*

The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of

Michigan, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0065p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

CARRIER CORPORATION; CARRIER SA;

CARRIER ITALIA S.P.A.,

Plaintiffs-Appellants/Cross-Appellees,

v.

OUTOKUMPU OYJ; OUTOKUMPU COPPER

PRODUCTS OY; OUTOKUMPU COPPER

FRANKLIN, INC.; OUTOKUMPU COPPER

(U.S.A.), INC.,

 Defendants-Appellees/Cross-Appellants,

MUELLER INDUSTRIES, INC.; MUELLER

EUROPE LTD; EUROPA METALLI SPA;

TREFIMETAUX SA,

Defendants.

X

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N

Nos. 07-6052/6114

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 06-02186—Bernice Bouie Donald, District Judge.

Argued: October 13, 2009

Decided and Filed: March 2, 2012 

Before: MOORE and COOK, Circuit Judges; LUDINGTON, District Judge.*

_________________

COUNSEL

ARGUED: David M. Schnorrenberg, CROWELL & MORING LLP, Washington, D.C.,

for Appellants. William H. Rooney, WILLKIE FARR & GALLAGHER LLP, New

York, New York, Eric Mahr, WILMER HALE, Washington, D.C., for Appellees.

ON BRIEF: David M. Schnorrenberg, CROWELL & MORING LLP, Washington,

D.C., for Appellants. William H. Rooney, WILLKIE FARR & GALLAGHER LLP,

New York, New York, Eric Mahr, Caroline T. Nguyen, WILMER HALE, Washington,

1
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 2

D.C., Robert L. Crawford, WYATT, TARRANT & COMBS, LLP, Memphis,

Tennessee, for Appellees. 

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants Carrier

Corporation, Carrier SA, and Carrier Italia S.p.A. (collectively “Carrier”) appeal the

district court’s dismissal of their claims under the Sherman Act and the Tennessee Trade

Practices Act for lack of subject-matter jurisdiction and for failure to state a claim.

Defendants-Appellees Outokumpu Oyj (“OTO”), Outokumpu Copper Products Oy

(“OCP”), Outokumpu Copper (U.S.A.), Inc. (“Outokumpu U.S.A.”), and Outokumpu

Copper Franklin, Inc. (“Outokumpu Franklin”) (collectively “Outokumpu”), and Mueller

Industries, Inc. and Mueller Europe LTD cross-appealed, arguing that the district court’s

ruling can be affirmed on the alternative bases that Carrier’s complaint is time-barred

and that the district court lacked personal jurisdiction over Mueller Europe, OTO, and

OCP. Carrier has since settled its claims with the two Mueller entities, and those

defendants have been dismissed from this appeal. As to the remaining parties, we

conclude that the district court had subject-matter jurisdiction over the present dispute

and that Carrier’s complaint is not time-barred. We further conclude that Carrier’s

complaint adequately states a Sherman Act claim against all of the Outokumpu

Defendants and that the district court had personal jurisdiction over OTO and OCP

individually. We therefore REVERSE district court’s judgment as to all Outokumpu

Defendants and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

A. The Copper Tubing Market

Copper tubing normally is “divided into two main product groups.” Joint

Appendix (“J.A.”) at 0036 (Am. Compl. ¶ 41). First, there are “plumbing tubes . . .

which are used for water, oil, gas, and heating installations.” Id. Second, there are
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 3

1

As this case was pending, Carrier reached a settlement agreement with both of the Mueller

entities. Thus, in accordance with Sixth Circuit Rule 33(b) and Federal Rule of Appellate Procedure 42(b),

Mueller Industries, Inc. and Mueller Europe LTD have been dismissed from this appeal. Carrier Corp.

v. Outokumpu Oyj, Nos. 07-6052, 07-6114 (6th Cir. Nov. 15, 2011) (unpublished orders). Cases Nos. 07-

6115 and 07-6116 have also been dismissed. (6th Cir. Nov. 10, 2011) (unpublished order).

“higher value-added industrial tubes.” Id. The latter category is divided into several

subgroups, the “most significant [of which] in terms of volume is tubing for airconditioning and refrigeration (“ACR”) applications.” Id. The present litigation

concerns the market for ACR copper tubing.

Plaintiff Carrier Corporation is a Delaware corporation and Plaintiffs Carrier

France SA and Carrier Italia S.p.A. are both subsidiaries of Carrier. Carrier, along with

its affiliates, is “the world’s largest manufacturer of air-conditioning and commercial

refrigeration equipment” and consequently, one of the world’s largest purchasers of ACR

copper tubing. Id. ¶ 1. According to Carrier’s complaint, Defendant OTO and its wholly

owned subsidiary OCP are two Finnish companies that, during the relevant time period,

produced or sold ACR copper tubing and, either directly or through their subsidiaries,

imported it into the United States to sell to U.S. customers. Id. ¶¶ 22, 26. Carrier’s

complaint further states that Defendants Outokumpu U.S.A. and Outokumpu Franklin,

both American subsidiaries of OCP, were “engaged in the production or sale of ACR

Copper Tubing in the United States.” Id. ¶ 23–24. And Outokumpu Franklin in

particular allegedly sold “substantial quantities of ACR Copper Tubing to Carrier in the

United States.” Id. ¶ 24. The complaint further alleges that OTO “had effective control

over the commercial policy and business decisions of its subsidiaries, and did business

through its subsidiaries.” Id. ¶ 25.1

B. The European Commission’s 2003 and 2004 Decisions

Much of this lawsuit revolves around two decisions issued by the Commission

of the European Communities (“EC”). The first came in December 2003, when the EC

found that OTO and OCP, along with several other companies, participated in a

conspiracy in which they “agreed on price targets and other commercial terms for

industrial tubes, coordinated price increases, [and] allocated customers and market
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 4

shares” in violation of European law. J.A. at 0283 (EC ACR Decision ¶ 2). The EC

determined that this conspiracy lasted from at least May 3, 1988 to March 22, 2001. The

EC’s findings, however, do not identify any conspiratorial agreements with respect to

U.S. markets.

In September 2004, a separate EC decision found a similar violation of European

law in the market for plumbing tubes. The EC again found OTO and OCP liable, this

time along with with Mueller Industries and Mueller Europe. J.A. at 0072 (EC Plumbing

Decision ¶¶ 1–2). The EC decision emphasized, however, that “the arrangements

pertaining to plumbing tubes on the one hand and those relating to industrial tubes on the

other hand involved different companies (and employees), and were organised in a

different way.” Id. ¶ 5. Once again, the decision did not address any whether any

conspiracy extended beyond the European markets.

C. The Present Litigation

In its amended complaint, Carrier essentially alleges that the European

conspiracy uncovered by the EC was also directed at the U.S. market for ACR industrial

tubes, thereby violating the Sherman Act and the Tennessee Trade Practices Act. Carrier

is not the first plaintiff to make this allegation—the district judge in this case has also

dismissed two similar cases involving essentially the same defendants. See Am. Copper

& Brass, Inc. v. Boliden AB, No. 04-2771 DV (W.D. Tenn. Oct. 10, 2006) (unpublished

opinion); In re ACR Copper Tubing Litig., No. 06-2207 (W.D. Tenn. July 26, 2007)

(unpublished opinion).

Carrier specifically alleges that between 1988 and 2001, the Defendants

conspired to raise the price for ACR tubing by developing “a customer and market

allocation scheme” under which “Carrier’s business in the United States was allocated

to the Outokumpu defendants.” J.A. at 21 (Am. Compl. ¶ 4). The other conspirators,

including Wieland-Werke AG (“Wieland”) and KM Europa Metal AG (“KME”),

“agreed not to pursue” Carrier’s U.S. business. Id. In return, Wieland and KME

received Carrier’s European business and the Outokumpu Defendants agreed not to

aggressively pursue it. As a result of these agreements, Carrier maintains that it “paid
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2

On appeal, Carrier has limited its claims to purchases made within the United States. Carrier

Br. 1 at 23 n.2.

artificially inflated and supra-competitive prices for ACR Copper Tubing in the United

States, Europe and elsewhere.” Id. ¶ 2.2 Outokumpu, Wieland, and KME were able to

do this, Carrier alleges, because “they were the three largest producers of ACR Copper

Tubing in the world,” which resulted in “circumstances [that] facilitated the conspiracy.”

Id. ¶ 5. Carrier also explains that Outokumpu, Wieland, and KME were eager to

preempt alternative suppliers that could undercut their prices. To that end, “[t]hey

enlisted the support of others in the conspiracy,” including Mueller Industries and

Mueller Europe. Id. ¶ 6. The Mueller entities agreed not to pursue Carrier’s business

in the ACR tubing market, and in return, the other conspirators allocated different

markets to Mueller.

Carrier substantiates these claims in part by drawing from details found in the EC

industrial-tubes decision. For instance, like the EC decision, the complaint alleges that

Outokumpu and the other co-conspirators coordinated their conspiracy through the

biannual meetings of the trade association known as the Cuproclima Quality Association.

In doing so, the complaint quotes various incriminating documents uncovered by the EC

investigation, details the time and place of specific meetings, and also describes specific

price targets set by the alleged conspirators.

Carrier’s complaint also includes allegations that were not drawn from the EC

decisions. Carrier argues that these allegations provide circumstantial evidence that the

market-allocation scheme reached beyond the European markets and into the United

States. Indeed, Carrier maintains that the market for ACR copper tubing was global in

scope and, as further evidence of such an arrangement, points to an Outokumpu

document uncovered in the EC investigation that references a “Global Agreement”

between the co-conspirators. Along these lines, Carrier also reasons that any successful

conspiracy must have involved the United States so as to prevent a multinational

corporation like Carrier from “purchas[ing] all of the corporation’s world-wide demand

for ACR Copper Tubing in the United States and then ship[ping] those products to
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 6

facilities world-wide.” Id. ¶ 59. Thus, Carrier maintains that “Defendants and their coconspirators singled out Carrier and other similarly situated companies by devising a

unique global approach for fixing the prices of ACR Copper Tubing offered to Carrier.”

Id. ¶ 61. In support of this global conspiracy, Carrier further contends that Outokumpu

scheduled yearly contract negotiations with U.S. customers that occurred after the fall

Cuproclima meetings and during which the target prices and market allocations were set.

Carrier also alleges that prices in the U.S. remained similar to those in other regions,

which facilitated consistent pricing levels across the relevant markets. Likewise, Carrier

claims that during the period between 1988 and 2001, none of Outokumpu’s coconspirators aggressively pursued business in one another’s markets. But around 2003,

after the cartel disbanded, Wieland and KME suddenly began soliciting Carrier’s U.S.

business.

In December 2006, Outokumpu moved to dismiss the amended complaint under

Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6). The district court

granted the motions on the basis that it lacked subject-matter jurisdiction over Carrier’s

Sherman Act claims. The district court justified the dismissal by observing that the

complaint merely “‘cut-and-pasted,’” J.A. at 926 (July 27, 2006 Dist. Ct. Order at 6),

facts from the EC decisions in a manner that rendered it “‘wholly insubstantial.’” Id.

at 928. The district court was also troubled by the complaint’s use of “facts from the

plumbing tubing and ACR tubing investigations as if they described a single

conspiracy,” which the district court concluded “undermined any credibility the

complaint otherwise possessed.” Id. at 927. According to the district court, the plaintiffs

did “further injury to their argument” by drawing facts from the EC’s decisions when

they supported Carrier’s claims while disregarding contradictory information, such as

the fact that “the EC findings were limited to European conduct.” Id. Apparently for the

same reasons that it lacked subject-matter jurisdiction, the district court also concluded

that the case “lack[ed] a legitimate factual foundation” and therefore warranted dismissal

under Federal Rule of Civil Procedure 12(b)(6). Id. at 931. Carrier appealed, and the

Defendants cross-appealed, raising additional grounds on which to uphold the district

court’s judgment.
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 7

3

Outokumpu also argues that the district court lacked subject-matter jurisdiction because the

alleged conspiracy did not have a “direct, substantial, and reasonably foreseeable effect” on United States

commerce as is required under the Foreign Trade Antitrust Improvements Act of 1992 (“FTAIA”).

15 U.S.C. § 6a. The FTAIA, however, specifically exempts from its reach “import commerce” with

foreign entities. Id. According to F. Hoffmann-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155, 162 (2004),

the FTAIA “initially lays down a general rule placing all (non-import) activity involving foreign commerce

outside the Sherman Act’s reach” and then selectively brings some categories of that excluded conduct

back within the Sherman Act’s strictures. See also IB Phillip Areeda & Herbert Hovenkamp, Antitrust

Law ¶ 272i4, at 307–08 (3d ed. 2006). Areeda and Hovenkamp, in turn, have indicated that “[f]oreign

import commerce involves transactions in which the seller is located abroad while the buyer is domestic

and the goods flow into the United States.” Id. at 290.

Carrier’s claim here is limited to its domestic purchases, and thus, does not involve the type of

foreign commerce that would be implicated by the FTAIA. As a result, even if the FTAIA does present

a jurisdictional limitation—a question that we do not decide here—it does not apply to this case. Cf. DeeK Enters., Inc. v. Heveafil Sdn. Bhd., 299 F.3d 281, 287 (4th Cir. 2002) (concluding, in a case involving

mainly foreign producers selling rubber thread in the United States and elsewhere, that the FTAIA did not

apply “[b]ecause this case involves importation of foreign-made goods, . . . conduct Congress expressly

exempted from FTAIA coverage as ‘involving . . . import trade or import commerce . . . with foreign

nations’” (third and fourth alterations in original)), cert. denied, 539 U.S. 969 (2003).

II. ANALYSIS

A. Jurisdictional Prerequisites

Outokumpu first argues that the district court correctly found subject-matter

jurisdiction lacking because Carrier’s complaint was “wholly insubstantial.” See

Outokumpu Br. at 26. Although the district court’s reasoning was premised on its

determination that the complaint had no substance of its own, Outokumpu’s argument

extends that focus and also maintains that Carrier fails to allege any substantial

U.S.-market involvement, a required element for extraterritorial jurisdiction under the

Sherman Act.3

 We conclude that under either theory, Carrier’s allegations were

sufficient to demonstrate the court’s jurisdiction for purposes of a motion to dismiss.

1. Jurisdiction Under the Sherman Act

Since Judge Learned Hand’s leading opinion in United States v. Aluminum Co.

of America (Alcoa), 148 F.2d 416, 443 (2d Cir. 1945), which proposed the need for

practical limitations on the Sherman Act that would avoid global overreaching, it has

been generally established that the so-called “effects test” limits the Sherman Act “to

those acts (1) that ‘significantly’ or ‘directly’ affect United States commerce, or (2) that

are intended to have an effect, or (3) that are both intended to have and do have such an

effect.” IB Phillip Areeda & Herbert Hovenkamp, Antitrust Law ¶ 272d, at 279–80 (3d
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 8

4

We note that there is some confusion whether the Sherman Act’s requirements in fact speak to

subject-matter jurisdiction. The genesis of this confusion arises from the Supreme Court’s description of

the extraterritorial scope of the Sherman Act in Hartford Fire Ins. Co. v. California, 509 U.S. 794, 796

n.22 (1993), as relating to “jurisdiction.” At the time, Justice Scalia’s dissent disputed that characterization

and sought to clarify that the term did not refer to the court’s subject-matter jurisdiction and instead

referenced the prerequisites for stating a claim on the merits. See id. at 813 (Scalia, J. dissenting); cf.

Restatement (Third) of Foreign Relations Law § 401 cmt. c (1987) (indicating that the term “subject matter

jurisdiction” may be used both in the context of Congress’s power to prescribe legislation and in the

context of a court’s “jurisdiction to adjudicate”). Although Hartford did not squarely address the issue,

many lower courts nonetheless continue to treat the Sherman Act’s extraterritorial limitations as

jurisdictional rather than as elements of a federal antitrust claim. See, e.g., Empagran S.A. v. F.

Hoffmann-LaRoche, Ltd., 417 F.3d 1267, 1268–69 (D.C. Cir. 2005), cert. denied, 546 U.S. 1092 (2006);

United States v. LSL Biotechnologies, 379 F.3d 672, 677–79 (9th Cir. 2004); United Phosphorus, Ltd. v.

Angus Chem. Co., 322 F.3d 942, 948 (7th Cir.), cert. denied, 540 U.S. 1003 (2003). Recent Supreme

Court decisions, however, raise significant questions about the wisdom of that approach.

After Hartford, the Supreme Court has been much more wary of labeling statutory requirements

as “jurisdictional.” Seeking to create a “readily administrable bright line,” the Court has since set out the

general rule that “when Congress does not rank a statutory limitation on coverage as jurisdictional, courts

should treat the restriction as nonjurisdictional in character.” Arbaugh v. Y & H Corp., 546 U.S. 500, 516

(2006); see also Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1244 (2010). Moreover, in Morrison

v. National Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010), the Court determined that questions

ed. 2006) (citing Alcoa, 148 F.2d at 443–44). These standards have since been widely

incorporated into U.S. jurisprudence. Indeed, “it is well established by now that the

Sherman Act applies to foreign conduct that was meant to produce and did in fact

produce some substantial effect in the United States.” Hartford Fire Ins. Co. v.

California, 509 U.S. 764, 796 (1993). The Supreme Court, however, has not delineated

the precise bounds of the effects test, and lower courts are not in agreement as to its

exact scope. Cf. generally Dee-K Enters., Inc. v. Heveafil Sdn. Bhd., 299 F.3d 281, 286

(4th Cir. 2002) (addressing the scope of the effects test and discussing the complexities

inherent in applying the test in cases such as this one, which involve a “mixture of

foreign and domestic elements”). Nonetheless, we need not undertake that task at

present because, regardless of the precise standard, Carrier has sufficiently alleged any

threshold effect on U.S. commerce necessary to survive a motion to dismiss.

Hartford Fire involved Sherman Act claims by U.S. states and private domestic

insurers alleging that a group of mainly foreign reinsurers conspired to limit coverage

of certain casualty risks in a manner that would effectively prevent the domestic insurers

from offering coverage for those risks in certain state markets. 509 U.S. at 795. Without

laying out its reasoning, the Court accepted the reinsurers’ concession that jurisdiction

existed under the Sherman Act, even though the claims plainly involved “foreign

conduct.” Id. at 796–97.4

 The alleged impact on U.S. markets in this case is equally,
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 9

concerning the extraterritorial application of § 10(b) of the Securities Exchange Act of 1934, which has

language that somewhat mirrors that in the Sherman Act, were not jurisdictional. These decisions have

thus questioned the precedential value of the types of “drive-by jurisdictional rulings,” Arbaugh, 546 U.S.

at 511 (internal quotation marks omitted), seen in cases like Hartford. Cf. generally Howard M.

Wasserman, Colloquy Essay, The Demise of “Drive-By Jurisdictional Rulings,” 105 NW. U. L.REV. 947

(2011). Nonetheless, because the parties have not addressed this issue directly, and because our decision

does not hinge on further elucidation of the meaning of “jurisdiction” in this context, we will save the

resolution of this issue for another day.

if not more, direct. Carrier alleges that the U.S. market was intertwined in the

conspirators’ allocation efforts and that the result of that agreement was to raise prices

artificially for ACR copper tubing for transactions between the co-conspirators and

buyers in the United States. J.A. at 0039–40 (Am. Compl. ¶¶ 51, 54). Taking those

allegations as true, as we must do at this stage in the litigation, we have no hesitation in

concluding that Carrier’s complaint meets any threshold jurisdictional requirement

imposed by the Sherman Act on claims involving foreign conduct.

2. Subject-Matter Jurisdiction

Because Carrier has met any required threshold for stating a claim against a

foreign entity under the Sherman Act, we proceed to consider whether the complaint can

survive Outokumpu’s and the district court’s assertion that the allegations were

insufficient to survive Outokumpu’s Federal Rule of Civil Procedure 12(b)(1) challenge.

Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1) “come in two varieties: a facial attack or a factual attack.” Gentek Bldg. Prod.,

Inc. v. Steel Peel Litig. Trust, 491 F.3d 320, 330 (6th Cir. 2007). Under a facial attack,

all of the allegations in the complaint must be taken as true, much as with a Rule

12(b)(6) motion. Id. When the district court relies on a facial analysis, we review its

findings de novo. Lovely v. United States, 570 F.3d 778, 781 (6th Cir. 2009), cert.

denied, 130 S. Ct. 1054 (2010). Under a factual attack, however, the court can actually

weigh evidence to confirm the existence of the factual predicates for subject-matter

jurisdiction. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th

Cir. 1996); see also 2 James Wm. Moore, Moore’s Federal Practice § 12.30[4] (3d ed.

2000) (“[W]hen a court reviews a complaint under a factual attack, the allegations have

no presumptive truthfulness, and the court that must weigh the evidence has discretion
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 10

to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed

jurisdictional facts.”). When the district court does so, we review its findings for clear

error. Lovely, 570 F.3d at 781–82. Outokumpu has presented arguments for both a

facial and factual challenge to subject-matter jurisdiction, and we address each in turn.

a. Outokumpu’s Facial Attack

In order for Carrier’s complaint to allege jurisdiction adequately, it must contain

non-conclusory facts which, if true, establish that the district court had jurisdiction over

the dispute. O’Bryan v. Holy See, 556 F.3d 361, 375–76 (6th Cir.), cert. denied, 130 S.

Ct. 361 (2009). The district court dismissed Carrier’s complaint on the basis that it is

“wholly insubstantial.” J.A. at 0930 (Dist. Ct. Op. at 10). We, however, disagree that

this case presents one of the rare instances that permit a district court to dismiss a

complaint because “the plaintiff’s claims are clearly immaterial, made solely for the

purpose of obtaining jurisdiction or are wholly unsubstantiated and frivolous.” Gentek,

491 F.3d at 332 (internal quotation marks omitted).

Carrier’s complaint describes, in some detail, an elaborate worldwide conspiracy

in which the U.S. market for ACR copper tubing was assigned to Outokumpu.

Furthermore, Carrier alleges that this conspiracy caused the price of goods purchased

within the United States to increase, which in turn caused a direct antitrust injury. In

support of these allegations, the complaint references numerous specific dates during

which the Cuproclima cartel met and the various agreements its members entered into.

Assuming that these allegations are true, as we must, we conclude that Carrier has met

any applicable requirement that it allege a non-conclusory effect on U.S. commerce. Cf.

Hartford, 509 U.S. at 795–97 (finding jurisdictional requirements easily satisfied when

complaint alleged that “London reinsurers . . . conspired to coerce primary insurers in

the United States to offer” certain forms of coverage—a claim that alleged both an

impact on the U.S. insurance market and that the reinsurers’ “conduct in fact produced

substantial effect”).

Outokumpu, which attached the full EC decision to its motion to dismiss,

counters that many of the details contained in the complaint are drawn from the EC
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5

The Defendants further argue that, in any event, the EC decision provides no “positive” support

for a finding of a U.S. conspiracy. Outokumpu Br. 4 at 10. But Carrier need not provide any additional

support for its assertions. Carrier has directly alleged that the Defendants engaged in an unlawful U.S.-

focused market-allocation scheme; it need not offer any additional evidentiary support at the pleading

stage.

industrial-tube decision that found no evidence that the cartel’s focus extended beyond

Europe. Like the district court, Outokumpu argues that Carrier’s complaint includes

misleading quotes from the EC decision and omits language explaining that the

conspiracy applied only to European markets. As a consequence, Outokumpu argues

that any details regarding specific meetings and agreements occurring during the

Cuproclima meetings are of no assistance to Carrier because they relate only to a

European conspiracy. Furthermore, when those portions of the complaint are excluded,

as Outokumpu insists they must be, Carrier is left with nothing more than conclusory

allegations.

We are unpersuaded by this argument. Initially, Outokumpu overstates the

degree to which Carrier’s complaint conflicts with the EC decision. For instance, as

Carrier points out, the EC industrial-tubes decision clearly states that “[i]nsofar as the

activities of the cartel relate[] to sales in countries that are not members of the

Community . . . they lie outside the scope of this Decision.” J.A. at 0332 (EC ACR

Decision ¶ 229). Thus, any silence on the part of the EC decision as to U.S. markets may

simply reflect the limited scope of the decision. Outokumpu responds that “even a

cursory review of the EC’s cartel decisions makes clear that Commission decisions

addressing cartels that extend beyond Europe regularly describe the entire geographic

scope of the cartel.” Outokumpu Br. 2 at 47. But the mere fact that the EC does at times

look beyond Europe should not trump its otherwise explicit statement that it is not

concerned with outside markets.5

In addition, to the extent that there is a conflict between Carrier’s allegations and

the EC decision, we do not agree that Carrier is bound by the EC’s findings.

Ordinarily,“[d]ocuments that a defendant attaches to a motion to dismiss are considered

part of the pleadings if they are referred to in the plaintiff’s complaint and are central to

her claim.” Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (alteration in
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 12

6

The Defendants maintain that the district court was permitted to take judicial notice of the EC

decisions. They also argue that judicial notice is a permissible basis for considering a letter submitted by

EC Director Kirtikumar Mehta, which reiterated that the scope of the EC industrial-tubes decision was

“limited to the European territory.” J.A. at 0919 (Mehta Letter at 1). But here again, judicial notice would

be appropriate only to prove the fact that the decisions and the letter existed, not the truth of the matters

stated therein. Scotty’s Contracting & Stone, Inc. v. United States, 326 F.3d 785, 790 n.1 (6th Cir. 2003)

(“[J]udicial notice of a fact is generally only appropriate when there is no dispute regarding the fact.”).

original) (internal quotation marks omitted). The general rule is that “[i]f inconsistent

with the allegations of the complaint, the exhibit controls.” Mengel Co. v. Nashville

Paper Prod. & Specialty Workers Union, No. 513, 221 F.2d 644, 647 (6th Cir. 1955).

We have recognized, however, that it is not always appropriate to “assume everything

[in an exhibit] is true.” Jones v. City of Cincinnati, 521 F.3d 555, 561 (6th Cir. 2008),

cert. denied, 129 S. Ct. 909 (2009). In particular, although “[a] blanket adoption rule

makes sense in the context of an attached contract or loan agreement because the

contract represents an agreement between two or more parties to which the law binds

them,” the rule makes much less sense when, as is the case here, the exhibit is not a

legally dispositive document. N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend,

163 F.3d 449, 455 (7th Cir. 1998). When an exhibit is a contract, it is reasonable to

consider the entire document because the contract has independent legal significance.

Here, however, Outokumpu is citing the EC’s findings not merely to prove their

existence but rather to prove the truth of the matters asserted within them. See Jones,

521 F.3d at 561 (finding that transcripts of an interview attached to the plaintiff’s

complaint could be considered as an allegation that those statements were made, but the

truth of those statements could not be considered on a motion to dismiss). To permit

such a tactic would allow Outokumpu impermissibly to question the evidentiary

foundation of Carrier’s complaint, thereby depriving Carrier of the presumption of truth

to which it is entitled at this stage of litigation. Indeed, Carrier should be free to draw

facts from the EC decision to provide a “starting point” and then use those facts to

construct a theory that differs from or even contradicts that of the EC. Carrier Br. 3 at

10 (emphasis omitted).6

Furthermore, Carrier offers additional circumstantial allegations that corroborate

its claim that the market-allocation scheme extended to the United States. Although
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 13

Carrier’s complaint provides numerous circumstantial allegations, of particular interest

is its claim that Wieland and KME initially refrained from aggressively competing for

Carrier’s U.S. business until 2003, and then suddenly began doing so at that time. It is

true that the mere fact that competitors do not intrude upon one another’s markets does

not necessarily mean that an illegal market-allocation scheme is taking place. See Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 567–78 (2007). When two companies refrain

from entering a market and then suddenly do so after a cartel dissolves, however, there

are good grounds for suspicion. Defendants question why it is that KME and Wieland

waited until two years after the Cuproclima conspiracy dissolved to enter the United

States if all that was stopping them was a supposed allocation conspiracy. It is certainly

plausible, however, that these two companies would require time to reconfigure their

operations so as to enable themselves to enter a new market. Similarly, 2003 is the year

in which the EC’s industrial-tubes investigation came to a close, and it is plausible for

KME and Wieland to wait until that moment before engaging in what could be viewed

as suspicious activity.

This analysis demonstrates that, contrary to Outokumpu’s argument—and the

district court’s conclusion—Carrier’s complaint does not fall within the rare exception

created by Bell v. Hood, 327 U.S. 678, 682–83 (1946), which permits district courts to

dismiss complaints that are “wholly insubstantial and frivolous.” See also Musson

Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1248 & n.1 (6th Cir. 1996) (stating

that “[w]hen a 12(b)(1) motion attacks the face of a complaint . . . [t]he plaintiff must

show only that the complaint alleges a claim under federal law, and that the complaint

is “substantial,” and defining “substantial” as “non-frivolous” ). The exception on which

Outokumpu and the district court relied is quite narrow and ordinarily reserved for

extremely weak claims. See, e.g., Moore v. Lafayette Life Ins. Co., 458 F.3d 416, 444

(6th Cir. 2006) (explaining that the rule from Bell v. Hood, 327 U.S. 678 (1946), should

apply “only where the plaintiff’s claim has no plausible foundation or is clearly

foreclosed by a prior Supreme Court decision” (internal quotation marks omitted));

Apple v. Glenn, 183 F.3d 477, 478–79 (6th Cir. 1999), cert. denied, 528 U.S. 1198

(2000) (affirming dismissal due to lack of jurisdiction in a case in which the plaintiff
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 14

“sued Senator John Glenn, Chief Justice William Rehnquist, and other top government

officials, claiming that the defendants violated his First Amendment right to petition the

government because they did not answer his many letters or take the action requested in

those letters.”).

The district court concluded that Carrier’s complaint falls within the exception

because it “cut-and-pasted” many sections of the EC decisions. As explained above,

however, the mere fact that the complaint borrows its substance from the EC decision

and then builds on the EC’s findings does not render its allegations any less valid.

Furthermore, even if all of the facts taken from the EC decisions were stripped from the

complaint, Carrier’s complaint still offers additional allegations, such as its claims

regarding KME and Wieland’s sudden entry into the U.S. market. As even the district

court noted, portions of Carrier’s complaint “create[d] a close approximation of [the]

factual predicate” needed to establish its claim. J.A. at 927 (Dist. Ct. Order at 7). Under

such circumstances, Carrier’s complaint comes nowhere near the level of frivolity

required by the “wholly insubstantial and frivolous” exception, and the district court

erred in dismissing the case on that basis.

b. Outokumpu’s Factual Attack

Outokumpu further argues that, even if Carrier’s complaint facially appears to

plead a U.S.-focused conspiracy, to the extent that the district court made factual

findings in applying the “wholly insubstantial” standard and making its determination

that the allegations lacked the requisite “U.S. nexus,” we should review that analysis

using the standards for a factual attack. Outokumpu Br. 2 at 55 n.17.

We first note that it is unclear whether the district court here made any findings

of fact. Indeed, the court never explicitly stated that it was doing so. The court did,

however, assess the complaint’s “credibility,” J.A. at 927 (Dist. Ct. Op. at 7), and

referenced its own power to “mak[e] reasonable inquiry into the facts,” id. at 929 (Op.

at 9). Therefore, we assume that the district court found, as a matter of fact, that the

conspiracy alleged in Carrier’s complaint did not target U.S. markets.
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 15

“[A] district court engages in a factual inquiry regarding the complaint’s

allegations only when the facts necessary to sustain jurisdiction do not implicate the

merits of the plaintiff’s claim.” Gentek, 491 F.3d at 330. In other words, the district

court is prohibited from making factual findings with respect to a jurisdictional issue

when such a finding would adversely affect the merits of the plaintiff’s case. Id. at 331.

When “an attack on subject-matter jurisdiction also implicates an element of the cause

of action, then the district court should find that jurisdiction exists and deal with the

objection as a direct attack on the merits of the plaintiff’s claim.” Id. at 330 (internal

quotation marks omitted).

In the context of Sherman Act claims against foreign defendants, the extent of

U.S.-market impact affects more than a court’s jurisdiction; it also speaks to whether

there is “sufficient injury or anticompetitive effect to establish liability.” Restatement

(Third) of Foreign Relations Law § 415, reporter’s note 3 (1987). Thus, as Areeda and

Hovenkamp have observed, the “‘jurisdictional’ and ‘substantive’ inquiries are not

wholly independent.” IB Areeda & Hovenkamp ¶ 273, at 326. That being the case, to

the extent that the district court did render a factual finding, any such finding was

improper. Cf. Hartford, 509 U.S. at 796 n.21 (explaining that the court was “bound to

credit” allegations that foreign defendants conspired to coerce American insurers, the

very conduct upon which the court found the requisite “substantial effect” to be based).

In conclusion, we hold that the district court did not lack subject-matter

jurisdiction over Carrier’s complaint. We therefore proceed to an evaluation of the

merits of Outokumpu’s Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for

failure to state a claim.

B. The Outokumpu Defendants’ Rule 12(b)(6) Motion

The Defendants next argue that Carrier’s complaint fails to state a claim. We

review de novo a district court’s decision to grant a Rule 12(b)(6) motion. Watson

Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc., 648 F.3d 452, 456 (6th Cir.

2011). “We ‘construe the complaint in the light most favorable to the plaintiff, accept

its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Id.
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 16

at 456 (quoting In re Travel Agent Comm’n Antitrust Litig., 583 F.3d 896, 902 (6th Cir.

2009), cert. denied, 131 S. Ct. 896 (2011)).

To survive a motion to dismiss under Rule 12(b)(6), a complaint need only

contain “a short and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). In Bell Atlantic Corp. v. Twombly, however, the

Supreme Court emphasized that it is not enough merely to plead a set of facts “consistent

with” a claim to relief; there must also be enough “factual enhancement” to “nudge [the]

claim[] across the line from conceivable to plausible.” 550 U.S. at 557, 570. To conduct

this analysis, a court should first identify factual allegations that are entitled to a

presumption of truth—that is, those allegations that are more than just legal conclusions.

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950–51 (2009). Then the court should

“consider the factual allegations in [the] complaint to determine if they plausibly suggest

an entitlement to relief.” Id. at 1951.

Carrier’s claim falls under § 1 of the Sherman Act, which prohibits conspiracies

“in restraint of trade or commerce among the several States, or with foreign nations.”

15 U.S.C. § 1. Here, the parties focus on the existence of a conspiracy impacting U.S.

markets. Carrier’s complaint attempts to establish a Sherman Act violation by alleging

“an explicit agreement to restrain trade,” and therefore must “‘plausibly suggest[],’

rather than be ‘merely consistent with,’ an agreement to restrain trade in violation of the

Sherman Act.” Watson, 648 F.3d at 457 (quoting In re Travel Agent Comm’n Antitrust

Litig., 583 F.3d at 908). To survive a motion to dismiss, these allegations must be

specific enough to establish the relevant “who, what, where, when, how or why.” Total

Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 437

(6th Cir. 2008) (internal quotation marks omitted). Furthermore, they must “specify how

[each] defendant [was] involved in the alleged conspiracy.” In re Travel Agent Comm’n

Antitrust Litig., 583 F.3d at 905.

Outokumpu first reiterates its previous argument that the alleged conspiracy had

no effect on the United States. That argument, however, fails for the same reasons as did

Outokumpu’s challenge to this court’s subject-matter jurisdiction under the Sherman
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 17

Act’s effects test. Furthermore, as was also detailed above, the allegations extend well

beyond the conclusory “if it happened there, it could have happened here” argument that

has been rejected in other courts. In re Elevator Antitrust Litig., 502 F.3d 47, 52 (2d Cir.

2007).

Outokumpu’s U.S. entities—Outokumpu U.S.A. and Outokumpu Copper

Franklin—then argue that there are insufficient allegations as to their specific

involvement in the conspiracy. The two U.S. entities’ argument stems from Carrier’s

frequent use of blanket references to the “Outokumpu defendants,” without always

specifying the role that each corporate entity played in the conspiracy. Outokumpu

U.S.A. and Outokumpu Copper Franklin further note that neither EC decision mentions

their involvement. In addition, the complaint does not specifically identify either

company as a member of the Cuproclima conspiracy.

Even in the absence of direct allegations that Outokumpu’s U.S. entities were coconspirators at Cuproclima, however, the court may look beyond those entities’

corporate forms if the complaint presents facts to support a determination that the

subsidiaries were alter egos of the parent corporation. Cf. Opdyke Inv. Co. v. City of

Detroit, 883 F.2d 1265, 1272 (6th Cir. 1989) (“It is true that the parent and subsidiary

companies . . . were separately incorporated, but they must be treated as a single entity

under the antitrust laws.” (citing Copperweld Corp. v. Independence Tube Corp, 467

U.S. 752 (1984))); Bhd. of Locomotive Engineers v. Interstate Commerce Comm’n, 909

F.2d 909, 914 (6th Cir. 1990) (indicating that a wholly controlled subsidiary may be an

“alter ego” of the parent company depending on the facts of a particular case). Thus, the

question becomes whether OTO and OCP’s control over the U.S. entities was

sufficiently extensive to permit imputation of the conspiracy to the U.S. entities.

For purposes of the motion to dismiss, Carrier’s allegations are sufficient to

support such a determination. The complaint identifies that the U.S. entities are

responsible for selling the overpriced tubing directly to Carrier, stating, for instance, that

“[d]uring the Relevant Period, [Outokumpu Copper Franklin] sold substantial quantities

of ACR Copper Tubing to Carrier in the United States.” J.A. at 0028 (Am. Compl.
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 18

7

Outokumpu again reiterates its argument that Carrier’s allegations are inconsistent with the

findings in the EC decision. Specifically, Outokumpu points to statements limiting the Cuproclima cartel

to European customers. As discussed above, this is unsurprising given that the scope of the EC’s decision

was limited to Europe and therefore did not implicate Outokumpu’s U.S. entities. Thus, as stated in

Section II.A.1, our review is not constrained by the EC’s decision to refrain from considering the existence

of agreements beyond the European markets.

¶ 24). The complaint also identifies Outokumpu U.S.A. as “engaged in the production

or sale of ACR Copper Tubing in the United States, Europe, and elsewhere, directly

and/or through its affiliates and/or wholly-owned subsidiaries during the Relevant

Period.” Id. ¶ 23. More importantly, however, Carrier has alleged that the various

Outokumpu entities were operated and deliberately portrayed to the outside world as a

“single global enterprise” in which key executives overlapped between the U.S. and

European entities and vital management personnel rotated through positions on both

sides of the Atlantic. Id. ¶¶ 27–30. Under such circumstances, requiring Carrier to

delineate in the complaint the role each subsidiary played in the conspiracy is

unnecessary,

7

 and Carrier’s allegations against Outokumpu’s U.S. entities are sufficient

to survive the motion to dismiss.

C. Statute of Limitations and Personal Jurisdiction

Turning to the cross-appeal, Outokumpu next argues that Carrier’s complaint is

time-barred and that the district court lacked personal jurisdiction over OTO and OCP.

Because it decided the case on other grounds, the district court did not address either of

these issues in its dismissal order.

As an initial matter, “[i]t is the general rule . . . that a federal appellate court does

not consider an issue not passed upon below.” Katt v. Dykhouse, 983 F.2d 690, 695 (6th

Cir. 1992) (alteration in original) (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)).

We make an exception, however, for cases such as this one in which “the issue[s are]

presented with sufficient clarity and completeness and [their] resolution will materially

advance the progress of . . . already protracted litigation.” Id. (internal quotation marks

omitted). This litigation has been ongoing since 2006, and both Outokumpu and Carrier

have fully briefed the statute-of-limitations and personal-jurisdiction issues. We

therefore think it appropriate to address Outokumpu’s arguments.
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 19

1. Statute of Limitations

A Sherman Act claim must be brought “within four years after the cause of action

accrued.” 15 U.S.C. § 15b. The Amended Complaint indicates that the conspiracy

ended in 2001. Carrier did not file its first complaint, however, until March 2006.

Nonetheless, Carrier argues that the statute of limitations should be tolled under the

doctrine of fraudulent concealment.

“Three elements must be pleaded in order to establish fraudulent concealment:

(1) wrongful concealment of their actions by the defendants; (2) failure of the plaintiff

to discover the operative facts that are the basis of his cause of action within the

limitations period; and (3) plaintiff’s due diligence until discovery of the facts.” Dayco

Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975). A plaintiff

must plead the factual allegations underlying a claim of fraudulent concealment with

particularity. Friedman v. Estate of Presser, 929 F.2d 1151, 1160 (6th Cir. 1991). With

regard to the “wrongful concealment” element the plaintiff must point to “affirmative

acts of concealment.” Hamilton Cnty. Bd. of Comm’rs v. Nat’l Football League, 491

F.3d 310, 319 (6th Cir. 2007). “[M]ere silence or unwillingness to divulge wrongful

activities is not sufficient.” Browning v. Levy, 283 F.3d 761, 770 (6th Cir. 2002).

Instead, there must be some “‘trick or contrivance intended to exclude suspicion and

prevent inquiry.’” Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445,

1467 (6th Cir.), cert. denied, 488 U.S. 880 (1988) (quoting Wood v. Carpenter, 101 U.S.

(11 Otto) 135, 143 (1879)). Furthermore, in evaluating the due-diligence element, the

court should evaluate such acts of active concealment as a factor in determining whether

the plaintiff’s investigation was reasonable under the circumstances. Campbell v.

Upjohn Co., 676 F.2d 1122, 1128 (6th Cir. 1982). Thus “[a]ctions such as would

deceive a reasonably diligent plaintiff will toll the statute; but those plaintiffs who delay

unreasonably in investigating circumstances that should put them on notice will be

foreclosed from filing, once the statute has run.” Id.
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 20

8

Although Carrier does not always specify whether Outokumpu engaged in the relevant

concealment, this is irrelevant because “[f]raudulent concealment . . . may be established through the acts

of co-conspirators.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 538 (6th Cir. 2008), cert. denied, 129 S. Ct. 1673 (2009).

Here, Carrier’s complaint points to numerous instances in which the

conspirators8 actively tried to hide their conduct. Some of these allegations lack any

specificity, and therefore fall short of meeting the standard required to support a claim

of fraudulent concealment. For instance, the complaint alleges that in 2001, after the EC

began investigating Outokumpu, Outokumpu denied any wrongdoing. As stated above,

however, an unwillingness to provide information is not an “affirmative act.”

Furthermore, the complaint alleges that the Defendants “utiliz[ed] covert meetings” and

“[gave] false and pretextual reasons for the pricing of ACR Copper Tubing sold . . .

during the Relevant Period and [described] such pricing falsely as being the result of

competitive factors rather than collusion.” J.A at 0051–52 (Am. Compl. ¶ 104(a), (c)).

This also lacks the requisite particularity, as it fails to specify “the time, place, and

content of the alleged” fraudulent acts. U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc.,

501 F.3d 493, 505 (6th Cir. 2007) (internal quotation marks omitted).

Other portions of the complaint, however, provide specific details regarding the

nature of the alleged cover-up. For example, the complaint quotes the EC’s findings that

the conspirators “‘established security rules to prevent a paper trail . . . and used a

coding-system to hide the identity of the producers in their documents and

spreadsheets.’” J.A. at 0052 (Am. Compl. ¶ 105). In contrast to those discussed above,

these allegations—especially when coupled with the details referenced in the cited

portion of the EC decision and associated cross-references—are sufficiently particular

to meet the pleading standard for fraudulent concealment. See J.A. at 0330 (EC ACR

Dec. ¶ 218); In re Elec. Carbon Prods. Antitrust Litig., 333 F. Supp. 2d 303, 316 (D.N.J.

2004) (concluding that a plaintiff “injected precision” into its fraudulent-concealment

claim “by pleading the findings of the United States Department of Justice and the

European Commission” (internal quotation marks omitted)). Furthermore, such conduct

is sufficiently affirmative for purposes of satisfying the “wrongful concealment” element

because the alleged actions involved taking active steps to hide evidence, as opposed to
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 21

simply meeting in secret. See Bridgeport Music, Inc. v. Diamond Time, Ltd., 371 F.3d

883, 891 (6th Cir. 2004) (explaining that “hiding evidence” can constitute affirmative

concealment). Finally, Carrier alleges that because of the co-conspirators’ misstatements

and attempts at suppressing evidence of illegal conduct, it had no knowledge of the

Defendants’ conspiracy until the release of the EC decision on December 16, 2003.

Taken as true, these actions would have both concealed from Carrier the very “means

of discovering [its] cause of action,” Campbell, 676 F.2d at 1127, and prevented Carrier

from discovering the basis for its antitrust claim within the limitations period. Carrier

has thus adequately pleaded the first two prongs of a fraudulent-concealment claim.

As for the third prong of Dayco—Carrier’s due diligence—Carrier’s complaint

acknowledges that it was aware that the EC was investigating Outokumpu for antitrust

violations as early as 2001. This would appear to be enough to place Carrier on inquiry

notice, which in turn would require Carrier diligently to investigate its possible claim.

Dayco, 523 F.2d at 394 (holding that government investigation into alleged antitrust

violations prompted duty to investigate). Despite Carrier’s failure to uncover the cartel,

however, Carrier’s complaint sufficiently alleges “reasonable diligence” in the

investigation it undertook upon learning of the possible conspiracy. Indeed, this is not

a instance in which the plaintiff presented a “mere allegation of due diligence without

asserting what steps were taken.” Id. Rather, Carrier alleges that prior to December

2003, an employee with the Global Purchasing Department named Fred Benedict

contacted several copper tubing suppliers to ask them about the alleged conspiracy, but

was unable to procure any information. Carrier’s examination of the defendants’ public

statements and filings also turned up no information relating to a possible cartel or other

anticompetitive conduct. Later, after acquiring additional information from the EC

decision, which Carrier asserts “provided the first means for beginning an analysis of

cartel behavior and its effect on Carrier,” Carrier alleges that it retained both outside

counsel and an economic consultant to conduct a more thorough investigation. J.A. at

0055 (Am. Compl. ¶ 111). We are not prepared to conclude that such efforts were

insufficient to satisfy Dayco’s “due diligence” requirement at such an early stage of

litigation and without the benefit of discovery. Cf. Jones v. TransOhio Sav. Ass’n, 747
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 22

9

Outokumpu argues that the panel’s decision in Gumbus v. United Food & Commercial Workers

Int’l Union, Nos. 93-5113, 93-5235, 1995 WL 5935 (6th Cir. Jan. 6, 1995), cert. denied, 516 U.S. 811

(1995), is to the contrary. We are not bound by Gumbus, however, as it is an unpublished decision.

Moreover, our previous cases—including Campbell v. Upjohn Co., 676 F.2d 1122 (6th Cir. 1982), which

Gumbus cites in support of the proposition that inquiry to company officials is insufficient to constitute

due diligence—have not suggested that reliance on company assurances as a matter of law always falls

short of demonstrating the requisite due diligence. Campbell instead utilizes a more fact-based approach

to the question whether reliance on oral assurances was a reasonable investigation under the circumstances.

Although we determined that such reliance was not reasonable in that case given that the plaintiff already

knew that he had substantial cause to mistrust the words and intentions of the officers on whose assurances

he claimed to rely, id. at 1128, that conclusion does not compel recognition of a per se rule barring the use

of direct inquiries to a company as a reasonable means of investigation.

F.2d 1037, 1043 (6th Cir. 1984) (noting the panel’s reluctance to dismiss fraudulentconcealment allegations prior to discovery); Duncan v. Leeds, 742 F.2d 989, 993 (6th

Cir. 1984) (addressing the need to construe allegations of fraudulent concealment

liberally and in the plaintiff’s favor at such an early stage in the litigation). Although we

may dismiss a claim of fraudulent concealment when it is obvious from the complaint

that the plaintiff conducted absolutely no investigation, see, e.g., Ruth v. Unifund CCR

Partners, 604 F.3d 908, 911–14 (6th Cir. 2010), when there is some question as to the

depth and scope of that investigation, a plaintiff should be allowed to proceed forward.9

We therefore conclude that, taking the allegations in Carrier’s favor as we must at this

stage in the litigation, Carrier has adequately pleaded its fraudulent-concealment claim,

and its cause of action should not be dismissed as time-barred.

2. Personal Jurisdiction

Finally, we address OTO and OCP’s argument concerning personal jurisdiction.

“To comply with due process, a court’s exercise of its power over an out-of-state

defendant must not offend traditional notions of fair play and substantial justice.” Indah

v. U.S. Sec. & Exchange Comm’n, 661 F.3d 914, 920 (6th Cir. 2011) (quoting Int’l Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945)) (internal quotation marks omitted).

Personal jurisdiction comes in two varieties: specific jurisdiction, which “‘is confined

to adjudication of issues deriving from, or connected with, the very controversy that

establishes jurisdiction,’” and “‘general, all-purpose jurisdiction.’” Id. (quoting

Goodyear Dunlop Tires Operations, S.A. v. Brown, ---U.S.----, 131 S. Ct. 2846, 2851

(2011)).
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 23

“The plaintiff bears the burden of establishing that [personal] jurisdiction exists.”

Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991). “[I]n the face of a

properly supported motion for dismissal, the plaintiff may not stand on his pleading but

must, by affidavit or otherwise, set forth specific facts showing that the court has

jurisdiction.” Id. A district court, in its discretion “may decide the motion upon the

affidavits alone; it may permit discovery in aid of deciding the motion; or it may conduct

an evidentiary hearing to resolve any apparent factual questions.” Id. Given that the

district court here never addressed personal jurisdiction, only the first option is available

on appeal. Thus, Carrier’s burden is “relatively slight,” Third Nat’l Bank in Nashville

v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir. 1989) (internal quotation marks

omitted), cert. denied, 493 U.S. 1058 (1990), and we must “construe the facts in a light

most favorable” to Carrier, Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002) (internal

quotation marks omitted). In addition, because weighing any controverted facts is

inappropriate at this stage, dismissal is proper only if Carrier’s alleged facts “collectively

fail[] to state a prima facie case for jurisdiction.” Theunissen, 935 F.2d at 1459.

For Sherman Act claims, 15 U.S.C. § 22 authorizes service of process over an

antitrust defendant “wherever it may be found.” When Congress has enacted such

nationwide service of process statutes, personal jurisdiction exists whenever the

defendant has “sufficient minimum contacts with the United States” to satisfy the due

process requirements under the Fifth Amendment. Med. Mut. of Ohio v. deSoto, 245

F.3d 561, 566–67 (6th Cir. 2001) (emphasis added); cf. Chrysler Corp. v. Fedders Corp.,

643 F.2d 1229, 1237–39 (6th Cir. 1981) (indicating without expressly deciding that 15

U.S.C. § 22 permits nationwide process). This inquiry parallels the more traditional

personal-jurisdiction analysis under which a defendant must have “‘minimum contacts’”

with the forum state pursuant to the state’s long-arm statute. See Med. Mut. of Ohio, 245

F.3d at 566–67.

Because Carrier appears to assert only specific jurisdiction, our minimumcontacts analysis is likewise limited to that issue. Thus, to establish personal jurisdiction

in this case, Carrier must adequately show the following elements in accordance with the
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 24

well-established test set forth in Southern Machine Co. v. Mohasco Industries, Inc., 401

F.2d 374, 381 (6th Cir. 1968):

First, the defendant must purposefully avail himself of the privilege of

acting in the forum state or causing a consequence in the forum state.

Second, the cause of action must arise from the defendant’s activities

there. Finally, the acts of the defendant or consequences caused by the

defendant must have a substantial enough connection with the forum

state to make the exercise of jurisdiction over the defendant reasonable.

Applying that test here but analyzing contacts with the United States, we conclude that

the district court had specific jurisdiction over the Finnish Outokumpu entities based on

their ties to the United States.

Looking first to purposeful availment, we must determine whether OCP and OTO

have “engaged in some overt actions connecting [them] with the forum state.” Fortis

Corporate Ins. v. Viken Ship Mgmt., 450 F.3d 214, 218 (6th Cir. 2006) (internal

quotation marks omitted). With respect to OCP, Carrier argues that the company had

sufficient contacts with the United States both independently and through its

subsidiaries. In support of OCP’s independent contacts, Carrier points to exhibits

indicating that certain OCP officers lived in the United States and that OCP also sent

personnel from Finland to work on the Carrier account on its behalf. Carrier also points

to an affidavit indicating at least one instance in which OCP employees traveled to the

United States to conduct business with Carrier and to reports indicating that OCP

imported a certain amount of copper tubing into the United States. Similar facts support

Carrier’s claim that, because of the close interrelationship between OCP and its U.S.

subsidiaries, the contacts of the U.S. subsidiaries can be attributed to OCP. Specifically,

Carrier asserts that in addition to residing in the United States, many high-ranking OCP

executives held day-to-day management responsibilities within the U.S. subsidiaries, and

that the subsidiaries’ boards of directors were dominated by OCP personnel. Carrier also

points to evidence suggesting that OCP used its subsidiaries as agents responsible for

forwarding copper tubing imports to customers like Carrier in the United States.
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 25

In contrast to its argument regarding OCP, Carrier’s argument for personal

jurisdiction over OTO rests entirely on the assertion that OCP’s jurisdictional contacts

can be attributed to OTO. In its complaint, Carrier alleged that OTO had “effective

control over the commercial policy and business decisions of its subsidiaries, and did

business through its subsidiaries.” J.A. at 0028 (Am. Compl. ¶ 25). This was possible

because of OCP’s status as a wholly owned subsidiary of OTO over which OTO publicly

claimed to retain full operational control. R. 61-3 (Resp. in Opp’n to Mot. to Dismiss

Am. Compl., Ex. 10 at 64). Such control is further supported by Carrier’s allegation that

OTO executives continue to dominate OCP’s board of directors and by the EC’s finding

that OCP lacked any “real business autonomy.” Id. ¶ 27.

This circuit has adopted the alter-ego theory of personal jurisdiction, which

“provides that a non-resident parent corporation is amenable to suit in the forum state

if the parent company exerts so much control over the subsidiary that the two do not

exist as separate entities but are one and the same for purposes of jurisdiction.” Estate

of Thomson v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 362 (6th Cir. 2008).

Taking Carrier’s pleadings and supporting affidavits in its favor, we conclude that the

above allegations facially support the application of this theory with respect to both OCP

and OTO. Cf. Third Nat’l Bank, 882 F.2d at 1090 (finding personal jurisdiction over a

parent company that, among other things, was a 100% owner of the subsidiary and had

directors serving on the subsidiary’s board).

Furthermore, to the extent that the allegations relate specifically to Outokumpu’s

anti-competitive conduct toward Carrier, the contacts are “enhanced” by the Caldereffects doctrine. Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544,

552–53 (6th Cir. 2007). In Calder v. Jones, 465 U.S. 783 (1984), the Supreme Court

held that a plaintiff can establish personal jurisdiction when it alleges that the defendant

“expressly aimed” tortious conduct at the forum in question and the “brunt of the harm”

is felt there. Calder, 465 U.S. at 789; see also Neal v. Janssen, 270 F.3d 328, 331 (6th

Cir. 2001) (“[E]ven a single act by [a] defendant directed toward [the relevant forum]
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 26

10In the related American Copper case, the district court also determined that it had personal

jurisdiction over OTO and OCP. No. 04-2771-DV (W.D. Tenn. June 1, 2006) (unpublished opinion).

that gives rise to a cause of action can support a finding of minimum contacts sufficient

to exercise personal jurisdiction without offending due process.”).

Here, the conspiracy in which OCP and OTO allegedly participated had an

explicit geographical focus. According to the complaint, one of the main pillars of the

conspiracy was allocating Carrier’s U.S. business to the Outokumpu defendants, thereby

forcing Carrier to pay higher prices in the United States. Such conduct serves as a

paradigmatic example of “expressly aiming” tortious conduct. Carrier has thus

sufficiently alleged purposeful availment under the Southern Machine test. As for the

second part of the Southern Machine test, we conclude that Carrier’s cause of action

“arises from” its U.S. contacts. To satisfy this factor, we “require[] only that the cause

of action, of whatever type, have a substantial connection with the defendant’s [inforum] activities.” Bird, 289 F.3d at 875. Insofar as the complaint is premised on the

alleged harm that Outokumpu “expressly aimed” at Carrier, that lenient standard is easily

met. See Air Prods., 503 F.3d at 552.

Finally, although we recognize the need to use particular caution when extending

personal jurisdiction to foreign defendants, see Fortis, 450 F.3d at 223, because OTC

and OCP have not argued that exercising jurisdiction over them would be

“unreasonable” under the third prong of the Southern Machine test, they have not

rebutted the “inference of reasonableness” that arises when the plaintiff sufficiently

demonstrates the first two prongs of that test. Air Prods., 503 F.3d at 554 (internal

quotation marks omitted). We therefore conclude that the district court had personal

jurisdiction over OTO and OCP.10 We emphasize however, that our holding is based

only on a facial analysis of Carrier’s pleadings and exhibits. OTO and OCP are free to

seek an evidentiary hearing or to raise this issue again at the summary-judgment stage.

See Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 893 (6th Cir. 2002).
Nos. 07-6052/6114 Carrier Corp. et al. v. Oyj et al. Page 27

III. CONCLUSION

For the reasons stated above, we REVERSE the district court’s judgment with

respect to Outokumpu Oyj, Outokumpu Copper Products Oy, Outokumpu Copper

(U.S.A.), Inc., and Outokumpu Copper Franklin, Inc. and REMAND for further

proceedings.