PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21
- 2104

BLENHEIM CAPITAL HOLDINGS LTD.; BLENHEIM CAPITAL PARTNERS LTD. , Plaintiffs

- Appellants ,

v. LOCKHEED MARTIN CORPORATION; AIRBUS DEFENCE AND SPACE SAS , Defendants

- Appellees, and DEFENSE ACQUISITION PROGRAM ADMINISTRATION; REPUBLIC OF KOREA, Defendants.

Appeal from the United States District Court for the Eastern District of Virginia , at Alexandria

. Liam O’Grady, Senior District Judge. ( 1:20

- cv - 01608

- LO

- JFA )
Argued : September 16, 2022 D ecided: November 15, 2022

Before GREGORY, Chief Judge, and NIEMEYER and THACKER , Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Chief Judge Gregory and Judge Thacker joined. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 1 of 232 ARGUED: Hamish P.M. Hume, BOIES, SCHILLER & FLEXNER, LLP, Washington, D.C., for Appellants. Marc Laurence Greenwald, QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New York; Brian T. McLaughlin, CROWELL & MORING LLP, Washington, D.C., for Appellees. ON BRIEF: Samuel C. Kaplan, Jesse M. Panuccio, BOIES, SCHILLER & FLEXNER, LLP, Washington, D.C., for Appellants. Lyndsay A. Gorton, CROWELL & MORING LL P, Washington, D.C., for Appellee Lockheed Martin Corporation. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 2 of 233 NIEMEYER, Circuit Judge: Blenheim Capital Holdings L td

. a nd Blenheim Capital Partners L td ., Guernsey

- based c ompan ies (collectively , “Blenheim”), commenced this action against Lockheed Martin Corporation, Airbus Defence and Space SAS, and the Republic of Korea and its Defense Acquisition Program Administration ( the last two , collectively, “South Korea”), alleging that the defendants conspired to “cut it out” as the broker for a large , complex international military procurement transaction

. * Under the terms of the transaction, South Korea would acquire 40 F

- 35 fighter planes

— value d at roughly $7 billion

— manufactured by Lockheed a nd a “Next

- gen” military satellite

— value d at over $3 billion

— manufactur ed by Airbus and equipped with capabilities for “integration with the F

- 35 fighter planes.” South Korea would pay $7 billion for the F

- 35s and $150 million
toward the cost of the m ili t ary satellite, with the remaining value of the satellite serving as an “offset” to effectively reduce South Korea’s costs and thus “sweeten” the transaction. Further , t he $150 million payment by South Korea w as to be paid to Lockheed and passed
on to Blenheim in installments , which Blenheim would use as capital to procur e the financing for the purchase of three satellites from Airbus . One of these satellite s would be the military satellite for South Korea , and the other two would be retained by B lenheim , which it would operate , leasing the ir transmission capacity to earn income to pay for the satellite production and financing costs and provide Blenheim with “a total profit of at least

* For purposes of this appeal, when referring to Lockheed, we include its divisions, subsidiaries, and affiliated companies, as alleged by Blenheim in its complaint; and when referring to Airbus, we likewise include its affiliated companies, as alleged. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 3 of 234 $500 million.” The entire transaction was subject to the appr oval and supervision of the U.S. government.
For reasons that are vigorously disputed by the parties, Lockheed terminated the brokerage arrangement with Blenheim and restructured the transaction to be a “direct procurement” between Lockheed , Airbus , and So uth Korea , again with the approval and supervision of the U.S. government

. Blenheim was left to bear the costs it had incurred in designing and working on the transaction , and it was also denied the prospects for profit from owning and operating two satel lites. In its first amended complaint, Blenheim alleged that the defendants (1) tortiously interfered with its brokerage arrangement and its prospective business expectations; (2) conspired to do so; (3) were unjustly enriched; and (4) conspired to violate federal and state antitrust laws

. For subject matter jurisdiction, it relied on federal question jurisdiction under 28 U.S.C. § 1331, based on its federal antitrust claim , and on the Foreign Sovereign
I mmunities Act of 1976 , 28 U.S.C. §§ 1330(a), 1604, 1605(a)(2) , and 28 U.S.C. § 1 3 67 (supplemental jurisdiction) for its tort claims

. The district court granted the defendants’ motions to dismiss under Federal Rule s of Civil Procedure 12(b)(1) and 12(b)(6). With respect to the tort claims, it concluded that it lacked subject matter jurisdiction by reason of the Foreign Sovereign Immunities Act because South Korea was presumptively immune from jurisdiction under the Act and had not been engaged in “commercia l activity , ” which is ex cepted from the immunity from jurisdiction conferred by the Act. And on the antitrust claim, it held that the action was barred by both the applicable four

- year statute of limitations and the Foreign Trade USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 4 of 235 Antitrust Improvements Ac t of 1982 , which requires that anticompetitive conduct have a sufficient e ffect on domestic or import commerce to be subject to U.S. antitrust laws

. Finding no reversible error in the district court’s analysis , we affirm.

I According to Blenheim’s complaint, Blenheim “specializes in developing, structuring, and modeling international ‘offset’ transactions, which are often part of government procurements.” “Offset” transactions are those in which the supplier in a procurement contract provides a collateral “ sweetener ” to the procuring government to reduce the procuring government’s cost in the transaction. Offset transactions are “common in defense procurements.” Beginning in 2011, Blenheim worked with Lockheed to structure an offset transaction that would secure the sale of 40 F

- 35 fighter planes to South Korea after South
Korea “accelerated its plans to enhance stealth

- fighter capabilities in response to public outcry over North Korean aggression.” The F

- 35 is a fifth

- gen eration fighter plane manufacture d by Lockheed for the U.S. government , and it represent s the state

- of

- the

- art in such military equipment and includ es classified technology. Because of the F

- 35’s high cost, Lockheed and Blenheim recognize d that South Kore a would require an offset transaction. Following much work, Blenheim proposed and the relevant parties accepted , with the approval of the U.S. Department of Defense, the terms of an offset transaction in which (1) Lockheed would provide South Korea with 4 0 F

- 35 planes with a value of roughly $7 billion; (2) Blenheim would arrange to have Airbus manufacture three satellites, USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 5 of 236 one of which

— a military satellite designed with “Next

- gen” capabilities , including “integration with the F

- 35 fighter plane s ”

— would be provided to South Korea, with the other two to be retained by Blenheim to operate ; (3) South Korea would pay for the 40 F

35s a nd contribute $150 million toward the cost of the military satellite, which had a n offset value of “more than $3.1 billi on, ” effectively reducing South Korea’s overall cost by almost one - half; (4) the $150 million payment would be transferred (via the U.S. Department of Defense) to Lockheed and then in installments to Blenheim for the purpose of obtain ing financing for the cost of the satellites; (5) Blenheim would then operate the two satellites provided to it , leasing their transmission capacity to generate income to pay for all th re e satellites and to provide it with an estimated profit of $500 million. Blenheim thus fu nctioned as a broker in th e transaction in accordance with the terms of an “ I nternational B rokerage A greement” between it and Lockheed. Because the transaction involved highly sensitive military equipment designed and manufactured for the U.S. military , i t could be accomplished only as a “F oreign M ilitary S ale ,” requiring approval and control by the U.S. Department of Defense. Indeed, negotiations for the transaction took place in the offices of the U.S. Department of Defense, including the Pentagon, because the negotiations “involved classified information.” The statutes and regulations govern ing the sale of the F

- 35s to South Korea requir ed all aspects of the transaction to be approved and managed by the U.S. government , includ ing the U.S. government’s receipt and disburs al of all monies in the man ner agreed, including even the $150 million that South Korea paid to Lockheed fo r payment to Blenheim

. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 6 of 237 Blenheim ’s complaint alleged that , beginning sometime in 2015, Lockheed and Airbus ( and later on, South Korea ) conspired to “cut Blenheim out” of the offset transaction

. Lockheed ’s motivation for doing so, according to Blenheim, was that Lockheed became concerned that carrying out the transaction would position Blenheim to compete with a division of Lockheed that was in the market for satellite transmission capacity

. The complaint thus alleged that Lockheed , in furtherance of the co nspiracy, delayed paying Blenheim the installments of the $150 million that it had received from South Korea via the U.S. Department of Defense

. Lockheed made the first pay ment of $45 million on June 15, 2016

— which was after its due date

— and then made no further payments. And finally, by letter dated October 6, 2016, it terminated Blenheim’s role as the broker in the offset transaction. The letter stated: This letter will serve as formal notice by Lockheed Martin O versees C orporation and its affiliat es (“LMOC”) to Blenheim Capital Partners and its affiliates (“Blenheim”) of the immediate termination of International Broker Agreement LMOC

- 07

- 51 between LMOC and Blenheim dated October 26, 2007, including all amendments, exhibits, appendices, and attachment s thereto (the “IBA”)

. As discussed at length in previous written co mmunications, Blenheim has materially breached the IBA (and relevant appendices and exhibits thereto). Such material breaches remain uncured. Accordingly, pursuant to Section 11.B. of the IBA, the IBA is terminated for cause. The complaint alleged that L ockheed, Airbus , and South Korea then restructure d the offset transaction, cutting Blenheim out of it , such that Lockheed agreed to provide 4 0
F

- 35s to South Korea and Airbus agreed to provide the military satellite . T he U .S. Department of Defense approve d the restructured transaction , and t he military satellite for South Korea was launched from Cape Canaveral on July 20, 2020. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 7 of 238 Blenheim commenced this action on December 31, 2020, alleging that the defendants (1) tortiously interfered with its International Brokerage Agreement and prospective business expectancies ; (2) conspired to do so ; and (3) w ere unjustly enriched. And by its first amended complaint , filed on May 21, 2021, Blenheim added claims under federal and state antitrust laws. In response, the d efendants filed motions to dismiss under Federal Rules of Civil Procedure 12(b)(1) ( l ack of subject

- matter jurisdiction) and 12(b)(6) (failure to state a claim) , contending , first , that the district court lacked jurisdiction over Blenheim’s tort claims by reason of the Foreign Sovereign Immunities Act and , second, that t he complaint failed to state antitrust claims because they were barred by the applicable four

- year statute of limitations and , in any event , failed to satisfy the requirements of the Foreign Trade Antitrust Improvements Act. The district court agreed with the defendants ’ positions and, by order dated September 30, 2021 , dismissed Blenheim’s first amended complaint. From the district court’s o rder, Blenheim filed this appeal , contending (1) that the offset transaction or the separate brokerage agreement was “commercial activity” and therefore was excepted from the immunity conferred by the Foreign Sovereign Immunities Act; (2) that the antitrus t claims “accrued” within four years of its original complaint and that its first amended complaint adding the antitrust claims related back to the filing date of the original complaint; and (3) that its antitrust claims satisfied the requirements of the
F oreign Trade Antitrust Improvement Act based on the alleged anticompetitive conduct’s sufficient effect on U

. S

. commerce. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 8 of 239 II Blenheim contends first that the district court erred in dismissing its tort claims against South Korea for lack of subject

- matter jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”) , 28 U.S.C. §§ 1330, 1602

– 1611, because the basis for its claim s

was “ commercial activity ” by South Korea , which is ex ce pted from the immunity conferred by the Act

. Th e FSIA provides that “a foreign state shall be immune from the jurisdiction of the

courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.” 28 U.S.C. § 1604 (emphasis added) ; see also id. § 1330 (pro viding district
courts with original jurisdiction over foreign states “not entitled to immunity under §§ 1605

- 1607”). Blenheim contends, however, that its claims fall within the exception relating to “commercial activity ” as set forth in § 1605(a)(2). Th at section provides: A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case

— in which the action is based:
upon a commercial activity carried on in the United States by the foreign state ; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere ; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States

. 28 U.S.C. § 1605(a)(2) (emphasis added) (reformatted for clarity). And “commercial activity,” which is the subject of each exception , is defined a s: either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 9 of 2310 determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. Id . § 1603(d). Blenheim’s argument thus raises , at i t s core, the question of whether its tort claims are based on “commercial activity,” as excepted from the immunity from jurisdiction conferred by § 1604. As a general principle, the subject

- matter jurisdiction of a district court is a question of law for the court, not the jury, to decide. W hen a defendant files a motion under Rule 12(b)(1) challenging subject

- matter jurisdiction and rel ying simply on the allegations of the comp laint, the court must take the jurisdictional facts alleged as true

— as in the case of a motion filed under Rule 12(b)(6)

— and determine , as a matter of law , whether the court has jurisdiction. See Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 200 9) . B ut if the defendant disputes the facts alleged for jurisdiction, providing t he court with contradicting facts, the court “may go beyond the complaint, conduct evidentiary proceedings, and resolve the disputed jurisdictional facts.” Id. Under the FSIA , a foreign state is “presumptively immune” from the jurisdiction of U.S. courts, Saudi Arabia v. Nelson , 507 U.S. 349, 355 (1993), and when the foreign state
asserts immunity from jurisdiction under the Act, the “ focus shifts ” to whether the plaintiff has demonstrated a n exception to such immunity , a question of law, Wye Oak Tech. , Inc. v. Republic of Iraq , 666 F.3d 2 05, 212 (4th Cir. 2011) (quoting Phoenix Consulting Inc. v. Republic of Angola , 212 F.3d 36, 40 (D.C. Cir. 2000) . We review the district court’s ruling on FSIA jurisdiction de novo , see BAE Sys. Tech. Sol. & Serv s ., Inc. v. Republic of Korea’s USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 10 of 2311 Def. Acquis ition Pro gram Admin. , 884 F.3d 463, 473 (4th Cir. 2018), although we review the court ’ s underlying findings of fact under the clear error standard. Here, however, the governing facts are those of the complaint, which we accept as true for purposes of our analysis

. In this case, when t he defendants asserted a lack of jurisdiction under the FSIA, Blenheim contended that the conduct alleged in the complaint was based on “commercial activity,” a s excepted from immunity from jurisdiction under § 1605(a)(2) . Focusing mostly on its obligation under the transaction to pro cur e the military satellite for South Korea, it now asserts : Blenheim’s claims are principally based upon the commercial transaction that provided a military satellite to S outh Korea as an “ offset ” for the F

- 35 purchase. This transaction was implemented through commercial contracts executed solely by South Korea and Lockheed (to deliver the satellite and related services to South Korea), and by Lockheed with Airbus SAS (to supply the satellite to Lockheed). The U.S. government was not a party to those contracts, and was not permitted to be a party to those contracts

. * * * The U.S. government never took title to the satellite, and thus did not act as an intermediary for this “ offset ” in the way it did for the F

- 35s. The district court’s conclusion with respect to the F

- 35 sale is therefore inapplicable to the satellite piec e of the transaction

. * * * Blenheim’s claims are based principally upon the procurement and financing of the satellite purchase, which was clearly commercial activity. Blenheim argues that, following the FSIA’s directive to consider the “nature ” of the activity, the offset transaction was commercial because it simply involv ed “the purchase and sale of goods.” It argue s further that it i s irrelevant whether the goods bein g purchased

c ould only be purchased by sovereigns for sovereign purposes , “such as military equipment USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 11 of 2312 acquired for national defense , ” or whether they we re “ sold through the [Foreign Military Sales] Program.” The defendants do not deny Blenheim’s characterization of the offset transaction as the sale of good s to South Korea , but they contend that Blenheim’s argument is framed at too general a level. Rather, they argue , the inquiry must f ocus on whether the activity was of a type “exclusively reserved to sovereigns.” When the inquiry is so directed , they maintain , it become s clear that the sale of the F

- 35s and the military satellite , as a “ F oreign
M ilitary S ale , ” could only be made between sovereigns exercising sovereign authority. As they argue:
In [ a F oreign M ilitary S ale], the sovereign has no privity of contract with t he private contractor.

. . . In fact, the foreign sovereign effectively delegates control to the U.S. Government, from negotiating terms with the manufacturer’s price and more, and it cannot directly sue the contractor for its performance.

. . . [Foreign Military Sales] transactions are also subject to various national security and defense policies, and the foreign sovereign must meet a host of conditions. . . . Indeed, the [ A rms Export Control Act] conditions [Foreign Military Sales] on a finding by the President that such sale will strengthen the security of the United States and promote peace. At the outset, w e agree with the defendants’ observation that Blenheim’s definition of commercial activity is made at too general a level, such that it would ess entially
encompas s every purchase or sale of goods involving a foreign sovereign . We conclude that not every purchase of goods by a sovereign is “commercial activity.” Some by th eir
nature are , and s o me are not. Nonetheless, the issue is somewhat different. As the Supreme
Court has pointed out, it is “ whether the particular actions that the foreign state performs ”

are “ the type of actions by which a private party engages in trade or commerce.” Republic USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 12 of 2313 of Argentina v. Weltover , Inc. , 504 U.S. 607, 614 (1992) (first emphasis added) (cleaned up)

. The FSIA defines “commercial activity” as “a regular course of commercial conduct” or a “particular commercial transaction.” 28 U.S.C. § 1603(d). But i t does not define “commercial.” Rather, i t provides only interpretative guid anc e , stating: The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose

. Id . (emphasis added). T he Supreme Court observed, “ If this is a definition, it is one distinguished only by its d iffi dence; as we observed i n our most recent case on the subject, it ‘leaves the critical term “ commercial ” largely undefined.’” Nelson , 507 U. S. at 359 (quoting Weltover , 504 U.S. at 612). But the Cou r t nonetheless undertook to defin e the term, beginning with its initial observation that Congress intended the immunity to appl y to “sovereign or public acts ( jure imperii )” and not to acts that ar e “private or commercial in character ( jure gestionis ).” Id. at 360. I t then concluded : [A] state engage s in commercial activity

. . . where it exercises only th ose powers that can also be exercised by private citizens, as distinct from those powers peculiar to sovereigns . Put differently, a foreign state engages in commercial activity . . . only where it acts in the manner of a private player within the market

. Id. (emphasis added) (cleaned up); see also Weltover , 504 U.S. at 614. Thus, when the sovereign engages in a transaction peculiar to sovereigns

— one in which private part ies cannot engage

— it is engaged in sovereign act ivity that is not excepted from the i mmunity conferred by the FSIA , even if it involves the purchase of goods

. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 13 of 2314 Applying this test to the offset transaction in which Blenheim was a part icipant and from which it was subsequently “cut out,” we conclude that South Korea was engaged in conduct p eculiar to sovereigns and therefore was not engaged in “ commercial activity ” as excepted from the immunity from jurisdiction conferred by the FSIA

. We begin with the observation that the F

- 35s and the coordinating military satellite

— the subjects of the offset transaction

— involve d highly advanced technology and that the sale of F

- 35s was restricted as a Foreign Military Sale and therefore could only be made with the approval and supervision of the U.S. government , and then only to a friendly country . It was also subject to controll ing considerations of national security and public policy. While the satellite was manufactured by Airbus , a foreign company outside the United States, it was nonetheless to be designed with next

- generation capabilities t hat include d the capability of engaging with the F

- 35s, and its inclusion in the offset transaction

was subject to the United States’ approval and supervision . Indeed, the money for the satellite had to be paid to the United States and only then was disbu rsed by it , as provided by the terms of the approved transaction

. Foreign M ilitary S ales cannot be made except in compliance with the A rms E xport C ontrol A ct , 22 U.S.C. § 2751 et seq. , which requires approval of sales by the President of the United States and certification to Congress. And the P resident can approve such a transaction on ly if, among other things, (1) the President finds that the defense articles “will strengthen the security of the United States and pro mote world peace ”; (2) the country to whom the articles are to be provided agree s “ not to transfer title to, or possession of ” them without the consent of the President; and (3) the country receiving the goods agrees to USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 14 of 2315 “ maintain the security ” of the m
. Id . § 2753(a). Moreover, private parties participating in
F oreign M ilitary S ales are subject to criminal penalties if they are not appropriately registered and licensed. Id. § 2778(b), (c).
In t his case , the nature of the offset transaction was a military procurement by South Korea from the United States of military items manufactured by Lockheed and Airbus, which was subject to plenary U.S. government control in furtherance of a policy of “international defense coo peration among the United States and those friendly countries to which it is allied by mutual defense treaties.” 2 2 U.S.C

. § 2751. And transactions such as the offset transaction in this case c an be approved “only when they are consistent with the foreig n policy interest s of the United States.” Id. It is clear that a private party could not engage in such a procurement , whether as buyer or seller. S uch activity , by its nature, involves the transfer of military assets only to sovereign s and then only in furtherance of U.S. public policy and mutual mili t ary cooperation between countries. Moreover , it is not activity directed or influenced by the market but rather by the President ’s and Congress’s judgment on national security concerns. Foreign M ilitary Sales “reflect [] the national security interests of the United States , ” Sec’y of State for Defence v. Trimble Navigation Ltd. , 484 F.3d 700, 707 (4th Cir. 2007), and therefore have a special contract structure that does not permit designati o n of th e transaction as a “commercial activity.” Indeed, apart from the Arms Export Control Act, the entire procurement activity and transaction in this case was inherently sovereign activity

. A ctivit ies such as creating and maintaining armed forces and obtain ing for them arms and other tools of war

— supplied only by sovereigns and to sovereigns in furtherance of mutual defense arrangements

— are USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 15 of 2316 peculiarly sovereign activit ies . And while the activity here did not involve the creation of armed forces, it did involve providing them with F

- 35s that can only be obtained from the
U.S. government and only provided to a friendly government . Moreover, the sale of F

- 35s
to South Korea was conditioned on the U

. S . government ’ s determination that the transaction would advance goals related to foreign relations and national defense. Even the F

- 35s’ manufacturer cannot engage in that activity , much less other private parties. Thus, t he activity at issue in this case was not the type that c ould be pursued by private citizens or corporations . A sovereign “ engag es in commercial activity . . . only where it
acts in the manner of a private player within the market .” Nelson , 50 7 U.S. at 360 (cleaned up). It follows that South Korea was not engaged in “commercial activity” within the meaning of the FSIA. Blenheim seeks to avoid th is conclusion by arguing that the harm to it was isolated to its arrangement with Airbus for the manufacture and sale of three satellites, two of which Blenh eim would have operated itself . It thus s eeks to break out its contract benefits from the offset transaction as a whole in order to argue that the satellite transaction was commercial because a private person or corporation could purchase satellites from Airbus. But this argument ignores Blenheim’s own characterization of the transaction

. The complaint described South Korea a s having an indispensable role

. It also described the satellite as satisfying South Korea ’s needs and military specifications , whi ch were classified. Moreover, it alleged that the offset transaction, including Blenheim’s arrangement with Airbus for the manufactur e of the satellites, wa s complicated , integrating many components and parties and requiring Blenheim’s expertise to design it . Blenheim’s USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 16 of 2317 arrangement with Airbus was a necessary and integral part of the procurement by South Korea of the F

- 35 s . As Blenheim alleged, it designed the entire transaction as an integrated offset deal, i n which “all four major stakeholders” would benefit

— South Korea, Lockheed, Airbus , and Blenheim. It also alleged that the U

. S

. Department of Defense “play[ed] a major role in the sales” and was an “essential player.” Indeed, Blenheim’s particular arran gement with Airbus for the purchase of the satellites was also regulated by the United States . As Blenheim alleged, “ [E] ven though sovereigns demand offsets as a ‘sweetener’ for defense procurements from foreign suppliers, in the U.S. [ F oreign M ilitary
S a les] context, those sovereigns end up footing the bill for the offset with all monetary transactions flowing through the Pentagon .” (Emphasis added). Blenheim relies on two district court cases to argue that e ven taking the offset transaction as an integr ated activity involving South Korea , the offset transaction by its
nature was commercial activity

. In the first case , Virtual Def . & Dev. Int’l, Inc. v. Rep ublic of Moldova , 133 F. Supp. 2d 1 (D.D.C. 1999), Moldova was seeking to sell Russian

- made MiG fighter planes “ to b olster its weakening economy.” Id . at 2

. The MiGs were being sold on the open market, drawing interest from Iran , to the alarm of the United States

. Moldova then entered into a contract with Virtual Defense as broker to help it f ind a buyer that the United States would approve. The MiGs were thereafter purchased by the United States, and Virtual Defense then sued Moldova for its commission on the transaction . The district court concluded that the transaction was an open market t ransaction in which a ny private entity could have participated and was therefore “ commercial ” for purposes of the
FSIA. Id . at 4. I t explained: USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 17 of 2318 In the instant case, Moldova acted as a private participant in the market when i[t] engaged in discussions wit h Virtual regarding the sale of the MiGs and when it eventually sold the MiGs to the United States. The mere fact that the goods sold by Moldova were MiG

- 29 plan e s does not change the nature of Moldova’s actions. Accordingly, the court concludes that the relevant actions of Moldova constitute commercial activities within the definition espoused in the FSIA. Id

. The transaction in Virtual Defense is clearly distinct from the highly regulated offset transaction in this case involving South Korea’s procurement of F

- 35s and a related military satellite. While Virtual Defense did involve the sale of technically advanced military aircraft, the structure of the transaction was nothing more than an ordinar y commercial sale by Moldova, without any regulato ry oversight

. Indeed, the United States became involved precisely because the MiGs were being sold o n the open market , and possibly to Iran

. The second case relied on by Blenheim, Simon v. Republic of Hu ngary , 443 F. Supp

. 3d 88 (D.D.C. 2020), likewise does not significantly advance Blenheim’s argument. While
Simon conclude d that the F oreign M ilitary S ale involved there was commercial activity, it did so by analyzing the transaction a t issue as one “like a contract to buy army boots , ” i d.
at 110 (cleaned up) , which stands in sharp contrast to the goods being procured here and the circumstances of the procurement . Moreover, the court’s reasoning gave scant attention to the manner in which F oreign M ilitary S ales transactions are structured and regulated. At bottom, we conclude that the offset transaction in this case was not the type of activity in which a private p arty could have participated and that South Korea did not act USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 18 of 2319 in the manner of a priva te party in its procurement of the F

- 35s and the military satellite

. See Nelson , 507 U.S. at 360 (quoting Weltover , 504 U.S. at 614 )

. Because we conclude that the offset transaction was not commercial activity as

ex cep ted from the immunity from jurisdic tion conferred in the FSIA, we affirm the district court’s conclusion that it lacked jurisdiction over Blenheim’s tort claims

. See 28 U.S.C. §§ 1604, 1367.

III With respect to Blenheim’s antitrust claims, the district court dismissed them based

on both the applicable four

- year statute of limitations and its conclusion that they were barred by the F oreign T rade A ntitrust I mprovements A ct (“FTAIA”), 15 U.S.C. § 6a

. Blenheim contends that both ruling s were in error. On the limitations ruling, the district court concluded that Blenheim’s claims “accrued” on October 6, 2016, when, as alleged in the complaint, Lockheed sent Blenheim a letter giving it “formal notice . . . of the immediate termination of the [ International Brokerage Agreement ] ” between Lockheed and Blenheim. While Blenheim commenced this action o n December 31, 2020, more than four years after the October 2016 date , it contends that it had challenged the October 2016 letter as invalid beca use Lockheed did
not ha ve cause to terminate the arrangement and that the agreement was actually terminated only when Lockheed responded to that challenge in January 2017 with a no

- cause 30 days’ notice of termination , which was within the four

- year period before Blenheim filed its original complaint. Blenheim also argues that its injury “was not complete” until the USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 19 of 2320 restructuring of the offset transaction was complete d and the military satellite was actually launched in 2020 , thus deferring or extending to 2020 when its action accrued

. The Clayton Act , under which Blenheim brought its federal antitrust claim , creates a private cause of action for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws

. ” 15 U.S.C. § 15(a) (emphasis added)

. And § 15b provides that such actions “shall be forever barred unless commenced within 4 years after the cause of action accrued .” Id . § 15b. The Virginia statute, on which Blenheim brings its state antitrust claim, provides similarly. See Va

. Code Ann

. § § 59

. 1

- 9.12(b) , 59.1

- 9.14.
An antitrust action “ accrues ” “when a defendant commits an act that injures a plaintiff’s business.” Z enith Radio Corp. v. Hazelt i n e Research , Inc. , 401 U.S. 321, 33 8 (1971) (emphasis added) . “Thus, if a plaintiff feels the adverse impact of an antitrust conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages i ncurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date.” Id. at 339 ; see also GO Computer, Inc. v. Microsoft Corp. , 508 F.3d 170, 177 (4th Cir. 2007) (noting that “a cause of action genera lly accrues when a defendant commits an act that causes economic harm to a plaintiff”). Of course, a defense based on the statute of limitations is ordinarily raised as an affirmative defense, see Fed. R. Civ. P. 8(c), and the burden o f establishing th at affirmative defense rests on the defendant , see Goodman v. Praxair, Inc. , 494 F.3d 458, 464 (4th Cir. 2007). Th erefore , the limitations defense cannot usually be addressed on a motion to dismiss u nder Rule 12(b)(6) , which challenges only the legal sufficiency of the complaint , USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 20 of 2321 not usually affirmative defenses that the defendant can assert to the complaint. “But in the relatively rare circumstances where f acts sufficient to rule on an affirmative d efense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6)

. ” Id. ; see also Richmond, Fredericksburg & Potomac R.R. v. Forst , 4 F.3d 244, 250 (4th Cir. 1993). In this case, t he defendants relied solely on the allegations of the complaint in moving to dismiss the antitrust claims as untimely . A ccordingly , to review the district court’s ruling granting that motion, we must turn to the complaint. Blenheim’s complaint allege d , as relevant to when its antitrust cause s of action accrued, that “from 2012 through 2016 Blenheim Capital devised and structured an innovative offset deal,” as described in detail . After Blenheim had “conceived, modeled, and begun the implementation” of the offset transaction, L ockheed, Airbus , and South Korea “conspired to cut Blenheim out of the deal , ” and they thus “benefitt ed from years of work and effort by Blenheim . . . to maximize their own advantages and profits.” The

c omplaint alleged further that the defendants “agree d to proceed with a restructured transaction that cut out Blenheim in late 2016 ” (emphasis added), thus misappropriating Blenheim’s “ years of effort” on the offset transaction and leaving it with nothing in return

. In addition, the complaint alleged that while South Korea had paid Lockheed $150 million , which Lockheed was to pay to Blenheim in installments as seed money to financ e the satellites, Lockheed paid Blenheim only one installment of $45 million, leaving $105 million unpaid. According to the comp laint, by late 2016, Blenheim had paid $20 million of the $45 million to Airbus as commitment for the financing, which never occurred. And Blenheim was cut out from the transaction because , as alleged, Lockheed became USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 21 of 2322 concerned that “Blenheim would become a competitor . . . for the sale and leasing of satellite capacity

. ” I n furtherance of the conspiracy, “on October 6, 20 1 6, [Lockheed] provided Blenheim with a purported ‘formal notice . . . of the immediate termination’ of the [International Brokerage Ag reement] for cause

. ” T hereafter, “ [ h ] aving conspired to cut Blenheim out of the offset transaction, Lockheed, Airbus, and South Korea proceeded with the military satellite procurement and worked to obtain the necessary approvals . . . to do so. On July 2 0, 2020 , the satellite was launched from Cape Canaveral, Florida. . . . Though the launch was the fruit of Blenheim’s labors, it received nothing.” Not only do the complaint’ s allegations place October 6, 2016 , as the date when Blenheim was cut out of the offset transaction, the y also describe how, as of that date, Blenheim was injured in its business and property and Lockheed, Airbus, and South Korea

were enriched by the product of Blenheim’s years of work and effort, seizi ng t he fruits and denying Blenheim the benefit s of the deal. Indeed, a s of that time, October 6, 2016, Blenheim had already paid $20 m illion to Airbus as a finance commitment, for which it received nothing because of the October 6, 2016 termination. Fina lly, as the complaint alleged, Blenheim was also denied, as of that date, the benefit of procuring satellites and obtaining a profit from their operation. Indeed, the complaint state d dramatically that after October 6, 2016, Blenheim “received nothing.” Under these circumstances, we conclude that Blenheim’s cause of action accrued on October 6, 2016, when Blenheim felt the “adverse impact of [ the ] antitrust conspiracy.” Zenith Radio Corp. , 401 U.S. at 339. Blenheim argues that it was not injured until January 2017 because it was only then that Lockheed legally terminate d the brokerage agreement. But the question of whether USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 22 of 2323 Lockheed’s October 2016 termination of the brokerage agreement cause d Blenheim injury does not depend on whether th at termination was legal. The complaint alleges clearly that Lockheed ’s October 2016 termination, whether legal or illegal , cut Blenheim out of the transaction and thus deprived it of its anticipated benefits. Also , Blenheim ’s alternative argu ment that the accrual date of its action was extended until the restructur ed offset transaction was complete , i.e. , when the satellite was launched in 2020 , lacks legal support

. T he fact that some damages were to accrue in the future do es not extend the a ccrual date. See Zenith Radio Corp. , 401 U.S. at 339. A s the Supreme Court noted, to recover future damages, the plaintiff still must “ sue within the requisite number of years from the accrual of the action,” when it first felt “the adverse impact of [ th e ] antitrust conspiracy.” Id. Because Blenheim felt adverse impacts immediately upon Lockheed’s October 2016 termination of the brokerage agreement, the date of the satellite launch is not relevant to the date when the cause of action accrued.
A ccordingly , we affirm the district court ’ s ruling that Blenheim’s antitrust claim s

a re barred by the applicable four

- year statute of limitations. While the district court also concluded , indeed persuasively , that the FTAIA barred Blenheim’s antitrust claim s because the anticompetitive conduct alleged did not sufficiently affect U.S. domestic or import commerce, we do not address th at issue in light of our ruling affirming dismissal on the basis of the statute of limitations. The judgment of the district cou rt is , accordingly,
AFFIRMED

. USCA4 Appeal: 21-2104 Doc: 41 Filed: 11/15/2022 Pg: 23 of 23