FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: DYNAMIC RANDOM ACCESS 

MEMORY (DRAM) ANTITRUST

LITIGATION.

CENTERPRISE INTERNATIONAL, LTD,

Plaintiff-Appellant,

v.

MICRON TECHNOLOGY, INC.; MICRON

SEMICONDUCTOR PRODUCTS INC.; No. 06-15636

CRUCIAL TECHNOLOGY, INC.; D.C. Nos.

SAMSUNG ELECTRONICS CO. LTD.; CV-02-01486-PJH

SAMSUNG SEMICONDUCTOR, INC.; CV-05-03026-PJH

MOSEL-VITELIC, INC.; MOSEL-  ORDER VITELIC CORPORATION (USA);

AMENDING INFINEON TECHNOLOGIES, AG;

OPINION AND INFINEON TECHNOLOGIES NORTH

AMENDED AMERICA CORP.; HYNIX

OPINION SEMICONDUCTOR AMERICA, INC.;

HYNIX SEMICONDUCTOR, INC.;

ELPIDA MEMORY, INC.; ELPIDA

MEMORY, (USA) INC.; NEC

ELECTRONICS AMERICA, INC.; NANYA

TECHNOLOGY CORP.; NANYA

TECHNOLOGY CORP. USA; WINBOND

ELECTRONICS CORP.; WINBOND

ELECTRONICS CORP. AMERICA,

Defendants-Appellees. 

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, District Judge, Presiding

14341
Argued and Submitted

March 13, 2008—San Francisco, California

Filed August 14, 2008

Amended October 9, 2008

Before: John T. Noonan, Jr., M. Margaret McKeown and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Concurrence by Judge Noonan

14342 IN RE DYNAMIC RANDOM ACCESS MEMORY
COUNSEL

Henry H. Rossbacher, The Rossbacher Firm; Natalie Finkelman Bennett and James C. Shah (argued), Shepherd, Finkelman, Miller & Shah, LLC, for plaintiff-appellant Centerprise

International, Ltd. 

IN RE DYNAMIC RANDOM ACCESS MEMORY 14345
Michael D. Blechman (argued), Aton Arbisser, Julian Brew

and Tanja Shipman, Kaye Scholer LLP for defendantsappellees Infineon Technologies, AG and Infineon Technologies NA Corp.; Joel Sanders, Gibson Dunn & Crutcher LLP,

for defendants-appellees Crucial Technology Inc., Micron

Technology, Inc., Micron Semiconductor Products, Inc.; William Goodman, Topel & Goodman LLC for defendantsappellees Mosel-Vitelic Inc., and Mosel-Vitelic Corp.; Paul

R. Griffin, Thelen Reid & Priest LLP, for defendant-appellee

NEC Electronics America, Inc.; Steven H. Morrissett, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, for

defendants-appellees Winbond Electronics Corp. and Winbond Electronics Corp. America; Kenneth O’Rourke,

O’Melveny & Myers LLP, for defendants-appellees Hynix

Semiconductor Inc. and Hynix Semiconductor America, Inc.;

Robert E. Freitas, Orrick, Herrington & Sutcliffe LLP, for

defendants-appellees Nanya Technology Corp. and Nanya

Technology Corp. USA; Harrison J. Frahn, Simpson,

Thatcher & Bartlett LLP for defendants-appellees Elpida

Memory, Inc. and Elpida Memory (USA), Inc.; James L.

McGinnis, Sheppard Mullin Richter & Hampton LLP, for

defendants-appellees Samsung Electronics Co. Ltd. and Samsung Semiconductor Inc. 

ORDER

The opinion filed at 538 F.3d 1107, 1110 (9th Cir. Aug. 14,

2008) is amended as follows: 

At pg. 1110, insert new footnote 3 after “B. Subject Matter Jurisdiction”

3

: 

3The district court granted defendants’ motion to

dismiss, which was premised solely on jurisdictional

grounds. It is unclear, however, whether the FTAIA

is more appropriately viewed as withdrawing juris14346 IN RE DYNAMIC RANDOM ACCESS MEMORY
diction from the federal courts when a plaintiff fails

to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to

prove proximate cause as an element of the claim.

Compare Empagran S.A. v. F. Hoffman-LaRoche,

Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005)

(affirming dismissal under Rule 12(b)(1) for lack of

subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50 (2d Cir. 2007)

(affirming dismissal on 12(b)(6) grounds). The

Supreme Court’s decision in Empagran I provides

little guidance because, although the district court

had dismissed under Rule 12(b)(1), the Court did not

explicitly address whether the issue was properly

viewed as one of federal question subject matter

jurisdiction or of a failure to state a claim under federal law. We decline to resolve the question, because

it was not argued by the parties and in this case the

result and analysis are the same. Accordingly, we

assume without deciding that the district court correctly dismissed under Rule 12(b)(1). 

No petitions for panel rehearing or rehearing en banc will be

considered.

OPINION

FISHER, Circuit Judge: 

Plaintiff-appellant Centerprise International, Ltd.

(“Centerprise”), a British computer manufacturer that purchased dynamic random access memory (“DRAM”) outside

of the United States, appeals the district court’s dismissal of

its complaint for lack of subject matter jurisdiction under the

Foreign Trade Antitrust Improvement Act of 1982

(“FTAIA”), 15 U.S.C. § 6a, amending the Sherman Act, 15

IN RE DYNAMIC RANDOM ACCESS MEMORY 14347
U.S.C. § 1-7.1

 Defendants-appellees are U.S. and foreign

manufacturers and sellers of DRAM, a type of high-density

memory used in personal computers and other electronic

devices. We affirm. 

I. Background 

Centerprise is a British corporation that uses DRAM in the

manufacture of its computers. DRAM is a common type of

memory chip that is sold around the world. According to Centerprise, DRAM is “a readily transportable commodity product with multiple firms offering essentially identical parts.”

Centerprise purchased DRAM outside of the United States

from the defendants, various memory companies. 

Centerprise brought this antitrust class action in May 2005

on behalf of itself and all others similarly situated, pursuant

to §§ 4(a), 12 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 22

and 26, seeking injunctive relief and damages, premised on

defendants’ alleged violations of federal antitrust laws,

including § 1 of the Sherman Act.2 Centerprise alleged that

the defendants engaged in a global conspiracy to fix DRAM

prices, raising the price of DRAM to customers in both the

United States and foreign countries. Specifically, Centerprise

asserted that the domestic effect of the defendants’ anticompetitive conduct — higher DRAM prices in the United States

— gave rise to its foreign injury of having to pay higher

DRAM prices abroad because the defendants could not have

raised prices worldwide and maintained their global pricefixing arrangement without fixing the DRAM prices in the

United States. 

1Hereinafter all statutory provisions cited, unless otherwise indicated,

refer to Title 15 of the United States Code. 

2Centerprise defined the class as “[a]ll individuals and entities located

outside of the United States who, during the period from approximately

July 1, 1999 through at least June 20, 2002 (the ‘Class Period’), purchased

DRAM directly from defendants, any subsidiaries or affiliates thereof.” 

14348 IN RE DYNAMIC RANDOM ACCESS MEMORY
The district court dismissed the complaint with prejudice

for lack of subject matter jurisdiction under the FTAIA. Relying on the Supreme Court’s decision in F. Hoffmann-La

Roche Ltd. v. Empagran S.A., 542 U.S. 155 (2004)

(“Empagran I”), and the D.C. Circuit’s decision in that case

on remand, the district court held that Centerprise had not met

the jurisdictional prerequisites under the FTAIA because it

had not sufficiently alleged that its foreign injury was directly

linked to the domestic effect of higher U.S. prices for DRAM.

The district court also denied Centerprise leave to amend its

complaint as futile because its proposed amendments did not

substantively change its theory of recovery. Centerprise

timely appealed. 

II. Discussion

A. Legal Standards

We review de novo the district court’s dismissal for lack of

subject matter jurisdiction. See United States v. LSL Biotechnologies, 379 F.3d 672, 677 (9th Cir. 2004). The party asserting jurisdiction bears the burden of establishing subject matter

jurisdiction on a motion to dismiss for lack of subject matter

jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994); see also Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225

(9th Cir. 1989). Dismissal for lack of subject matter jurisdiction is appropriate if the complaint, considered in its entirety,

on its face fails to allege facts sufficient to establish subject

matter jurisdiction. See Love v. United States, 915 F.2d 1242,

1245 (9th Cir. 1990). 

B. Subject Matter Jurisdiction3

3The district court granted defendants’ motion to dismiss, which was

premised solely on jurisdictional grounds. It is unclear, however, whether

the FTAIA is more appropriately viewed as withdrawing jurisdiction from

the federal courts when a plaintiff fails to establish proximate cause or as

IN RE DYNAMIC RANDOM ACCESS MEMORY 14349
[1] In 1982, Congress responded to concerns regarding the

scope of the broad jurisdictional language in the Sherman Act

by enacting the FTAIA.4See Phillip E. Areeda & Herbert

Hovenkamp, Antitrust Law ¶ 272i, pp. 286-87 (3d ed. 2006)

(hereinafter “Areeda & Hovenkamp”). The FTAIA amends

the Sherman Act and “excludes from [its] reach much anticompetitive conduct that causes only foreign injury.” Empagran I, 542 U.S. at 158. It does this by establishing a general

rule that the Sherman Act “shall not apply to conduct involving trade or commerce . . . with foreign nations.” § 6a. It then

provides an exception to this general rule, making the Sherman Act applicable if foreign conduct “(1) has a ‘direct, substantial, and reasonably foreseeable effect’ on domestic

commerce, and (2) ‘such effect gives rise to a [Sherman Act]

claim.’ ” Empagran I, 542 U.S. at 159 (quoting § 6a) (alteration in Empagran I).5

 This exception is known as the “dosimply establishing a limited cause of action requiring plaintiffs to prove

proximate cause as an element of the claim. Compare Empagran S.A. v.

F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir.

2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter

jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50

(2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme

Court’s decision in Empagran I provides little guidance because, although

the district court had dismissed under Rule 12(b)(1), the Court did not

explicitly address whether the issue was properly viewed as one of federal

question subject matter jurisdiction or of a failure to state a claim under

federal law. We decline to resolve the question, because it was not argued

by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1). 

4Section 1 of the Sherman Act prohibits “[e]very contract, combination

in the form of trust or otherwise, or conspiracy, in restraint of trade or

commerce among the several States, or with foreign nations . . .” 15

U.S.C. § 1. 

5The FTAIA states: 

Sections 1 to 7 of [the Sherman Act] shall not apply to conduct

involving trade or commerce (other than import trade or import

commerce) with foreign nations unless — 

14350 IN RE DYNAMIC RANDOM ACCESS MEMORY
mestic injury exception” of the FTAIA. The Supreme Court

has described the FTAIA’s language as: 

initially lay[ing] down a general rule placing all

(nonimport) activity involving foreign commerce

outside the Sherman Act’s reach. It then brings such

conduct back within the Sherman Act’s reach provided that the conduct both (1) sufficiently affects

American commerce, i.e., it has a “direct, substantial, and reasonably foreseeable effect” on American

domestic, import or (certain) export commerce, and

(2) has an effect of a kind that antitrust law considers

harmful, i.e., the “effect” must “giv[e] rise to a

[Sherman Act] claim.” 

Id. at 162. 

[2] The FTAIA thus clarifies that U.S. antitrust laws concern the protection of “American consumers and American

exporters, not foreign consumers or producers.” Areeda &

Hovenkamp at ¶ 272i, pp. 287. For the Sherman Act to apply,

the effect on U.S. commerce or American interests engaged

in foreign commerce must be direct, substantial and reasonably foreseeable — not minor impacts — and it must “giv[e]

rise” to the antitrust claim. See id.

(1) such conduct has a direct, substantial, and reasonably foreseeable effect — 

(A) on trade or commerce which is not trade or commerce

with foreign nations, or on import trade or import commerce

with foreign nations; or 

(B) on export trade or export commerce with foreign nations,

of a person engaged in such trade or commerce in the United

States; and 

(2) such effect gives rise to a claim under the provisions of sections 1 to 7 of this title, other than this section. § 6a. 

IN RE DYNAMIC RANDOM ACCESS MEMORY 14351
[3] In dismissing Centerprise’s action, the district court

concluded that Centerprise had sufficiently alleged that defendants’ conduct had a “direct, substantial, and reasonably foreseeable” effect on U.S. domestic commerce, the first prong of

the domestic injury exception, but did not sufficiently allege

the second prong, that such U.S. domestic effect “g[ave] rise

to” Centerprise’s foreign injury under § 6a of the FTAIA.

Only the district court’s conclusion with respect to the second

prong of the domestic injury exception is at issue in this appeal.6

[4] The controlling precedent on the FTAIA domestic

injury exception is the Supreme Court’s opinion in Empagran

I. There the Supreme Court addressed the exception in the

context of an antitrust class action brought by foreign purchasers of vitamins who alleged a global price-fixing conspiracy that led to increased prices in the United States, and

independently led to increased prices for vitamins in other

countries. 542 U.S. 155. The Court stated the issue as whether

the Sherman Act reaches “anti-competitive price-fixing activity that is in significant part foreign, that causes some domestic antitrust injury, and that independently causes separate

foreign injury.” Id. at 158. 

[5] After considering principles of comity and the history

of the Sherman Act and the FTAIA, the Court concluded that

“Congress would not have intended the FTAIA’s exception to

bring independently caused foreign injury within the Sherman

Act’s reach.” See id. at 173. Thus the foreign purchasers who

bought vitamins outside of the United States could not bring

a claim under the Sherman Act “where [their] claim rests

solely on the independent foreign harm.” Id. at 159. The

Court remanded the case to the D.C. Circuit to consider the

plaintiffs’ alternative argument that the foreign injury was

6We focus on whether the exception to the FTAIA’s general rule

excluding application of the Sherman Act is available because it is undisputed that the alleged price-fixing conduct falls within the FTAIA’s general rule because the price-fixing activity constitutes “conduct involving

trade or commerce . . . with foreign nations.” § 6a. 

14352 IN RE DYNAMIC RANDOM ACCESS MEMORY
linked to the domestic effects, and not independent of them.

Id. at 175. The Court left open the question of the standard to

apply in determining whether the plaintiffs alleged a sufficient

link between the U.S. effect and their foreign injury so as to

establish subject matter jurisdiction under the Sherman Act.7

[6] On remand, the D.C. Circuit held that the “gives rise to”

language of § 6a of the FTAIA domestic injury exception

requires a direct or proximate causal relationship between the

domestic effect and the foreign injury, not merely a “but for”

relationship. See Empagran S.A. v. F. Hoffmann-Laroche,

Ltd., 417 F.3d 1267, 1271 (D.C. Cir. 2005) (“Empagran II”).

The plaintiffs’ asserted theory on remand was that the domestic effect of the anticompetitive conduct — higher U.S. vitamin prices — gave rise to their foreign injury of higher

vitamin prices abroad because the defendants could not have

maintained their global price-fixing arrangement without fixing the prices in the United States as well. The court concluded that under this theory the domestic effect of the

conspiracy was only a “but for” cause of the plaintiffs’ injuries, so the requirements of the FTAIA exception were not

met and the Sherman Act was therefore inapplicable. The

7The Areeda & Hovenkamp treatise comments on this open question as

follows: 

Clearly [the Supreme Court] could not have meant that the

mere fact that this was a conspiracy involving both sellers and

buyers all over the world was sufficient. To be sure, in such a

conspiracy the injury to any particular buyer is linked to the

injury suffered by other buyers or else the conspiracy would not

work. . . . 

But the forbearance of one cartel member from cutting price or

shipping into another cartel member’s territory is necessary to the

functioning of every cartel. To interpret “linkage” of foreign and

domestic injury this broadly would have undermined the entirety

of the Court’s opinion, which unambiguously held that foreign

plaintiffs injured by a conspiracy that also injured American purchasers could not sue under the Sherman Act. 

Areeda & Hovenkamp ¶ 272i5, pp. 317-18. 

IN RE DYNAMIC RANDOM ACCESS MEMORY 14353
Eighth Circuit recently joined the D.C. Circuit in interpreting

the FTAIA’s domestic injury exception to require proximate

cause. See In re Monosodium Glutamate Antitrust Litig., 477

F.3d 535, 539 (8th Cir. 2007). 

We have not had occasion since Empagran I to illuminate

the standard that applies in determining whether a domestic

effect “gives rise to” a foreign injury, where the plaintiff

alleges its foreign injury was linked to the domestic effect of

the defendants’ anticompetitive conduct. Like the plaintiffs in

Empagran II, Centerprise contends the FTAIA’s domestic

injury exception requires only “but for” causation and that its

claim meets this standard. Alternatively, Centerprise contends

that its claim satisfies even a proximate cause standard. 

[7] Like the D.C. Circuit and the Eighth Circuit, we conclude that “but for” causation cannot suffice for the FTAIA

domestic injury exception to apply and therefore adopt a

proximate causation standard. As our sister circuits have

explained, a proximate cause standard is consistent with principles of comity — “the respect sovereign nations afford each

other by limiting the reach of their laws.” Empagran II, 417

F.3d at 1271 (internal quotations omitted). The Supreme

Court counseled in Empagran I that the principles of comity

require us to “ordinarily construe[ ] ambiguous statutes to

avoid unreasonable interference with the sovereign authority

of other nations.” 542 U.S. at 164; see In re Monosodium Glutamate, 477 F.3d at 538; Empagran II, 417 F.3d at 1271. To

interpret the FTAIA broadly as requiring only “but for” causation would risk the very sort of interference that we ordinarily seek to avoid. See Empagran I, 542 U.S. at 165 (“Why

should American law supplant, for example, Canada’s or

Great Britain’s or Japan’s own determination about how best

to protect Canadian or British or Japanese customers from

anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?”).8

8The case before us illustrates this point well. At oral argument, Centerprise acknowledged “[it] could” bring suit in the United Kingdom against

14354 IN RE DYNAMIC RANDOM ACCESS MEMORY
[8] Further, the Supreme Court said that “the FTAIA’s language and history suggest that Congress designed the FTAIA

to clarify, perhaps to limit, but not to expand in any significant way, the Sherman Act’s scope as applied to foreign commerce.” Empagran I, 542 U.S. at 169 (emphasis in original).

If we were to adopt a “but for” standard, we would indeed be

expanding the Sherman Act’s scope as applied to foreign

commerce, notwithstanding Centerprise’s contention to the

contrary. 

None of the cases predating the FTAIA interpret the reach

of the Sherman Act as expansively as Centerprise urges we

should do here. The pre-FTAIA cases that Centerprise relies

upon, Pfizer, Inc. v. Government of India, 434 U.S. 308

(1978), and Industria Siciliana Asfalti, Bitumi, S.p.A. v. Exxon

Research & Engineering Co., No. 75 Civ. 5828-CSH, 1977

WL 1353 (S.D.N.Y. Jan. 18, 1977), certainly do not reflect a

“but for” standard. In Pfizer, although saying that Congress

did not intend to make remedies under U.S. antitrust laws

available only to U.S. consumers, the Supreme Court was

speaking only to the issue of whether a foreign nation could

be a “person” under antitrust laws. See Pfizer, 434 U.S. at

312, 314. It did not address the requisite causal relationship

between the domestic effect and the foreign injury. If anything, the Court wrote in terms suggesting that the foreign

sovereigns were directly injured by the defendants’ antitrust

violations. See, e.g., id. at 314-15 (“To deny a foreign plaintiff

injured by an antitrust violation the right to sue would . . . permit a price fixer or monopolist to escape full liability for his

illegal actions and would deny compensation to certain of his

victims, merely because he happens to deal with foreign custhe defendants for their anticompetitive conduct. We recognize that some

of the defendants here are American corporations, but many are not, and

Centerprise does not dispute that all of its purchases were made outside

U.S. commerce, making real the risk of interference with a foreign

nation’s ability to regulate its commercial affairs. 

IN RE DYNAMIC RANDOM ACCESS MEMORY 14355
tomers.” (emphasis added)). In Industria Siciliana, the domestic effect at issue was plainly the direct cause of the plaintiff’s

injury. There, a U.S. company was party to a reciprocal agreement that coerced the foreign consumer to forgo a more

advantageous bid for design and engineering services from

another U.S. company, a violation whose domestic effect

directly and proximately caused the foreign plaintiff having to

pay higher, super-competitive prices for the U.S. services. See

Industria Siciliana, 1977 WL 1353, at *2, 11. 

[9] Finally, the proximate cause standard is consistent with

general antitrust principles, which typically require a direct

causal link between the anticompetitive practice and plaintiff’s damages. See Holmes v. Sec. Investor Prot. Corp., 503

U.S. 258, 267-68 (1992); Associated Gen. Contractors of

Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519,

533-35 (1983); see also In re Monosodium Glutamate, 477

F.3d at 538-39. Accordingly, we hold that the “gives rise to”

language of the domestic injury exception requires a direct or

proximate causal relationship. 

[10] Applying the proximate cause standard to Centerprise’s stated claim, we conclude that the domestic effect of

the defendants’ alleged price-fixing conspiracy did not give

rise to Centerprise’s alleged foreign injury so as to satisfy the

second prong of the FTAIA domestic injury exception. The

defendants’ conspiracy may have fixed prices in the United

States and abroad, and maintaining higher U.S. prices might

have been necessary to sustain the higher prices globally, but

Centerprise has not shown that the higher U.S. prices proximately caused its foreign injury of having to pay higher prices

abroad. Other actors or forces may have affected the foreign

prices. In particular, that the conspiracy had effects in the

United States and abroad does not show that the effect in the

United States, rather than the overall price-fixing conspiracy

itself, proximately caused the effect abroad. See In re Monosodium Glutamate, 477 F.3d at 539-40 (“The domestic effects

of the price fixing scheme (increased U.S. prices) were not the

14356 IN RE DYNAMIC RANDOM ACCESS MEMORY
direct cause of the appellants’ injuries. Rather, it was the foreign effects of the price fixing scheme (increased prices

abroad).” (emphasis added)). 

[11] Notably, Centerprise is a foreign consumer that made

its purchases entirely outside of the United States. It has

recourse under its own country’s antitrust laws. See supra

note 7. Centerprise’s indirectly linked foreign injury is not of

the type that Congress intended to bring within the Sherman

Act’s reach when it enacted the FTAIA, as evidenced by the

domestic injury exception’s narrow phrasing. Centerprise’s

causation theory directly parallels the “but for” or indirect

causation theories rejected in Empagran II and In re Monosodium Glutamate.

9

See Empagran II, 417 F.3d at 1270

(rejecting as insufficient the plaintiffs’ theory that “[b]ecause

the . . . product (vitamins) was fungible and globally marketed, [the defendants] were able to sustain super-competitive

prices abroad only by maintaining super-competitive prices in

9Centerprise’s argument that its case is similar to Caribbean Broadcasting Systems, Ltd. v. Cable and Wireless PLC, 148 F.3d 1080 (D.C. Cir.

1998), and MM Global Services v. Dow Chemical Co., 329 F. Supp. 2d

337 (D. Conn. 2004), also fails. First, it is questionable whether Caribbean

Broadcasting has any relevance, because it pre-dates Empagran I and does

not interpret the provision of the FTAIA at issue here. See Caribbean

Broad., 148 F.3d at 1087. Second, the case is factually distinguishable.

There, the plaintiff alleged the defendants violated the Sherman Act in

maintaining a broadcast monopoly in the eastern Caribbean by misrepresenting to its advertising customers the breadth of the station’s broadcasting reach, an effect of which was that U.S. advertisers paid excessive

prices for advertising. This effect in the United States directly caused the

plaintiff to lose revenue because it could not sell advertising to the same

U.S. businesses. Centerprise alleges no such foreclosure of the market by

rivals. MM Global Services is also inapposite because the plaintiffs there

pled direct participation in domestic commerce, unlike Centerprise whose

complaint concerns only wholly foreign transactions. The plaintiffs argued

that the defendants fixed minimum resale prices and other terms for selling and reselling products in and from the United States, and compelled

plaintiffs to agree to engage in a price maintenance conspiracy, thereby

injuring the plaintiffs by precluding them from fully competing in the

sales of their products. See MM Global Services, 329 F. Supp. 2d at 342.

IN RE DYNAMIC RANDOM ACCESS MEMORY 14357
the United States as well.”); In re Monosodium Glutamate,

477 F.3d at 539-40. Likewise, Centerprise’s statement that

“[t]he United States prices were the source of, and substantially affected the worldwide DRAM prices” alleges no more

than the “but for” causation that we hold does not suffice. In

sum, Centerprise’s complaint suggests that super-competitive

DRAM prices in the United States may have facilitated the

defendants’ scheme to charge super-competitive prices

abroad, but it does not sufficiently allege a theory that the

higher U.S. prices proximately caused Centerprise’s foreign

injury of having to pay higher prices outside the United

States. 

[12] Centerprise argues, however, that beyond alleging a

theory similar to that rejected by our sister circuits, it is alleging “a direct correlation between the U.S. price and the prices

abroad” and “that the Defendants’ activities resulted in the

U.S. prices directly setting the worldwide price.” At oral argument, Centerprise was unable to explain how these additional

allegations change its causation theory or how they make its

claim distinguishable from those in Empagran II or In re

Monosodium Glutamate. First, a direct correlation between

prices does not establish a sufficient causal relationship. Similar arguments were made and rejected in Empagran II and In

re Monosodium Glutamate — that there was a single global

price kept in equipoise by the maintenance of supercompetitive prices in the U.S. market. See Empagran II, 417

F.3d at 1271, n.5; In re Monosodium Glutamate, 477 F.3d at

539-40. As to Centerprise’s assertion that the defendants’

activities resulted in the U.S. prices setting the worldwide

price, Centerprise has taken liberties in characterizing the language of its complaint and, moreover, has not set forth a theory with any specificity of how this price-setting occurred or

how it shows a direct causal relationship.10 See Kendall v.

10Most notably, paragraph 75 of its complaint alleges: 

Memory purchases are a 24 hour global business, dependent in

large part on United States events. For example, Plaintiff and

14358 IN RE DYNAMIC RANDOM ACCESS MEMORY
Visa U.S.A., Inc., 518 F.3d 1042, 1046-47 (9th Cir. 2008)

(faulting antitrust complaint for failing to plead necessary evidentiary facts). We therefore hold that Centerprise has not

sufficiently alleged that the domestic effect gave rise to its

foreign injury so as to bring its claim within the FTAIA

exception. 

The district court properly concluded that Centerprise’s

failure to provide any comprehensible theory alleging a direct

causal link between the domestic effects and the foreign

injury warranted dismissal. 

III. Leave to Amend

We review a district court’s denial of leave to amend a

complaint for abuse of discretion. See McGlinchy v. Shell

Chem. Co., 845 F.2d 802, 818 (9th Cir. 1988). A court properly exercises its discretion in denying leave to amend if the

proposed amendment would be futile. See Gabrielson v.

Montgomery Ward & Co., 785 F.2d 762, 766 (9th Cir. 1986).

At oral argument before the district court, Centerprise proposed amending its complaint to include an allegation about

the correlation between “U.S. prices during the conspiracy

many Class members start their days with communications to

Defendants in Taiwan and Korea to understand what pricing is

available for DRAM, and as the day goes on follow sales in the

United States. Plaintiff and Class members were required to track

the DRAM prices in dollars, which was the only available measure due to Defendants’ sales and distribution practices, then

work on dollar exchange rates in order to buy the DRAM at the

best available price worldwide. The United States prices were the

source of, and substantially affected the worldwide DRAM

prices. 

The significance of these assertions, however, is not self-evident and

Centerprise has not elaborated on how any of its asserted facts show that

the higher U.S. DRAM prices proximately caused the excessive DRAM

prices that Centerprise paid. 

IN RE DYNAMIC RANDOM ACCESS MEMORY 14359
and those in Europe and Asia-Pacific.” Centerprise argued

that this would show that the defendants’ “pricing of DRAM

in the U.S. market, . . . with the knowledge that based on the

way the market worked and the sales and distribution practices, . . . was going to result in a direct correlation.” Centerprise argued this correlation was reflected in charts it

submitted to the district court. The district court noted that an

additional allegation about the correlation or interdependence

of markets would not suffice to show that the effect in the

United States actually “g[ave] rise to” the plaintiff’s claim;

Centerprise could not escape a finding of no subject matter

jurisdiction unless it came up with a different theory of recovery altogether. 

[13] We agree that the additional allegation Centerprise

proposed was similar to those it already made and alleged too

indirect a link to support subject matter jurisdiction under the

FTAIA. Centerprise’s assertion that the domestic and foreign

prices were directly correlated, without more, did not warrant

granting leave to amend. Therefore, we hold the district court

did not abuse its discretion in denying leave to amend as futile.11

The judgment of the district court is affirmed. 

AFFIRMED.

12

NOONAN, Circuit Judge, concurring: 

There is such a thing as “cause in fact,” that is, an event

that, not necessarily alone, brings about a given result. A “but

11In light of our decision on FTAIA subject matter jurisdiction and the

district court’s refusal of leave to amend the complaint, we do not reach

defendants’ contention that Centerprise lacks antitrust standing. 

12Appellees’ Request for Judicial Notice filed September 20, 2006 is

denied as unnecessary. 

14360 IN RE DYNAMIC RANDOM ACCESS MEMORY
for” cause is cause in fact. A “legal cause” is a cause in fact

that is recognized in law as creating liability. A “proximate

cause” is a legal cause. What turns cause in fact into a legal

cause is a value judgment that the cause in fact creates an

unacceptable risk of injury to a protected interest. What is an

unacceptable risk and what is to be protected depend on the

values of the society. 

As Cardozo’s famous opinion in Palsgraf makes clear, that

is how causation is often considered in the law of negligence.

Antitrust law, apparently, still offers “proximate” as if it provided something more than a label for a judgment that the

conduct in question is foreseeably harmful to a social interest

worthy of protection. 

In the instant case, it would seem that reasonably prudent

persons in the position of the defendants would see that their

actions setting prices in the United States would negatively

affect customers in the United States and elsewhere. But it has

been the judgment of Congress and the Supreme Court that

the economic interests of consumers outside the United States

are normally not something that American law is intended to

protect. Hence it is difficult to persuade a court that injury to

foreign consumers has been “caused” by price-fixing in the

United States. It’s so difficult that amendment of the complaint becomes futile and jurisdiction itself is found not to

exist. We reach this vanishing point not from guidance in

words like “proximate” or “direct” but from a strong sense

that the protection of consumers in another country is normally the business of that country. Location, not logic, keeps

Centerprise’s claim out of court.

IN RE DYNAMIC RANDOM ACCESS MEMORY 14361