey, J. ECON. & FIN. 147 (1996).
103. "Log" here refers to the natural log. The log transformation allows one to interpret a coefficient of the estimated model as an elasticity (the percentage change or effect on the value of exports from a one-percent change in the explanatory variable). The export demand function is normally specified as multiplicative, so that taking logs of both sides creates a regression equation that is linear in logs. See, e.g., Bayoumi, supra note 85, at 4, 9 (specifying the export demand function and the log-log specification used in estimation) ;
104. see also Bahmani-Oskooee & Ardalani, supra note 86, at 543-44 (discussing a log-log export function, depending on world income and the real value of the dollar).
105. See Data Appendix for detailed variable definitions and data sources.
106. The exchange rate index, including the most up-to-date revisions, was generously provided by Linda Goldberg of the Federal Reserve Bank of New York. See Data Appendix for details.
107. See JOHN SUTTON, SUNK COSTS AND MARKET STRUCTURE 83-109 (1991) (demonstrating theoretically and empirically the relationship between sunk costs and industry concentration);
108. see also id. at 106 tbl. 4.3 (illustrating "[m]arket size to setup cost ratios and four-firm sales concentration by country").
109. Estimation was carried out using STATA statistical software.
110. Krugman & Baldwin, supra note 86, at 17 tbl. 1.
111. Bahmani-Oskooee & Ardalani, supra note 86, at 550 tbl. 3.
112. Mohsen Bahmani-Oskooee, On the Effects of U.S. Federal Deficits on its Trade Flows, 14 J. POST KEYNESIAN ECON. 72, 77 tbl. 1 (1991).
113. See, e.g., Sawyer & Sprinkle, supra note 86, at 168, 170 (reporting an estimated elasticity of U.S. exports with respect to the exchange rate of -1.33 in a study by Krugman and Baldwin for non-agricultural exports, and an elasticity of -0.93 for finished manufactures in a study by Sawyer and Sprinkle);
114. see also Bahmani-Oskooee & Ardalani, supra note 86, at 550 (reporting an exchange rate elasticity of-0.79 for their export model).
115. Note that the three-digit NAICS industry dummy variables are not reported in the OLS results tables.
116. 1.878 = 6.54.
117. it. This is not likely to hold for panel data. The coefficients will capture the unobserved differences between those product groups with ETCs and those product groups without ETCs. The pooled OLS estimates will be biased and inconsistent. The FE transformation controls for the individual product group effects, and the FE estimates will be unbiased and efficient. See generally JEFFREY M. WOOLRIDGE, ECONOMETRIC ANALYSIS OF CROSS SECTION AND PANEL DATA 247-97 (1st ed. 2001).
118. FE estimators are often known as within-group estimators because of the transformation of the data to deviations from group means.
119. A different type of measurement problem could arise because of changes in the industry classification codes over time. The export data are organized by Standard Industrial Classification (SIC) codes until 1988 and by NAICS from 1989 on. To test for measurement problems generated by mismatched export product categories, we included a dummy variable for the switch from SIC to NAICS. The dummy variable was not significant.
120. Despite Congress's attempt to clarify "the confusing array of standards employed by federal courts for determining when U.S. antitrust jurisdiction attaches to international business transaction," see Eurim-Pharm GmbH v. Pfizer Inc., 593 F. Supp. 1102, 1105 (S.D.N.Y. 1984)
121. the FTAIA "leaves key questions unanswered about the viability of foreign purchaser claims in an allegedly "global" market where plaintiffs can claim some interrelationship, as a matter of economics, between the foreign and domestic effects of the underlying conduct." Arnold & Porter LLP, Client Advisory, The Supreme Court Decision in Empagran 1 (June 2004), available at http://www.arnoldporter.com/pubs/files/ Advisory-Supreme_Court_Decision_Empagran (6-2004) .pdf.
122. Our thanks to Spencer Weber Waller and Eleanor Fox for raising this possibility. E-mail from Spencer Weber Waller, Professor and Associate Dean for Research, Loyola University Chicago, School of Law, to Valerie Y. Suslow, Associate Professor, Stephen M. Ross School of Business, University of Michigan (June 30, 2006, 3:05 p.m. EST) (on file with author); E-mail from Eleanor Fox, Walter J. Derenberg Professor of Trade Regulation, New York University School of Law, to Valerie Y. Suslow, Associate Professor, Stephen M. Ross School of Business, University of Michigan (Aug. 1, 2006, 2:26 p.m. EST) (on file with author).