In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-8003

MOTOROLA MOBILITY LLC,

Plaintiff-Appellant,

v.

AU OPTRONICS CORP., et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 9 C 6610 — Joan B. Gottschall, Judge.

____________________

ARGUED NOVEMBER 13, 2014 — DECIDED NOVEMBER 26, 2014

AMENDED—JANUARY 12, 2015*

____________________

Before POSNER, KANNE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. Back in March we granted the 

plaintiff’s unopposed petition for leave to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) from an order

granting partial summary judgment in favor of the defendants (which include Samsung, Sanyo, and several other for-

* This amended opinion replaces the opinion in this case that was issued 

by the panel on November 26 and that is reported at 2014 WL 6678622.

 
2 No. 14-8003

eign companies besides AU Optronics), thereby extinguishing most of the plaintiff’s case. The district judge certified

the order for an immediate appeal. We agreed to hear the 

appeal, and without asking for further briefing or oral argument affirmed the district court’s decision in an opinion, 

reported at 746 F.3d 842 (7th Cir. 2014), that we later vacated, ordering rehearing and directing further briefing and 

oral argument, now complete. We have also granted several 

requests for permission to file amicus curiae briefs, including 

a brief from the Department of Justice and briefs from foreign countries worried about the implications of Motorola’s 

suit for their own competition policies.

Motorola, the plaintiff-appellant, and its ten foreign subsidiaries, buy liquid-crystal display (LCD) panels and incorporate them into cellphones manufactured by Motorola or 

the subsidiaries. The suit accuses foreign manufacturers of 

the panels of having violated section 1 of the Sherman Act, 

15 U.S.C. § 1, by agreeing with each other on the prices they 

would charge for the panels. Those manufacturers are the 

defendants-appellees.

The appeal does not concern all the allegedly price-fixed 

LCD panels. (We’ll drop “allegedly” and “alleged,” for simplicity, and assume that the panels were indeed pricefixed—a plausible assumption since defendant AU Optronics has been convicted of participating in a criminal conspiracy to fix the price of panel components of the cellphones 

manufactured by Motorola’s foreign subsidiaries. United 

States v. Hsiung, 758 F.3d 1074 (9th Cir. 2014).) About 1 percent of the panels sold by the defendants to Motorola and its 

subsidiaries were bought by, and delivered to, Motorola in 

the United States for assembly here into cellphones; to the 
No. 14-8003 3

extent that the prices of the panels sold to Motorola had been 

elevated by collusive pricing by the manufacturers, Motorola 

has a solid claim under section 1 of the Sherman Act. The

other 99 percent of the cartelized components, however, 

were bought and paid for by, and delivered to, foreign subsidiaries (mainly Chinese and Singaporean) of Motorola. 

Forty-two percent of the panels were bought by the subsidiaries and incorporated by them into cellphones that the subsidiaries then sold to and shipped to Motorola for resale in 

the United States. Motorola did none of the manufacturing 

or assembly of these phones. The sale of the panels to these 

subsidiaries is the focus of this appeal.

Another 57 percent of the panels, also bought by 

Motorola’s foreign subsidiaries, were incorporated into cellphones abroad and sold abroad. As neither those cellphones 

nor their panel components entered the United States, they

never became a part of domestic U.S. commerce, see 15 

U.S.C. § 6a, and so, as we’re about to see, can’t possibly support a Sherman Act claim.

Motorola says that it “purchased over $5 billion worth of 

LCD panels from cartel members [i.e., the defendants] for 

use in its mobile devices.” That’s a critical misstatement. All 

but 1 percent of the purchases were made by Motorola’s foreign subsidiaries. The subsidiaries are not Motorola; they are 

owned by Motorola. Motorola and its subsidiaries do not, as 

it argues in its opening brief, function “as a ‘single enterprise.’” And from this we can begin to see the oddity of this 

case. If a firm is injured by unlawful acts of other firms, the 

firm may have a cause of action against the injurers but the 

firm’s owner does not. The victims of the price fixing of LCD 

panels were Motorola’s foreign subsidiaries. Motorola itself, 
4 No. 14-8003

along with U.S. purchasers of cellphones incorporating those 

panels, were at most derivative victims.

The district judge ruled that Motorola’s suit, insofar as it 

relates to the 99 percent of panels purchased by the foreign 

subsidiaries, is barred by 15 U.S.C. §§ 6a(1)(A), (2), which are 

sections of the Foreign Trade Antitrust Improvements Act, 

15 U.S.C. § 6a. That act that has been interpreted, for reasons 

of international comity (that is, good relations among nations), to limit the extraterritorial application of U.S. antitrust 

law. Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: 

An Analysis of Antitrust Principles and Their Application

¶ 273c2 (3d ed. 2006). Sections 6a(1)(A) and (2) provide that 

the Sherman Act “shall not apply to conduct involving trade 

or commerce (other than import trade or import commerce) 

with foreign nations unless ... such conduct has a direct, 

substantial, and reasonably foreseeable effect ... on trade or 

commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign 

nations,” and also, in either case, unless the “effect [on import trade or domestic commerce] gives rise to a claim” under federal antitrust law. See, e.g., F. Hoffmann-La Roche Ltd. 

v. Empagran S.A., 542 U.S. 155, 161–62 (2004); Minn-Chem, 

Inc. v. Agrium, Inc., 683 F.3d 845, 853–54 (7th Cir. 2012) (en 

banc).

It is essential to understand that these are two requirements. There must be a direct, substantial, and reasonably 

foreseeable effect on U.S. domestic commerce—the domestic 

American economy, in other words—and the effect must 

give rise to a federal antitrust claim. The first requirement, if 

proved, establishes that there is an antitrust violation; the 

second determines who may bring a suit based on it.
No. 14-8003 5

Had the defendants conspired to sell LCD panels to 

Motorola in the United States at inflated prices, they would 

be subject to the Sherman Act because of the exception in the 

Foreign Trade Antitrust Improvements Act for importing.

That is the 1 percent, which is not involved in the appeal. 

Regarding the 42 percent, Motorola is wrong to argue that it 

is import commerce. It was Motorola, rather than the defendants, that imported these panels into the United States, 

as components of the cellphones that its foreign subsidiaries 

manufactured abroad and sold and shipped to it. So it first

must show that the defendants’ price fixing of the panels 

that they sold abroad and that became components of cellphones also made abroad but imported by Motorola into the 

United States had “a direct, substantial, and reasonably foreseeable effect” on commerce within the United States. The 

panels—57 percent of the total—that never entered the United States neither affected domestic U.S. commerce nor gave 

rise to a cause of action under the Sherman Act.

If the prices of the components were indeed fixed, there 

would be an effect on domestic U.S. commerce. And that effect would be foreseeable (because the defendants knew that 

Motorola’s foreign subsidiaries intended to incorporate 

some of the panels into products that Motorola would resell 

in the United States), could be substantial, and might well be 

direct rather than “remote,” the word we used in MinnChem, Inc. v. Agrium, Inc., supra, 683 F.3d at 856–57, to denote 

effects that the statutory requirement of directness excludes.

The price fixers had, it is true, been selling the panels not 

in the United States but abroad, to foreign companies (the 

Motorola subsidiaries) that incorporated them into cellphones that the foreign companies then exported to the 
6 No. 14-8003

United States for resale by the parent company, Motorola. 

The effect of fixing the price of a component on the price of 

the final product was therefore less direct than the conduct 

in Minn-Chem, where “foreign sellers allegedly created a cartel, took steps outside the United States to drive the price up 

of a product that is wanted in the United States, and then 

(after succeeding in doing so) sold that product to U.S. customers.” Id. at 860 (emphasis added). But at the same time the 

facts of this case are not equivalent to what we said in MinnChem would definitely block liability under the Sherman Act: 

the “situation in which action in a foreign country filters 

through many layers and finally causes a few ripples in the 

United States.” Id. In this case components were sold by 

their manufacturers to the foreign subsidiaries, which incorporated them into the finished product and sold the finished 

product to Motorola for resale in the United States. This 

doesn’t seem like “many layers,” resulting in just “a few ripples” in the United States cellphone market, though, as we’ll 

see, the ripple effect probably was modest. We’ll assume that 

the requirement of a direct, substantial, and reasonably foreseeable effect on domestic commerce has been satisfied, as in 

Minn-Chem and Lotes Co. v. Hon Hai Precision Industry Co., 

753 F.3d 395, 409–13 (2d Cir. 2014).

What trips up Motorola’s suit is the statutory requirement that the effect of anticompetitive conduct on domestic 

U.S. commerce give rise to an antitrust cause of action. 15 

U.S.C. § 6a(2). The conduct increased the cost to Motorola of 

the cellphones that it bought from its foreign subsidiaries, 

but the cartel-engendered price increase in the components 

and in the price of cellphones that incorporated them occurred entirely in foreign commerce.
No. 14-8003 7

We have both direct purchasers—Motorola’s foreign subsidiaries—from the price fixers, and two tiers of indirect 

purchasers: Motorola, insofar as the foreign subsidiaries 

passed on some or all of the increased cost of components to 

Motorola, and Motorola’s cellphone customers, insofar as

Motorola raised the resale price of its cellphones in an attempt to offload the damage to it from the price fixing to its 

customers. According to Motorola’s damages expert, B. 

Douglas Bernheim, the company raised the price of its cellphones in the United States by more than the increased price 

charged to it by its foreign subsidiaries. We have no information about whether Motorola lost customers as a result—

it may not have, if other cellphone sellers raised their prices 

as well. Perhaps because Motorola may actually have profited from the price fixing of the LCD panels, it has waived any 

claim that the price fixing affected the price that Motorola’s 

foreign subsidiaries charged, or were told by Motorola to 

charge, for the cellphones that they sold their parent. (We’ll 

come back to the issue of waiver.)

Whether or not Motorola was harmed indirectly, the 

immediate victims of the price fixing were its foreign subsidiaries, see F. Hoffmann-La Roche Ltd. v. Empagran S.A., supra, 

542 U.S. at 173–75, and as we said in the Minn-Chem case 

“U.S. antitrust laws are not to be used for injury to foreign 

customers,” 683 F.3d at 858. Motorola’s subsidiaries are governed by the laws of the countries in which they are incorporated and operate; and “a corporation is not entitled to establish and use its affiliates’ separate legal existence for some 

purposes, yet have their separate corporate existence disregarded for its own benefit against third parties.” Disenos Artisticos E Industriales, S.A. v. Costco Wholesale Corp., 97 F.3d 

377, 380 (9th Cir. 1996). For example, although for antitrust 
8 No. 14-8003

purposes Motorola contends that it and its subsidiaries are 

one (the “it” we referred to earlier), for tax purposes its subsidiaries are distinct entities paying foreign rather than U.S. 

taxes.

Distinct in uno, distinct in omnibus. Having submitted to 

foreign law, the subsidiaries must seek relief for restraints of 

trade under the law either of the countries in which they are 

incorporated or do business or the countries in which their

victimizers are incorporated or do business. The parent has 

no right to seek relief on their behalf in the United States.

Motorola wants us to treat it and all of its foreign subsidiaries as a single integrated enterprise, as if its subsidiaries 

were divisions rather than foreign corporations. But American law does not collapse parents and subsidiaries (or sister 

corporations) in that way. Some foreign nations, it is true, 

treat multinational enterprises as integrated units. See, e.g.,

Binda Sahni, “The Interpretation of the Corporate Personality of Transnational Corporations,” 15 Widener L.J. 1 (2005). A 

number of countries (mainly in the Third World) persuaded

the U.N. General Assembly in 1974 to issue a resolution entitled “Charter of Economic Rights and Duties of States” that 

could be understood to intimate that First World parents 

were responsible for the actions of their Third World subsidiaries. For chapter 2, Article 2(b), of the Charter provides that 

each state has the right “to regulate and supervise the activities of transnational corporations within its national jurisdiction and take measures to ensure that such activities comply 

with its laws, rules and regulations and conform with its 

economic and social policies. Transnational corporations 

shall not intervene in the internal affairs of a host State. Every State should, with full regard for its sovereign rights, co-
No. 14-8003 9

operate with other States in the exercise of the right set forth 

in this subparagraph.” But the United States and other developed countries refused to buy that theory. They insisted, 

and continue to insist, that corporate formalities should be 

respected unless one of the recognized justifications for 

piercing the veil, or otherwise deeming a parent and a subsidiary one, is present. See, e.g., On Command Video Corp. v. 

Roti, 705 F.3d 267 (7th Cir. 2013); Sahni, supra, at 13. None is 

present in this case.

This is thus a case of derivative injury, and derivative injury rarely gives rise to a claim under antitrust law, for example by an owner or employee of, or an investor in, a company that was the target of, and was injured by, an antitrust 

violation. Mid-State Fertilizer Co. v. Exchange National Bank of 

Chicago, 877 F.2d 1333, 1335–36 (7th Cir. 1989); see generally 

Brunswick Corp. v. Pueblo Bowl-O-Mat, 429 U.S. 477 (1977).

Those derivative victims are said to lack “antitrust standing.” Often, as in the example just given, their claims would 

be redundant, because if the direct victim received full compensation there would be no injury to the owner, employee, 

or investor—he or it would probably be as well off as if the 

antitrust violation had never occurred. If Motorola’s foreign 

subsidiaries have been injured by violations of the antitrust 

laws of the countries in which they are domiciled, they have 

remedies; if the remedies are inadequate, or if the countries 

don’t have or don’t enforce antitrust laws, these are consequences that Motorola committed to accept by deciding to 

create subsidiaries that would be governed by the laws of 

those countries. (An important, and highly relevant, application of the concept of “antitrust standing” is the indirectpurchaser doctrine of the Illinois Brick case, discussed below.)
10 No. 14-8003

No doubt Motorola thinks U.S. antitrust remedies more 

fearsome than those available to its foreign subsidiaries under foreign laws. But that’s just to say that Motorola is asserting a right to forum shop. Should some foreign country 

in which one of its subsidiaries operates have stronger antitrust remedies than the United States does, Motorola would 

tell that subsidiary to sue under the antitrust law of that 

country.

A related flaw in Motorola’s case is its collision with the 

indirect-purchaser doctrine of Illinois Brick Co. v. Illinois, 431 

U.S. 720 (1977), which forbids a customer of the purchaser 

who paid a cartel price to sue the cartelist, even if his seller—

the direct purchaser from the cartelist—passed on to him 

some or even all of the cartel’s elevated price. Motorola’s 

subsidiaries were the direct purchasers of the price-fixed 

LCD panels, Motorola and its customers indirect purchasers 

of the panels. Confusingly, at the oral argument Motorola’s 

able counsel stated his approval of the Illinois Brick doctrine, 

yet Motorola’s briefs assert, albeit without any basis that we 

can see, that the Foreign Trade Antitrust Improvements Act, 

because it does not mention Illinois Brick (or the indirectpurchaser doctrine, announced in that case), is not subject to 

it.

Because it is difficult to assess the impact of a price increase at one level of distribution on prices and profits at a 

subsequent level, and thus to apportion damages between 

direct and indirect (i.e., subsequent) purchasers (here, between Motorola’s subsidiaries, Motorola the parent, and 

Motorola’s cellphone customers), the indirect-purchaser doctrine cuts off analysis at the first level. This may result in a 

windfall for the direct purchaser, but preserves the deterrent 
No. 14-8003 11

effect of antitrust damages liability while eliding complex 

issues of apportionment. In this case the first sale was to a 

foreign subsidiary of Motorola that could sue the price fixers 

under the law of the country of which the subsidiary was a 

citizen, or the law of the countries of which the price fixers 

were citizens (or a country of which a particular price fixer 

that the subsidiary decided to sue was a citizen). Motorola, 

the American parent, the harm to which from the price fixing would be so difficult to estimate, could not sue under 

federal antitrust law.

Speaking of the difficulty of estimating harm to 

Motorola, we point out that although this suit is more than 

five years old there is a remarkable dearth of evidence from 

which to infer actual harm to Motorola. Its briefs lack the 

numbers one would need to infer, let alone to quantify, such 

harm. But the report of Motorola’s expert witness on damages, B. Douglas Bernheim, provides a basis for informed 

speculation. Suppose hypothetically that a cellphone costs a 

Motorola foreign subsidiary $100 to manufacture, and the 

subsidiary sells it to Motorola for $120 to cover the costs of 

assembling the components that go to make up the cellphone, and of shipment. Motorola in turn resells the cellphone to American consumers for $150. One of the components costs the subsidiary $10 (10 percent of the total cost of 

the cellphone—this appears to be an approximately accurate 

estimate for the LCD panels installed in the cellphones). The 

manufacturers of that component form a cartel and raise the 

price to $12, a 20 percent increase. Now the cost of making 

the cellphone is $102, and to reflect this cost increase 

Motorola could be expected to direct the subsidiary to raise 

its price to Motorola from $120 to, say, $122. What would 

Motorola do next? It would like to maintain its profit mar-
12 No. 14-8003

gin, and so we might expect it to raise its resale price—the 

price of its cellphones to the American consumer—from $150 

to $152. That would be only a 1.33 percent increase. Would 

Motorola lose sales and therefore profits? Who knows? The 

price increase is tiny, and competitors might think it more 

profitable to match it than to undercut it; they might think 

their sales would not fall appreciably and that their profit 

margins would be slightly higher. This would be an example 

of tacit collusion, which is not an antitrust violation.

It is uncertainties like these that confirm the wisdom of 

the indirect-purchaser doctrine of Illinois Brick.

Motorola claims that it told the subsidiaries how much 

they could pay the cartel sellers for the panels—that its subsidiaries “issued purchase orders at the price and quantity 

determined by Motorola in the United States” and that 

therefore Motorola was the real buyer of the panels and so 

the panels were really imported directly into the United 

States rather than being sold abroad to the subsidiaries. In 

other words, Motorola is pretending that its foreign subsidiaries are divisions rather than subsidiaries. But Motorola 

can’t just ignore its corporate structure whenever it’s in its 

interests to do so. It can’t pick and choose from the benefits 

and burdens of United States corporate citizenship. It isn’t 

claiming that its foreign subsidiaries owe taxes to the United 

States instead of to the foreign countries in which they are 

incorporated, countries that may have lower tax rates, or be 

less efficient at tax collection. It isn’t claiming that its foreign 

subsidiaries are bound by the workplace safety or labor laws 

of the United States. Having chosen to conduct its LCD purchases through legally distinct entities organized under for-
No. 14-8003 13

eign law, it cannot now impute to itself the harm suffered by 

them.

Motorola insists that it was the “target” of the price fixers—that they “integrated themselves into the design of 

Motorola’s U.S. products, and intentionally manipulated 

Motorola’s price negotiations by illegally exchanging 

Motorola-specific information.” But this is just inflated rhetoric used to describe, what is obvious, that firms engaged in 

the price fixing of a component are critically interested in the 

market demand for the finished product—knowledge of that 

demand is essential to deciding on the optimal price of the 

component. If the price fixers are too greedy and fix a very 

high price for the component, this may result in so high a 

price for the finished product that the sales of that product 

will fall and with it the purchases of the component and 

quite possibly the profits of the price fixers.

Motorola’s “target” theory of antitrust liability would 

nullify the doctrine of Illinois Brick. For we’ve just seen that 

in deciding how much to charge the direct purchaser, a cartel would always want to estimate the price at which the direct purchaser would resell in order to capture some or all of 

the resale profits. There is nothing unusual about firms’ trying to pass on cost increases to their buyers; the buyers are 

hurt but as long as Illinois Brick is the law their hurt doesn’t 

give them an antitrust case of action. Thus in asking us not 

to “ignore the injuries defendants knowingly caused to 

Motorola’s U.S. business through their deliveries abroad,” 

Motorola ignores the fact that a cartel almost always knowingly causes injury to indirect purchasers, yet those purchasers are barred from suit by Illinois Brick and the doctrine of 

antitrust standing that the rule of that case instantiates.
14 No. 14-8003

It’s true that the opinion in Illinois Brick states that a “situation in which market forces have been superseded and the 

pass-on defense might be permitted is where the direct purchaser is owned or controlled by its customer.” Id. at 736 n. 

16. But “might be” is not “is,” and the distinction is significant in this case. Although Motorola, the “customer,” owns 

its foreign subsidiaries—the “direct purchasers” of the components—they are incorporated under and regulated by foreign law. What remedies they may have, if they overpay for 

inputs that they buy abroad, are determined not by U.S. antitrust law but by the law of the countries in which the subsidiaries are incorporated and of which they are therefore citizens of, or the law of the countries in which the price fixers 

they bought from operate, or of the countries in which the 

purchases were made. And that is quite apart from Illinois 

Brick or other sources of U.S. antitrust law

But supposing this is wrong and Motorola is correct that 

it and its subsidiaries “are one,” there was no sale by the 

subsidiaries to Motorola. Instead the component manufacturers (the price fixers) sold components to “the one,” which 

assembled them into cellphones, and “the one” sold the cellphones to U.S. consumers. The sales to consumers would 

therefore have been the first sales in the United States—the 

first in domestic commerce, since “the one” bought the 

price-fixed components abroad. Remember that the Foreign 

Trade Antitrust Improvements Act requires that the effect of 

an anticompetitive practice on domestic U.S. commerce 

must, to be subject to the Sherman Act, give rise to an antitrust cause of action. ”The one” (Motorola and its foreign 

subsidiaries conceived of as a single entity) would have been 

injured abroad when “it” purchased the price-fixed components.
No. 14-8003 15

Motorola makes a last attempt to wiggle out from under 

Illinois Brick by arguing that there should be an exception to 

the indirect-purchaser doctrine for any case in which applying the doctrine would prevent any American company 

from suing. But Motorola insists that it dictates the price at 

which it buys cellphones from its subsidiaries, and it would 

be odd to think that Motorola could obtain antitrust damages on the basis of its own pricing decisions.

In any event Motorola waived in the district court any 

argument that it could base damages on the effect of the cartel’s pricing of components on the cost to Motorola of cellphones incorporating those components. It argued only that 

its foreign subsidiaries overpaid for the LCD panels. How 

the overcharge may have affected Motorola’s cellphone

business because of the component price fixing was a path 

that Motorola stepped off of after the pleadings. Its complaint

alleged that it paid more for cellphones that it purchased 

from its subsidiaries, but it then dropped the point in favor 

of arguing (as it did for example in a brief opposing summary judgment) that “this ‘effect’—the approval of a single, 

artificially-inflated LCD panel price in the United States—

proximately caused all of Motorola’s damages, because that 

same artificially-inflated price applied wherever and whenever a Motorola facility placed a purchase order and paid for 

a panel.” But Motorola’s damages expert, Bernheim, discussed only the damages that Motorola’s foreign subsidiaries incurred from having to overpay for LCD panels. He 

made no attempt to estimate the increase in the price paid by 

Motorola for finished cellphones. Motorola even refused to 

respond to one of the defendants’ requests for an admission

by saying: “Motorola is not basing its claims on the purchase 

of finished LCD Products [i.e., cellphones].”
16 No. 14-8003

There is still more that is wrong with Motorola’s case. 

Nothing is more common nowadays than for products imported to the United States to include components that the 

producers bought from foreign manufacturers. See Gregory 

Tassey, “Competing in Advanced Manufacturing: The Need 

for Improved Growth Models and Policies,” Journal of Economic Perspectives, vol. 28, no. 1, Winter 2014, p. 27, 31–35; 

Dick K. Nanto, “Globalized Supply Chains and U.S. Policy,”

Congressional Research Service (Jan. 27, 2010), http://assets.

opencrs.com/rpts/R40167_20100127.pdf. Even Motorola

acknowledges “that a substantial percentage of U.S. manufacturers utilize global supply chains and foreign subsidiaries to effectively compete in the global economy.” Some of 

those foreign manufacturers are located in countries that do 

not have or, more commonly, do not enforce antitrust laws

consistently or uniformly, or whose antitrust laws are more 

lenient than ours, especially when it comes to remedies, notably punitive damages (such as the treble-damages antitrust 

remedy authorized by section 4 of the Clayton Act, 15 U.S.C. 

§ 15). As a result, the prices of many products exported to 

the United States doubtless are elevated to some extent by 

price fixing or other anticompetitive acts that would be punished in proceedings under the Sherman Act if committed in 

the United States. Motorola argues that “the district court’s 

ruling would allow foreign cartelists to come to the United 

States” and “unfairly overcharge U.S. manufacturers.” Not 

true; the defendants did not sell in the United States and, if 

they were overcharging, they were overcharging other foreign manufacturers—the Motorola subsidiaries.

The Supreme Court has warned that rampant extraterritorial application of U.S. law “creates a serious risk of interference with a foreign nation’s ability independently to regu-
No. 14-8003 17

late its own commercial affairs.” F. Hoffmann-La Roche Ltd. v. 

Empagran S.A., supra, 542 U.S. at 165. The Foreign Trade Antitrust Improvements Act has been interpreted to prevent 

such “unreasonable interference with the sovereign authority of other nations.” Id. at 164. The position for which 

Motorola contends would if adopted enormously increase 

the global reach of the Sherman Act, creating friction with 

many foreign countries and “resent[ment at] the apparent 

effort of the United States to act as the world’s competition 

police officer,” a primary concern motivating the Foreign 

Trade Antitrust Improvements Act. United Phosphorus, Ltd. v. 

Angus Chemical Co., 322 F.3d 942, 960–62 (7th Cir. 2003) (en 

banc) (dissenting opinion), overruled on other grounds by 

Minn-Chem, Inc. v. Agrium, Inc., supra. It is a concern to 

which Motorola is—albeit for understandable financial reasons—oblivious.

Motorola’s foreign subsidiaries were injured in foreign 

commerce—in dealings with other foreign companies—and 

to give Motorola rights to take the place of its foreign companies and sue on their behalf under U.S. antitrust law 

would be an unjustified interference with the right of foreign 

nations to regulate their own economies. The foreign subsidiaries can sue under foreign law—are we to presume the inadequacy of the antitrust laws of our foreign allies? Would 

such a presumption be consistent with international comity, 

or more concretely with good relations with allied nations in 

a world in turmoil? To quote from the Empagran opinion 

again, “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 signifi-
18 No. 14-8003

cant part by Canadian or British or Japanese or other foreign 

companies?” 542 U.S. at 165.

So Motorola’s suit has no merit, but it remains to note the 

amicus curiae brief filed by the Justice Department with endorsements by officials from the FTC, the State Department, 

and the Department of Commerce. Although an earlier such 

brief had urged us to vacate our original decision (which we 

did), and we assumed the Department wanted us to reverse 

the district court’s grant of partial summary judgment in favor of the defendants, there is no such contention in its present brief. It asks us only to “hold that the conspiracy to fix 

the price of LCD panels had a direct, substantial, and reasonably foreseeable effect on U.S. import and domestic 

commerce in cellphones incorporating these panels.” The 

brief argues that the criminal and injunctive provisions of 

the Sherman Act, which of course are provisions that the Justice Department enforces, are applicable to the conduct of 

the defendants. The brief is less than sanguine on whether 

Motorola can obtain damages. The indirect-purchaser doctrine is applicable only to damages suits, and the brief disclaims taking any position on the applicability of the doctrine to this case. It goes so far as to say that “permitting 

Motorola to recover on all its claims because it purchased 

some panels in import commerce would allow recovery for 

independently caused foreign injuries on the basis of happenstance.”

All that the government wants from us is a disclaimer 

that a ruling against Motorola would interfere with criminal 

and injunctive remedies sought by the government against 

antitrust violations by foreign companies. The government’s 

concern relates to the requirement of the Foreign Trade Anti-
No. 14-8003 19

trust Improvements Act that foreign anticompetitive conduct have a direct, substantial, and reasonably foreseeable 

effect on domestic U.S. commerce to be actionable under the 

Sherman Act. If price fixing by the component manufacturers had the requisite statutory effect on cellphone prices in 

the United States, the Act would not block the Department 

of Justice from seeking criminal or injunctive remedies. Indeed, we noted earlier that the Department successfully 

prosecuted AU Optronics for criminal price-fixing of the 

LCD panels sold to Motorola’s foreign subsidiaries. But the 

Department does not suggest that the defendants’ conduct 

gave rise to an antitrust damages remedy for Motorola.

Motorola has lost its best friend.

That’s something of a surprise but a bigger surprise, given that representatives of the State and Commerce Departments have signed on to the Justice Department’s brief, is the

absence of any but glancing references to the concerns that 

our foreign allies have expressed with rampant extraterritorial enforcement of our antitrust laws. We asked the government’s lawyer at the oral argument about those concerns, 

and he replied that the Justice Department has worked out a 

modus vivendi with foreign countries regarding the Department’s antitrust proceedings against foreign companies. 

We have no reason to doubt this. Again private damages actions went unmentioned.

The United States has entered into bilateral cooperation 

agreements with the European Union, and with Canada and 

other countries. See U.S. Dept. of Justice, “Antitrust Cooperation Agreements,” www.justice.gov/atr/public/internatio

nal/int-arrangements.html (visited Jan. 9, 2015). Both the Justice Department and the Federal Trade Commission now 
20 No. 14-8003

work with their foreign counterparts in major antitrust cases. 

No longer is the United States “the world's competition policeman,” as it used to be called, because other nations have 

stricter antitrust laws, in some respects, than ours. 

Motorola’s inability to mount the kind of private antitrust 

suit that it is attempting in this case does not foredoom the 

use of antitrust law to prevent and punish the kind of foreign cartelization harmful to Motorola’s subsidiaries. The 

Justice Department, at least, seems confident that effective 

governmental remedies remain—and, as mentioned, the Department was successful in its criminal prosecution against 

AU Optronics for conduct that Motorola seeks, improperly 

as we believe, to recover damages for in this case.

Of course Motorola wants damages for its subsidiaries, 

rather than just a cessation of the cartel activities that are 

hurting them. And foreign antitrust laws rarely authorize 

private damages actions. But as we said earlier, that’s just to 

say that Motorola is asserting a right to forum shop; that if 

some foreign country in which one of its subsidiaries operates happened to provide a more generous private damages 

remedy than American antitrust law provides, Motorola 

would direct that subsidiary to seek that remedy in that 

country.

A recent article about Motorola’s suit notes the problems 

with private antitrust suits of this kind. It points out that 

“virtually every product sold in the United States has some 

foreign-made component,” implying an enormous potential 

for suits of this character should Motorola prevail, and noting too that “the U.S. government has reason to weigh comity and sovereignty concerns when bringing international 

component cartel case[s],” but “private plaintiffs do not.” 
No. 14-8003 21

Robert Connolly, “Motorola Mobility and the FTAIA,” Cartel 

Capers (Sept. 30, 2014), http://cartelcapers.com/blog/motorola

blog/motorola-mobility-ftaia (visited Jan. 9, 2015). And 

Motorola has “only” 10 foreign subsidiaries. General Motors 

has 26. Walmart has 27. Exxon has 122. The mind boggles at 

the thought of the number of antitrust suits that major 

American corporations could file against the multitudinous 

suppliers of their prolific foreign subsidiaries if Motorola 

had its way. Given the further complications introduced by 

the Illinois Brick doctrine, limited however to damages suits, 

there is much to be said for the approach—skeptical of 

Motorola’s suit but emphatic in asserting the government’s 

power to obtain relief through criminal and injunctive actions without ruffling our allies’ feathers—argued by Connolly and the government’s amicus curiae brief.

Connolly amplifies his analysis in another recent article, 

“Repeal the FTAIA! (Or at Least Consider It as Coextensive 

with Hartford Fire),” CPI Antitrust Chronicle (Sept. 2014), 

www.competitionpolicyinternational.com/repeal-the-ftaiaor-at-least-consider-it-as-coextensive-with-hartford-fire/. As 

is apparent from the title, the article ranges far beyond the 

issues in our case. But the article does discuss the case at 

some length, offering (at pp. 3–7) a number of pertinent observations, particularly concerning the differences between a 

private damages suit and a government suit seeking criminal or injunctive remedies:

As the government notes in its amicus filings, there is a 

difference between actions brought by the DOJ and private 

class action damages. Motorola Mobility can be decided in 

such [a] way as to recognize these differences. The court 

can find jurisdiction under the FTAIA for DOJ prosecutions while addressing the concerns raised by China, Japan, Korea, and Taiwan about an unduly expansive appli-
22 No. 14-8003

cation of U.S. law [that] they claim would undermine principles of international comity. ... Finding jurisdiction for 

the United States to prosecute component price-fixing 

need not ignore the international comity concerns of foreign governments. No nation has objected to the DOJ’s 

successful prosecution of foreign companies and even citizens of that country in the LCD panel investigation. As the 

United States notes in its brief, the DOJ seriously considers 

the views of foreign nations before bringing cases. ... [T]he 

comity considerations with private plaintiffs are quite different. “[P]rivate plaintiffs ... often are unwilling to exercise the degree of self-restraint and consideration of foreign governmental sensibilities generally exercised by the 

U.S. Government.” [citing F. Hoffmann-La Roche Ltd. v. Empagran S.A., supra, 542 U.S. at 171, quoting Joseph P. Griffin, “Extraterritoriality in U.S. and EU Antitrust Enforcement,” 67 Antitrust L.J. 159, 194 (1999)] ...

It is fair to require foreign subsidiaries of American 

companies to seek remedy in the courts of the country in 

which they choose to incorporate. Companies operate 

overseas facilities to take advantage of many legal provisions of that country: labor law, environmental law, and 

tax law. In non-legal terms: “You take the good with the 

bad.” By contrast, American consumers have no realistic 

choice but to buy finished goods that are assembled from 

components sold and assembled around the world. Therefore, the antitrust laws should be read—where possible—

to allow governmental enforcement against international 

cartels that were meant to have, and have had, a substantial effect[] on domestic commerce. ... A foreign subsidiar[y’s] position is more akin to an American citizen living 

overseas who buys price-fixed goods but then must seek 

any remedies under the laws [of the] country she has chosen to live in. ...

Domestic corporate purchasers are not without remedy when buying component parts from foreign vendors. 

First, the U.S. parent could buy directly from the foreign 

vendor and preserve the right to sue as a direct purchaser 

(while trading off the benefits the company gained from 

operating through a foreign subsidiary). Or, if a U.S. parent doesn’t think that antitrust laws are sufficiently, or fairly, enforced in a given country, they certainly don’t have to 

set up a subsidiary there. ... So, an adverse ruling in 
No. 14-8003 23

Motorola would not eliminate every avenue of damage redress for component price-fixing. ... The Motorola Mobility 

court should reach a decision that preserves the ability of 

the DOJ to protect American consumers and continue to 

lead the way in prosecuting international cartels—

including appropriate component cartels. The court could 

also acknowledge the comity concerns of foreign nations 

and find application of Illinois Brick a bar to foreign component civil damage cases.

The district court’s grant of partial summary judgment in

favor of the defendants is

AFFIRMED.