Filed: August 16, 2002

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 01-1894

(CA-98-10-3-MU)

Dee-K Enterprises, etc., et al.,

Plaintiffs - Appellants,

versus

Heveafil Sdn. Bhd., et al.,

Defendants - Appellees.

ORDER

The court amends its opinion filed July 30, 2002, as follows:

On page 3, section 1, line 2 -- the name “J. Mark Gidley” is

added to the list of appellees’ counsel.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED PUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

 

DEE-K ENTERPRISES, INCORPORATED, a

corporation of the Commonwealth

of Virginia; ASHEBORO ELASTICS

CORPORATION, a corporation of the

state of North Carolina, on behalf

of themselves and all others

similarly situated,

 Plaintiffs-Appellants,

 v.

HEVEAFIL Sdn. Bhd; FILMAX Sdn.

Bhd; RUBFIL Sdn. Bhd; FILATI

LASTEX Sdn. Bhd, corporations of

Malaysia; RUBFIL USA,

INCORPORATED, a corporation of the

State of North Carolina, No. 01-1894 

 Defendants-Appellees,

 and

RUBBERFLEX Sdn. Bhd; FILATI

LASTEX ELASTOFIBRE USA,

INCORPORATED, a corporation of

Rhode Island; FLEXFIL

CORPORATION OF RHODE ISLAND, a

corporation registered to do

business in North Carolina; FLEXFIL

CORPORATION, a corporation of the

state of North Carolina; Pt BAKRIE

RUBBER INDUSTRIES; Pt PERKEBUNAN

III, corporations of Indonesia;

NATURAL RUBBER THREAD COMPANY,

 
 

LIMITED; LONGTEX RUBBER

INDUSTRIES COMPANY, LIMITED,

corporations of Thailand;

CONSORTIUM INTERNATIONAL

CORPORATION, a corporation of the

state of Texas; JPS ELASTOMERICS

CORPORATION, a corporation of the

state of Delaware,

 Defendants.

 

Appeal from the United States District Court 

 

for the Western District of North Carolina, at Charlotte. 

 

Graham C. Mullen, Chief District Judge. 

 

(CA-98-10-3-MU) 

Argued: May 7, 2002 

Decided: July 30, 2002 

Before WILKINS and MOTZ, Circuit Judges, and 

 

James H. MICHAEL, Jr., Senior United States District Judge 

 

for the Western District of Virginia, sitting by designation. 

 

____________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in

which Judge Wilkins and Senior Judge Michael joined.

____________________________________________________________

COUNSEL 

ARGUED: Joel Davidow, MILLER & CHEVALIER, CHAR- ARGUED:

TERED, Washington, D.C., for Appellants. Christopher M. Curran,

WHITE & CASE, L.L.P., Washington, D.C., for Appellees. ON

BRIEF: Alan I. Horowitz, Michael T. Brady, MILLER & CHEVA- BRIEF:

LIER, CHARTERED, Washington, D.C.; William T. Rikard, Jr.,

PARKER, POE, ADAMS & BERNSTEIN, L.L.P., Charlotte, North

2 
Carolina; Daniel Small, Mary Strimel, COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C., Washington, D.C., for Appellants. J. Mark Gidley, Jaime 

M. Crowe, Eric Grannon, WHITE & CASE, L.L.P., Washington,

D.C., for Appellees.

____________________________________________________________

OPINION 

DIANA GRIBBON MOTZ, Circuit Judge:

 Two United States companies that purchase rubber thread brought

this private antitrust action, alleging a price-fixing conspiracy led by

Southeast Asian producers of the thread. After an eight-day trial, the

jury returned a special verdict, finding that although one or more of

the producers engaged in a conspiracy to fix prices that was intended

to affect United States commerce, that conspiracy had no "substantial

effect" on this country's commerce. The district court then entered

judgment on the verdict for the producers. The purchasers appeal,

principally contending that the substantial-effect test applies only to

"wholly" foreign conduct, and so does not govern this case because

the rubber-thread conspiracy resulted in the sale of price-fixed goods

directly into the United States. Because the conspiracy involved primarily foreign conduct, we hold that the district court did not abuse

its discretion in applying the substantial-effect test. Accordingly, we

affirm.

I. 

 In 1997, Dee-K Enterprises, Incorporated, and Asheboro Elastics

Corporation (collectively Dee-K), United States corporations that purchase rubber thread to make elastic fabric, brought this class action,

alleging a conspiracy to fix the price of rubber thread in the United

States, in violation of the Sherman Act. See 15 U.S.C.A. § 1 (West

1997). Rubber thread, also called extruded rubber thread or elastic

rubber thread, and sometimes abbreviated as "ERT," is manufactured

in Southeast Asia and used to make elastic fabric, bungee cords, toys,

and other products.

 Dee-K named as defendants nine Southeast Asian producers of

rubber thread and some of their subsidiaries and distributors in the

3 
United States. Five of the producers are Malaysian companies:

Heveafil Sendirian Berhad, Filmax Sendirian Berhad, Rubfil

Sendirian Berhad, Rubberflex Sendirian Berhad, and Filati Lastex

Sendirian Berhad. (The suffix "Sendirian Berhad," used in Malaysia

and abbreviated "Sdn. Bhd.," translates as "private limited company.") Two are Indonesian: PT. Bakrie Rubber Industries and PT.

Perkebunan III. Two are Thai: Longtex Rubber Industries Company,

Limited, and Natural Rubber Thread Company, Limited. Dee-K also

named as defendants the United States subsidiaries of three Malaysian

producers (Rubfil USA, Incorporated, Flexfil Corporation of Rhode

Island, Flexfil Corporation, and Filati Lastex Elastofibre USA, Incorporated) and two United States independent distributors used by other

producers (Consortium International and JPS Elastomerics).

 In its complaint, Dee-K alleged that the members of the class it

sought to represent, domestic purchasers of rubber thread, paid "artificially high and non-competitive prices" for rubber thread, that they

"were deprived of free and open competition in the market" for rubber

thread, and that "competition among defendants" in the United States

sale of rubber thread "was restrained." As to injury, Dee-K contended

that "plaintiffs . . . purchased substantial quantities of extruded rubber

thread from defendants."

 Dee-K originally filed this action in the Eastern District of Virginia. Following a number of early rulings not relevant to our disposition of this appeal, the district court determined that venue did not lie

in Virginia and transferred the case to the Western District of North

Carolina. See Dee-K Enters. v. Heveafil Sdn. Bhd., 985 F. Supp. 640

(E.D. Va. 1997). Prior to trial, that court denied class certification.

After most defendants settled, declined to appear, or were dismissed,

the case against the five Malaysian producers and the United States

subsidiary of one of them (Rubfil USA), none of whom now contest

personal jurisdiction, see Dee-K Enters. v. Heveafil Sdn. Bhd., 174

F.R.D. 376 (E.D. Va. 1997), proceeded to trial before a jury.

 Dee-K introduced substantial evidence at trial of horizontal price

fixing among the producers. This price fixing apparently originated at

least in part in reaction to 1991 threats by the United States government to punish Southeast Asian rubber-thread producers for violating

antitrust prohibitions against "dumping." "Dumping" occurs when a

4 
foreign producer injures a United States producer by selling a product

in the United States at less than what would be "fair value" in the foreign producer's home market. See 19 U.S.C.A. § 1673 (West 1999)

(authorizing an "antidumping duty"). The United States Department

of Commerce may impose tariffs on dumpers to bring the United

States price into line with the price in the producer's home market.

See id. Thus, if a product sells for $1 in the home market, it warrants

dumping duties if it sells for less than $1 in the United States. Of

course, avoidance of dumping penalties in itself does not provide foreign producers with a license to fix prices in violation of United

States antitrust laws. Although to avoid dumping a company must

price goods at or above the price in its own home market, it may not

agree with its competitors to fix prices, restricting the market movement of prices in the United States market. See Dee-K Enters. v.

Heveafil Sdn. Bhd., 982 F. Supp. 1138, 1156 & n.45 (E.D. Va. 1997);

see also United States v. Nippon Paper Indus., 62 F. Supp. 2d 173,

180 (D. Mass. 1999) (noting that foreign companies threatened with

anti-dumping provisions must "walk a fine line").

 In December 1991, responding to the dumping accusations, officials of the Malaysian producers representing Heveafil, Rubfil, Rubberflex, and Filati Lastex met with a Malaysian government official

and agreed to fix rubber-thread prices throughout the world. Later

joined by other rubber-thread producers from Malaysia, Indonesia,

and Thailand, they continued to meet for several years, at conventions

and in other settings, to discuss and implement these and other efforts

to fix prices. They met regularly between 1992 and 1995 — in Kuala

Lumpur, in Columbo, in Bali, and in Penang. They never met in the

United States.

 Throughout the period during which they met to fix prices, the

Malaysian producers sold their rubber thread around the world, distributing it to the United States market in three different ways. Heveafil and Filmax sold to the United States through a division of Heveafil

based in the United States. Rubfil, Rubberflex, and Filati Lastex all

sold to large United States customers directly and to smaller customers through wholly owned subsidiaries incorporated in the United

States, all four of which were named as defendants. See Dee-K, 982

F. Supp. at 1142. The record does not disclose the United States share

of the global market.

5 
 From 1991 to 1996, United States prices for rubber thread

(adjusted for inflation using the producer price index) generally rose,

with some decreases on various scales. Dee-K attributes these

increases to the price-fixing conspiracy. The producers attribute them

to an antidumping order entered by the United States Department of

Commerce in 1992 that imposed a duty on rubber thread and to

increases in the price of raw materials, particularly the price of latex.

 At the conclusion of an eight-day trial, the district court submitted

a special verdict form to the jury. The verdict form included two

questions: (1) Was there "a conspiracy . . . to fix the prices of

extruded rubber thread, which was intended to have a substantial

effect in the United States"? (2) If so, did "the conspiracy have a substantial effect in the United States"?

 The jury answered the first question in the affirmative, finding a

conspiracy to fix prices with the intent of affecting the United States.

But the jury answered the second question in the negative, finding

that the conspiracy did not have a substantial effect in the United

States. In accordance with this verdict, the court entered judgment for

the producers.

 Dee-K moved for a new trial pursuant to Rule 59, arguing that the

jury's verdict as to the lack of a substantial effect on United States

commerce was contrary to the weight of the evidence. The district

court denied the motion and simultaneously denied a late-filed Rule

50 motion for judgment as a matter of law on the substantial-effect

question. Dee-K appeals, contending that the substantial-effect test (at

least as stated in the jury instructions and special verdict) does not

govern this case.1

____________________________________________________________

 1

 Dee-K does not appeal the denial of its Rule 50 motion. It does, however, appeal the denial of its motion for a new trial, asserting that the

jury's finding of no substantial effect was against the weight of the evidence. In fact, the producers provided the jury with a good deal of evidence supporting the challenged finding, including evidence that

increased latex prices or antidumping duties, or both, accounted for

rubber-thread price increases. Given these alternatives, nothing about this

case presents the "exceptional circumstances" that might lead us to conclude that the verdict was against the weight of the evidence. See Bristol

6 
II. 

 In Hartford Fire Insurance Co. v. California, the Supreme Court

noted that "it is well established 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." 509 U.S. 764, 796 (1993)

(citations omitted).

 Dee-K argues that this statement in Hartford Fire does not govern

the case at hand, primarily because the price-fixing conspiracy it

proved does not constitute "foreign conduct." Dee-K contends that

instead the jurisdictional test used in domestic antitrust cases controls

here; in domestic cases a plaintiff need only demonstrate "that the

defendant's activity is itself in interstate commerce, or . . . that it has

an effect on some other appreciable activity demonstrably in interstate

commerce." See McLain v. Real Estate Bd. of New Orleans, 444 U.S.

232, 242 (1980) (emphasis added and citation omitted). Accordingly,

Dee-K asserts that the district court abused its discretion by applying

the substantial-effect test from Hartford Fire. See Nelson v. Green

Ford, Inc., 788 F.2d 205, 208-09 (4th Cir. 1986) (noting that we

review jury instructions for abuse of discretion); Tights, Inc. v. AcmeMcCrary Corp., 541 F.2d 1047, 1060 (4th Cir. 1976) (noting that we

review special verdict interrogatories for abuse of discretion).

 The producers respond that Hartford Fire is "analytically indistinguishable" from Dee-K's case. Thus, they maintain that the district

court correctly applied Hartford Fire when it required Dee-K to show

a "substantial effect in the United States" before concluding that "the

Sherman Act applies" to the "foreign conduct" that Dee-K alleged.

 The mixture of foreign and domestic elements in this case makes

its analysis challenging; either an entirely foreign or an entirely

domestic conspiracy would present a comparatively easy jurisdictional question. If the conspiracy had involved participants with

____________________________________________________________

Steel & Iron Works, Inc. v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th

Cir. 1994) (citation omitted); see also Poynter v. Ratcliff, 874 F.2d 219,

223 (4th Cir. 1989); see generally 11 Charles Alan Wright et al., Federal

Practice and Procedure § 2819 (2d ed. 1995 & Supp. 2002).

7 
United States affiliations, acting only in the United States, and targeting a United States market, the jurisdiction of United States courts

would be clear, without any proof of effect.2

 At the other extreme, if

everything about the conspiracy were foreign — if it were a conspiracy formed in Southeast Asia, by Southeast Asian persons and corporations, intended to affect only Southeast Asian markets, and affecting

only those markets — the Sherman Act would not provide a United

States court any jurisdiction to address it. See Matsushita Elec. Indus.

v. Zenith Radio Corp., 475 U.S. 574, 582 (1986) ("American antitrust

laws do not regulate the competitive conditions of other nations'

economies.").

 We earn our keep, of course, in the middle ground between such

extremes — in cases such as this. Dee-K alleged (and proved to the

jury) a largely foreign conspiracy with some domestic elements,

aimed at a global market including, but certainly not limited to, a

United States import market. Indeed, the conspiracy mixed foreign

and domestic elements in several respects: it included many participants with foreign affiliations but a few who also had United States

affiliations; acts that range from a series of conspiratorial meetings,

____________________________________________________________

 2

 We recognize that the Ninth Circuit has suggested that the foreignconduct question affects the substantive analysis of a particular offense

under the antitrust laws. See Metro Indus. v. Sammi Corp., 82 F.3d 839,

844-45 (9th Cir. 1996). Although market effect of course has its place in

substantive antitrust analysis, we follow the Supreme Court and Congress in treating allegations that an antitrust case involves only foreign

conduct as raising a jurisdictional issue. See 15 U.S.C.A. § 6a (West

1997) (addressing the presence of certain types of foreign conduct in an

antitrust case by providing that the Sherman Act does not apply to such

cases at all); Hartford Fire, 509 U.S. at 795-96; see also Restatement

(Third) of the Foreign Relations Law of the United States § 415, reporter's note 3 (1987) ("[A]ccurate analysis distinguishes between the

requirement of sufficient effect on commerce of the United States to support application of United States law, and the requirement of sufficient

injury or anticompetitive effect to establish liability."); Wilbur L. Fugate,

Foreign Commerce and the Antitrust Laws § 2.14 at 16 (Supp. 2002)

(criticizing the Metro Industries court on this point); IA Philip Areeda &

Herbert Hovenkamp, Antitrust Law § 273 (2d ed. 2000) ("[W]e emphasize that `jurisdictional' and `substantive' inquiries are not wholly independent.").

8 
all held abroad, to routine communications, a few with the United

States; and a target market embracing dozens of nations including the

United States. This sort of mixed fact pattern will probably become

increasingly familiar as global economic links and assertions of transnational jurisdiction increase. See generally Kenneth W. Dam, Extraterritoriality in an Age of Globalization: The Hartford Fire Case,

1993 Sup. Ct. Rev. 289, 290-92. But this is one of the few cases to

date that involves an import market and presents such a mixed fact

pattern, and neither the statutory scheme nor the case law provides

clear guidance.

 Although the Supreme Court noted in Hartford Fire, 509 U.S. at

796, that the substantial-effect test applies to "foreign conduct," no

antitrust statute defines "foreign conduct." Nor does any statute

explicitly address any aspect of a case involving the effect of foreign

conduct on United States import commerce, like that at issue here.

 To be sure, Congress legislated in this area relatively recently,

establishing a threshold jurisdictional standard for "conduct involving

trade or commerce (other than import trade or import commerce) with

foreign nations." Foreign Trade Antitrust Improvements Act (FTAIA)

of 1982 § 402, Pub. L. 97-290, 96 Stat. 1246 (codified at 15 U.S.C.A.

§ 6a). According to that statutory standard, United States antitrust

laws do not apply to such conduct unless it has "a direct, substantial

and reasonably foreseeable effect" on United States commerce. Id.

Because this case involves importation of foreign-made goods, however — conduct Congress expressly exempted from FTAIA coverage

as "involving . . . import trade or import commerce . . . with foreign

nations," id. — the FTAIA standard obviously does not directly govern this case, even though it may constitute an effort to "clarify the

application of United States antitrust laws to foreign conduct" in other

circumstances.3 See Den Norske Stats Oljeselskap AS v. Heeremac

Vof, 241 F.3d 420, 421 (5th Cir. 2001); Hartford Fire, 509 U.S. at

796 n.23 (refusing to decide whether the FTAIA applies to the conduct alleged, an agreement between foreign and United States participants, formed abroad, to refuse to sell a service to United States

consumers); see also id. (refusing to decide whether the FTAIA's "di-

____________________________________________________________

 3 Not even the producers suggest that we should, by analogy or otherwise, borrow the FTAIA standard in this import case.

9 
rect, substantial, and reasonably foreseeable effect" provision

"amends existing law or merely codifies it"); Kruman v. Christie's

Int'l P.L.C., 284 F.3d 384, 399 n.5 (2d Cir. 2002) (same). Nor do we

find any guidance in the FTAIA as to what constitutes "foreign conduct."

 We thus must rely on case law, which provides some, albeit limited, assistance. Only a few cases give any hint of how to decide

whether conduct is foreign.

 In cases that date from the early twentieth century, silence on this

point is hardly surprising, because the Supreme Court then rejected

any exercise of jurisdiction based only on acts committed abroad, on

the theory that the law of the country where an act occurred should

govern it. See American Banana Co. v. United Fruit Co., 213 U.S.

347, 356 (1909); IA Areeda & Hovenkamp § 272b at 350-51 (describing post-American Banana Supreme Court cases in which jurisdiction

depended on finding "actions within the United States").

 In 1945, a leading opinion by Judge Learned Hand, which the

Supreme Court later endorsed, displaced this approach based on the

location of the conduct, and shifted attention to the location of the

conduct's actual or intended effect. See United States v. Aluminum

Co. (Alcoa), 148 F.2d 416 (2d Cir. 1945); IA Areeda & Hovenkamp

§ 272c; I Wilbur L. Fugate, Foreign Commerce and the Antitrust

Laws § 2.10 at 68-69 (5th ed. 1996). The case, Alcoa, thus introduced

a predecessor of Hartford Fire's effects test. Although Alcoa

refocused the jurisdictional analysis on the location of the effects of

alleged violations of the antitrust laws, it did not eliminate the location of the conduct from the inquiry entirely, since its test applied

only to cases involving foreign conduct.4 See, e.g., Kruman, 284 F.3d

____________________________________________________________

 4 After Alcoa as before, a wholly domestic antitrust case does not necessarily require any proof of an effect on commerce. See, e.g., Fed.

Trade Comm'n v. Superior Ct. Trial Lawyers Ass'n, 493 U.S. 411, 432-

36 (1990) (expounding on the rationale for per se antitrust rules that

create a presumption of effect in many cases); McLain, 444 U.S. at 242

(explaining that antitrust jurisdictional requirements in a domestic case

may be satisfied by a showing that "the defendants' activity" of any magnitude "is itself in interstate commerce").

10 
at 393-94 ("Under [Alcoa's] . . .`effects test,' foreign conduct was

actionable under our antitrust laws if it was intended to affect domestic commerce and actually did so." (emphasis added)). Yet Alcoa does

not discuss how to assess whether conduct is "foreign," rather than

domestic and therefore subject to McLain's test.

 In the decades after Alcoa, courts and commentators analyzed not

how to assess whether conduct is foreign, but how to interpret and

apply Alcoa's effects test. They disagreed as to whether antitrust

jurisdiction over foreign conduct requires both "an effect" on United

States commerce and an "intent to affect United States commerce," or

just effect or just intent, and as to the magnitude of any effect. See,

e.g., Matsushita, 475 U.S. at 582 n.6 (characterizing the Sherman Act

as "reach[ing] conduct outside our borders, but only when the conduct

has an effect on American commerce") (emphasis added)); Restatement (Third) of Foreign Relations Law § 415 (concluding that the

Sherman Act applies to a foreign-made agreement with "a principal

purpose . . . to interfere with the commerce of the United States" and

"some effect on that commerce" and to other foreign-made agreements with a "substantial effect" on United States commerce if "the

exercise of jurisdiction is not unreasonable"); Fugate § 2.12 at 82

(proposing "the `direct and substantial' [effect] test, plus an element

of intent" where "U.S. jurisdiction is based upon acts or agreements

abroad which are not in the flow of foreign commerce" (emphasis

omitted)); id. § 2.5 at 56, § 2.8 at 62 (suggesting and citing authority

for a requirement of a "substantial effect"); IA Areeda & Hovenkamp

§ 272a at 350, § 272f at 354 (describing a minimal requirement of

"significant effects"); see also Den Norske Stats Oljeselskap, 241

F.3d at 423-24 & n.12 (describing the "general [ ] disagree[ment],"

"assorted tests," and "confusing and unsettled" federal case law governing "the extraterritorial reach of the antitrust laws" before (and

after) Hartford Fire). In promulgating these variants on the effects

test, however, the authorities do not explore how to define "foreign

conduct" in deciding whether to apply an effects test at all.

 Although Hartford Fire itself does not discuss how to define "foreign conduct" either, it gives us some guidance by characterizing certain conduct as foreign. The complaint in Hartford Fire alleged

multiple, partially overlapping conspiracies among reinsurers and

their insurers (that is, insurers of reinsurers, also known as providers

11 
of retrocessional insurance) to limit the kinds of policies written for

general corporate coverage in the United States market. See 509 U.S.

at 770-78. Three counts specifically alleged that companies in London

agreed among themselves to refuse to reinsure policies covering the

United States market unless the policies contained certain restrictions

on liability. Two of these alleged conspiracies involved only international participants, see id. at 776, 778 & n.7, but one involved both

international and United States participants. See id. at 775-77.

 It was in its discussion of these three counts that the Hartford Fire

Court stated that "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." 509 U.S. at 796.

The Court thus plainly characterized the three counts it was then considering (including the count involving conspirators based in the

United States) as "foreign conduct," but did not further define the

term. The Court did not explain whether or how it had weighed the

national affiliation or affiliations of the violators, the location of their

acts, the location of the target market, or some combination of these

factors in determining that the counts involved "foreign conduct."5

____________________________________________________________

 5

 Nor, as Dee-K notes, did the Court resolve whether the Sherman Act

might also apply to foreign conduct (however defined) that meets some

lesser standard — that is, whether intent alone, substantial effect alone,

or some "effect" less than "substantial" coupled with intent might suffice.

Instead, the Court stated that the Sherman Act does apply to foreign conduct when intent and substantial effect exist, without explicitly excluding

the possibility of jurisdiction in other circumstances. 509 U.S. at 796; see

also IA Areeda & Hovenkamp § 273. (Indeed, the parties presented no

jurisdictional issue to the Court in Hartford Fire; rather, the defendant

reinsurers "concede[d]" jurisdiction, but contended that "the District

Court should have declined to exercise such jurisdiction under the principle of international comity." 509 U.S. at 795-97.)

 However, we need not decide whether the Hartford Fire formulation

is the only test for jurisdiction in antitrust cases involving foreign conduct, because Dee-K has waived this argument by failing to pursue it in

the district court. Dee-K now contends that the district court should have

applied a test drawn from the Restatement (Third) of Foreign Relations

Law § 415(2), permitting a lesser effects test if the intent to affect the

United States was a "principal purpose" of the conduct — but Dee-K

never so much as mentioned a "principal purpose" requirement in the district court, nor objected to the jury instructions or special verdict form on

this basis. Never having proposed its theory or alternative test to the district court, Dee-K cannot prevail on this argument on appeal.

12 
III. 

 Dee-K seeks to rely on the Hartford Fire Court's silence on these

issues to argue that it need not satisfy the substantial-effect test

described in Hartford Fire. Specifically, Dee-K maintains that, even

if the Hartford Fire statement does set forth minimal requirements for

antitrust jurisdiction over foreign conduct, those requirements govern

only antitrust violations involving "wholly" foreign conduct — and

do not govern foreign conspiracies that result in the sale of price-fixed

goods directly into United States commerce. Meanwhile, the producers argue that Hartford Fire directly controls here, without acknowledging any distinctions between the two cases. They insist that the

only relevant consideration in assessing whether conduct is foreign is

the location of actual conspiratorial meetings. We ultimately reject

both sides' rigid views of Hartford Fire and apply a more nuanced

analysis.

A. 

 We begin with Dee-K's contention that the standard set forth in

Hartford Fire does not govern this case because the conduct at issue

here is not foreign enough. Dee-K offers two arguments in support of

this contention. Neither is persuasive.

 First, Dee-K relies on the fact that two of our sister circuits have

characterized Hartford Fire as involving "wholly foreign" conduct.

See Carpet Group Int'l v. Oriental Rug Importers Ass'n, 227 F.3d 62,

75 (3d Cir. 2000); United States v. Nippon Paper Indus., 109 F.3d 1,

9 (1st Cir. 1997). Dee-K maintains, in line with this characterization,

that Hartford Fire does not govern a conspiracy like that at hand, with

some domestic elements, including direct sales into the United States

and one or more participants based in the United States (here the

United States subsidiaries and distributors of the producers). Dee-K

does not specify whether it is the nationality of the participants

involved in the alleged antitrust violation, the location of their acts,

the nature of their target market, or some combination of these factors

that must be foreign to render their conduct "wholly foreign."

 The Carpet Group and Nippon Paper courts did not state or suggest the origin of the phrase "wholly foreign." A possible source for

13 
the phrase is the legislative history of the FTAIA, the 1982 statute

that required "a direct, substantial and reasonably foreseeable effect"

on United States commerce for antitrust jurisdiction over conduct

involving non-import foreign commerce. See 15 U.S.C.A. § 6a(1);

H.R. Rep. No. 97-686, at 10 (1982), reprinted in 1982 U.S.C.C.A.N.

2487, 2495. A House Report explained that the FTAIA covers

"wholly foreign transactions as well as export transactions" but not

"import transactions." Id. In the FTAIA's legislative history, then,

"wholly foreign transactions" appear to be those conducted entirely

outside the United States — transactions that have no point of contact

with this country. See also In re Ins. Antitrust Litig., 723 F. Supp.

464, 486 (N.D. Cal. 1989) (characterizing the FTAIA as applicable to

"wholly foreign commerce") (subsequent history, culminating in

Hartford Fire, 509 U.S. 764, omitted). If this legislative history

indeed constitutes the source of the phrase "wholly foreign," the history itself makes plain that the phrase does not apply to cases like

ours, which involve "import transactions." Dee-K derives little benefit, however, from this possible origin of the phrase, because based on

the legislative history, "wholly foreign" cannot be an appropriate

characterization of the transactions at issue in Hartford Fire itself —

which involved a refusal to sell to United States consumers. Thus, if

the FTAIA's legislative history is the source of the term "wholly foreign," a court certainly should not use the term in deciding whether

to apply the Hartford Fire test.

 Carpet Group and Nippon Paper's characterization of Hartford

Fire as involving "wholly foreign" conduct may, however, simply

have been a shorthand description of the case, for in neither Carpet

Group nor Nippon Paper does the holding turn on this characterization or otherwise assist Dee-K. Indeed, the analysis of the Third Circuit in Carpet Group is directly contrary to that suggested by Dee-K.

The Third Circuit did refuse to apply the Hartford Fire test to a conspiracy among United States and foreign entities to protect the role of

distributors in the United States market for imported carpets. However, the Carpet Group court did not simply point to the existence of

some domestic contacts and end its analysis, as Dee-K would have us

do. Rather, before applying the McLain domestic-conduct jurisdictional standard, the Carpet Group court determined that the alleged

conduct "deal[t] primarily with conduct in the United States," because

of the United States location of most participants, several targets of

14 
their pressure, and several of their meetings. 227 F.3d at 64-68, 75.

Thus, looking at participants' affiliations and the locations of both

acts and targets, the court focused on whether the conduct at issue

was "primarily" domestic or foreign, not whether it was "wholly"

domestic or foreign.

 Furthermore, and perhaps most importantly, characterization of a

prior case by a lower court cannot revise or amend the case's language or facts. Hence, even if Carpet Group or Nippon Paper had

held that Hartford Fire controlled only "wholly foreign" conduct, that

could not change the language or facts of Hartford Fire itself. In

Hartford Fire, although the district court had used the term "wholly

foreign" in a related context, see In re Ins. Antitrust Litig., 723 F.

Supp. at 486, the Supreme Court never described the conduct before

it as "wholly" foreign. Moreover, some of the participants in one of

the conspiracies alleged in Hartford Fire were entities based in the

United States, see 509 U.S. at 775, 776, 795, all of the London-based

corporate defendants were "subsidiaries of American corporations,"

and at least one key meeting attended by London-based defendants

occurred in New York City. See In re Ins. Antitrust Litig., 938 F.2d

919, 922-23, 929 (9th Cir. 1991), rev'd on other grounds sub nom.

Hartford Fire, 509 U.S. 764. Thus, Hartford Fire itself severely

undercuts Dee-K's claim that the substantial-effect test applies only

to "wholly" foreign conduct, and Dee-K has shown no other reason

to limit Hartford Fire to such conduct. But see IA Areeda &

Hovenkamp § 272e at 354 (hypothesizing that the Sherman Act might

reach even conduct with "only remote[ ] and insignificant[ ]" effects

on the United States and no intent to affect the United States if

"American firms participate" or "some planning or other conduct"

occurs here).

 Dee-K's other foreign-conduct argument, although reiterated several times, fares no better. Dee-K repeatedly contends that whenever

conspirators "sell price-fixed goods directly into U.S. commerce," the

conspiracy must be regarded as domestic rather than foreign conduct,

because these goods by definition are then "in" United States commerce. This single-factor test — under which even a conspiracy

hatched and planned entirely on foreign soil by foreign entities would

be domestic if it resulted in direct sales of price-fixed goods into a

United States import market — comes perilously close to clear con15 
flict with Hartford Fire. After all, there the Supreme Court characterized as "foreign conduct" a conspiracy to refuse to sell reinsurance

policies directly into United States markets. The Hartford Fire conspiracy had a direct, anticompetitive impact on a United States import

market — just like the direct anticompetitive impact that Dee-K attributes to the rubber-thread price-fixing conspiracy.

 Dee-K apparently hopes to distinguish Hartford Fire simply

because that case concerned a refusal to sell to, rather than a sale to,

purchasers in the United States. We acknowledge that in some circumstances this factual distinction may have significance.6

 When we

consider actual harm to United States consumers, however, we see no

distinction between the impact of refusing to sell and that of fixing

the price of imported goods, both of which may seriously and directly

harm United States consumers. Both situations involve harmful conduct affecting a transaction in which a United States participant takes

place.

 In refusal cases, courts have not hesitated to require antitrust plaintiffs to allege and prove a substantial effect on the United States. In

addition to the Hartford Fire Court itself, the Ninth Circuit required

such proof in a case involving allegations that competitors had

divided up the right to sell directly to United States consumers, even

though market division rings the same alarm bells as price fixing;

indeed, both constitute per se Sherman Act violations. See Metro

Indus., 82 F.3d at 841, 843-44.

 Moreover, given complex global trade patterns of sale, resale, and

distribution, Dee-K's formulation would grant United States courts

jurisdiction over a great variety of foreign conduct. Cf. Den Norske

____________________________________________________________

 6

 The Hartford Fire Court specifically declined to decide whether the

FTAIA governed a refusal to sell a service into the United States, even

though the lower courts had held that the FTAIA did not apply to such

conduct. See In re Ins. Antitrust Litig., 723 F. Supp. at 486, aff'd on this

ground, 938 F.2d at 932, rev'd on other grounds sub nom. Hartford Fire,

509 U.S. at 796 n.23 (taking no position on the applicability of the

FTAIA). Perhaps the Court declined to decide the issue because a refusal

to sell a service into the United States does not`enter' the United States

in some sense, as an import does.

16 
Stats Oljeselskap, 241 F.3d 420 (rejecting the existence of any form

of antitrust jurisdiction over a foreign conspiracy even though it

assertedly indirectly raised prices in a United States import market,

in part because the plaintiff was not a buyer or seller in that market).

For example, in every case involving direct sales to the United States

in which our antitrust laws condemn an activity per se, however foreign the conduct, United States courts would have jurisdiction without

any showing whatsoever of an effect on United States commerce. See,

e.g., Stephen Jay Photography, Ltd. v. Olan Mills, Inc., 903 F.2d 988,

995 (4th Cir. 1990) (noting that explicit horizontal minimum price

fixing is a per se violation of the Sherman Act). Yet the rationale for

per se rules in cases addressing domestic conduct seems plainly "inapplicable to foreign restraints that . . . pose very little danger to

American commerce." IA Areeda & Hovenkamp § 273 at 370-71

(noting that "price fixing in a foreign country might have some but

very little impact on United States commerce," and concluding that

"appraising restraints abroad requires an assessment of effects on

American foreign commerce").

 Perhaps for this reason, courts have consistently required a showing of effect on United States commerce even in cases involving price

fixing on imports. Before Hartford Fire, the Seventh Circuit considered a conspiracy among "twenty domestic and nine foreign corporations. . . to fix the price of uranium in the world market" at meetings

in five foreign countries and the United States. See In re Uranium

Antitrust Litig., 617 F.2d 1248, 1254 (7th Cir. 1980). In that case the

Seventh Circuit applied Alcoa's effects test, although the domestic

participants greatly outnumbered the foreign participants, a meeting

occurred in the United States, and the target market included the

United States. See id. at 1253-54. Similarly, in Nippon Paper, on

which Dee-K heavily relies, the First Circuit had no trouble treating

a criminal conspiracy resulting in price fixing of goods imported into

the United States as "foreign conduct" requiring proof of a substantial

effect on United States commerce. Nippon Paper, 109 F.3d at 2.7

____________________________________________________________

 7

 The Nippon Paper court stated that the Sherman Act treated civil and

criminal jurisdiction alike and then extended criminal jurisdiction by

applying the Hartford Fire test from the civil context. See 109 F.3d at

4-8. Dee-K seeks to distinguish Nippon Paper on the ground that it

17 
 Finally, the Executive Branch has endorsed the view that plaintiffs

alleging antitrust violations affecting imports into a United States

market must still prove a substantial effect on United States commerce. See U.S. Dep't of Justice & Fed. Trade Comm'n, Antitrust

Enforcement Guidelines for International Operations § 3.11 (1995),

available at http://www.usdoj.gov/atr/public/guidelines/internat.htm

(as of July 2, 2002) (advising that "[i]mports into the United States

by definition affect the U.S. domestic market directly" but that they

yet must "produce the requisite substantial effects," while commenting that effects are likely to be "clear" in such a case).

 For these reasons, we reject Dee-K's contention that Hartford Fire

never applies when a conspiracy involves price-fixed goods sold

directly into United States commerce.

B. 

 We likewise reject the producers' equally rigid view as to the

applicability of Hartford Fire. The producers contend that in assessing whether "conduct" is "foreign" (and thus subject to the

substantial-effect, rather than the domestic McLain test), we should

consider only the location of acts that themselves independently violate the Sherman Act. According to the producers, "the Hartford Fire

test . . . is based solely upon the situs of a conspiratorial agreement."

The producers thus turn Dee-K's argument back upon it: even if Hartford Fire does apply just to "wholly foreign conduct," the only rele-

____________________________________________________________

involved goods not directly sold into the United States market by the

price-fixers themselves. However, Dee-K can point to no authority

applying per se condemnation to foreign price fixing simply because the

price fixing was on directly imported goods. Moreover, nothing in Nippon Paper suggests that the corporate layer between the price-fixers and

the United States market protected the price-fixers from full domestic

treatment, i.e., that the case might have been analyzed as domestic conduct if the price-fixing scheme had not been indirect. Indeed, the commentators see Nippon Paper as novel, not because it applied an effects

test as a prerequisite for jurisdiction, but because it asserted jurisdiction

at all in a criminal context. See Fugate § 2.14 at 14, 15 (Supp. 2002); IA

Areeda & Hovenkamp § 272i at 364-68.

18 
vant "conduct" is the conspiratorial meetings themselves. In this case,

they argue, we should therefore focus only on the location of the

meetings at which the conspirators agreed to fix prices — and all of

those meetings were held outside the United States.

 The producers' suggested rule eliminates any examination of the

national affiliation of the participants in the conduct, the scope and

location of the target market, and the location of all acts other than

the actual conspiratorial acts. This rigidity troubles us. A noted commentary has warned against an overly rigid approach in this area of

antitrust law: "to say that domestic per se rules are not necessarily and

automatically applicable in the international context is not to say that

an antitrust court needs to hesitate very long before condemning

restraints with significant and obvious effects on United States commerce, and without any plausible purpose other than the suppression

of competition with and in the United States." IA Areeda &

Hovenkamp § 273 at 371. In short, the flexibility that permits a court

not to apply domestic rules to a defendant engaging in foreign conduct should be balanced by a court's ability to allow a plaintiff to pursue foreign conduct that does harm United States interests — even if

the defendants scrupulously entered into their illegal agreements only

outside the United States.

 The suggestion that we consider only the location of certain acts

concerns us particularly given that ever since Alcoa, the Supreme

Court's jurisdictional analysis has emphasized above all else the

effects, i.e., the intended location, actual location, and magnitude of

those effects. See, e.g., Kruman, 284 F.3d at 395. Quite simply, the

Supreme Court has moved away from its earlier doctrine focused

solely on the location of acts. We therefore doubt whether a jurisdictional rule focused exclusively on defining and locating a certain limited set of acts could possibly be appropriate.

 The potential consequences of the rule that the producers champion

only confirm our doubts. If, for example, executives of United States

corporations that did business solely in the United States met abroad

simply to consummate a price-fixing conspiracy that was carried out

entirely within the United States, the producers' proposed rule would

still require special proof of the conspiracy's effect before a United

States court could assert jurisdiction.

19 
 We reject this overly narrow view. McLain might well apply to

such a conspiracy, even though the acts that constituted the illegal

agreement took place exclusively abroad. Conversely, as the Second

Circuit has noted, meetings in the United States to negotiate "an

agreement to fix prices in an overseas foreign market that had no

effect on domestic commerce" do not yield antitrust jurisdiction in

our courts. See Kruman, 284 F.3d at 395. The universe of factors relevant to our jurisdictional analysis must be greater than the location of

the specific conspiratorial acts alone.

C. 

 Instead of the parties' bright-line rules, we believe a court should

properly engage in a more flexible and subtle inquiry. In determining

which jurisdictional test (Hartford Fire or McLain) applies, a court

should consider whether the participants, acts, targets, and effects

involved in an asserted antitrust violation are primarily foreign or primarily domestic.

 This inquiry will best accommodate the cases with mixed fact patterns, defying ready categorization as "foreign" or "domestic" conduct, which our increasingly global economy will undoubtedly

produce. We cannot begin to foresee the scope or complexity of

future transactions. To adopt the simplistic rules the parties favor

might well yield unintended and unfortunate results.

 Moreover, this area of antitrust law has historically been marked by

change, and remains a subject of serious debate. Not only the courts,

but also numerous commentators and even representatives of various

other countries (as frequent amici), have presented differing views,

focusing on various elements of conduct as crucial in addressing

whether assertion of jurisdiction is appropriate. Given these concerns,

we believe courts should remain able to consider the full range of factors that may appropriately affect the exercise of our antitrust jurisdiction in any given case.

 We note that this approach echoes that of the Third Circuit in Carpet Group and finds support in several of the treatises. See Carpet

Group, 227 F.3d at 75; Fugate § 2.12 at 80-82 (discussing the location

of "acts and agreements," the location of their effects, and the nation20 
ality of participants in considering jurisdiction); Restatement (Third)

of Foreign Relations Law § 415(2) (applying the same proposed jurisdictional test to "[a]ny agreement in restraint of United States trade

that is made outside of the United States, and any conduct or agreement in restraint of such trade that is carried out predominantly outside of the United States" (emphasis added)); cf. Montreal Trading

Ltd. v. Amax, Inc., 661 F.2d 864, 849 (10th Cir. 1981) ("When the

contacts with the United States are few, the effects upon American

commerce minimal, and the foreign elements overwhelming, . . . we

do not accept jurisdiction.").

 In this case, the bulk of the conduct related to the global conspiracy

alleged in the complaint and proved at trial occurred abroad. As in

Nippon Paper, the agreements here were all formed entirely outside

the United States — in several other countries. The target of the conspiracy was a global market, and the participants monitored prices in

many markets around the world. Although dozens of people participated in the meetings over the years, Dee-K can only point to two

who held office in United States companies, and both of them also

had important and in fact primary roles in Southeast Asian companies.

 To be sure, the producers sold rubber thread in the United States

to United States consumers. In particular, Heveafil sold through a

United States division of the parent producer, directing pricing by

communications from Southeast Asia, while Rubfil sold through a

wholly owned United States subsidiary and co-defendant. In addition,

a handful of faxes from the producers describe pricing in the United

States. It further appears that a United States distributor was made

aware, by a fax sent "FYI," of a group commitment not to hire an

executive whom one producer had fired for his opposition to price

increases.

 But these links to the United States are mere drops in the sea of

conduct that occurred in Southeast Asia (and around the world). See

In re Uranium Antitrust Litig., 617 F.2d at 1254 (applying Alcoa's

effects test in a price-fixing case even though twenty participants

were domestic and only nine foreign and the United States was part

of the target market). Just as the Third Circuit looked at a mass of

conduct and concluded it was "primarily" domestic in Carpet Group,

21 
227 F.3d at 75, so examining all of the conduct here, we can only

conclude that it is primarily foreign. The handful of contacts with the

United States that Dee-K cites cannot change the fact that the rubberthread conspiracy was formulated and furthered at numerous meetings, all of which took place in Southeast Asia, with attendees, all of

whom worked for Southeast Asian firms, and who directed their

activity to the global market. Only a few of the participants had any

United States affiliation, and each of those also had a primary Southeast Asian affiliation. In addition, although we have explained that we

do not find this factor alone dispositive, we consider it significant that

not one of the conspirators' many meetings took place in the United

States. In light of all of these factors, we conclude that the pricefixing conspiracy Dee-K alleged and proved was primarily "foreign

conduct" to which the Hartford Fire test properly applied.

 In closing, we note that even when a conspiracy constitutes "foreign conduct," an antitrust plaintiff still has access to the federal

courts to challenge it. The district court did not dismiss Dee-K's lawsuit because its claim involved foreign conduct. The court merely

required Dee-K to prove that the foreign conduct had a substantial

effect on United States commerce in order to recover. Other litigants

who claim that foreign conduct, which violates our antitrust laws, has

harmed them may also have their day in court, and the federal courts

will provide redress for those who can show that the harm of which

they complain had a substantial effect on our commerce. For Dee-K,

that day in court has come and gone.

IV. 

 For the reasons given herein, the judgment of the district court is

AFFIRMED. 

22