countries." Id. at 704, 82 S. Ct. at 1413. Furthermore, the Court differentiated the Sisal case, supra, from American Banana on the basis that in Sisal the "activities of the defendants had an impact within the United States and upon its foreign trade . . . ." Id. at 705, 82 S. Ct. at 1414. Although the foreign corporation involved in Continental Ore was a subsidiary of an American company, the court did not rest its holding on that ground.
In even stronger terms, but in the context of a trademark infringement suit brought not under the Sherman Act but under the Lanham Act, 15 U.S.C. §§ 1051 et seq., the Court in Steele v. Bulova Watch Co., 344 U.S. 280, 73 S. Ct. 252, 97 L. Ed. 319 (1952), stated that American Banana "was not meant to confer blanket immunity on trade practices which radiate unlawful consequences here, merely because they were initiated or consummated outside the territorial limits of the United States. Unlawful effects in this country, absent in the posture of the Banana case before us, are often decisive; this court held as much in Thomsen v. Cayser, (supra) and ( Sisal supra)," (also citing Alcoa ).
Not surprisingly therefore, the lower courts have uniformly rejected American Banana, asserting jurisdiction over foreign nationals and foreign activities in a wide variety of contexts. See In re Uranium Antitrust Litigation, 617 F.2d 1248 (7th Cir. 1980); Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979); Industrial Investment Development Corp. v. Mitsui & Co., 594 F.2d 48 (5th Cir. 1979), cert. denied, 445 U.S. 903, 100 S. Ct. 1078, 63 L. Ed. 2d 318 (1980); Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976); Dominicus Americana Bohio v. Gulf & Western Industries, Inc., 473 F. Supp. 680 (S.D.N.Y.1979); Fleischmann Distilling Corp. v. Distillers Co., 395 F. Supp. 221 (S.D.N.Y.1975); United States v. The Watchmakers of Switzerland Information Center, Inc., 1963 Trade Cases P 70,600 (S.D.N.Y.1963) (Swiss Watchmakers ); United States v. Imperial Chemical Industries, Ltd., 100 F. Supp. 504 (S.D.N.Y.1951); United States v. General Electric Co., 82 F. Supp. 753 (D.N.J.1949); United States v. National Lead Co., 63 F. Supp. 513 (S.D.N.Y.1945), aff'd, 332 U.S. 319, 67 S. Ct. 1634, 91 L. Ed. 2077 (1947). Cf. Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d Cir.), cert. denied, 434 U.S. 984, 98 S. Ct. 608, 54 L. Ed. 2d 477 (1977); United States v. Westinghouse Electric Corp., 471 F. Supp. 532 (N.D.Cal.1978); United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 428 F. Supp. 114 (S.D.N.Y.1977).
Extended analysis of these cases would be superfluous, for it is abundantly plain that some extraterritorial application of the Sherman Act is proper. Such a result is perhaps mandated by the vastly altered economic climate since the time of American Banana, with the vast increase in complex international corporate and trade interrelationships. It is sufficient to point out that the Third Circuit, in Mannington Mills, supra, commented that the Supreme Court in Continental Ore, supra, had cited with approval Alcoa's "intended effects" test. 595 F.2d at 1292. Although the Mannington Mills parties were both American companies, the court nonetheless spoke broadly of the jurisdictional reach of the Sherman Act, rejecting American Banana and adopting Alcoa. Thus, precedent in this circuit is clear.
MELCO has cited a number of cases which it maintains cite American Banana with approval. All are easily distinguished from the cases cited supra. Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953); Foley Bros. v. Filardo, 336 U.S. 281, 69 S. Ct. 575, 93 L. Ed. 680 (1949); Jackson v. The Archimedes, 275 U.S. 463, 48 S. Ct. 164, 72 L. Ed. 374 (1928); New York Central R. Co. v. Chisholm, 268 U.S. 29, 45 S. Ct. 402, 69 L. Ed. 828 (1925); and Sandberg v. McDonald, 248 U.S. 185, 39 S. Ct. 84, 63 L. Ed. 200 (1918), were all decided with reference to congressional intent as to the particular statute involved; none dealt with international economic regulation. Cuba Railroad Co. v. Crosby, 222 U.S. 473, 32 S. Ct. 132, 56 L. Ed. 274 (1912), a personal injury action, was decided according to traditional conflict of laws principles. Kohn v. American Metal Climax, Inc., 458 F.2d 255 (3d Cir.), cert. denied, 409 U.S. 874, 93 S. Ct. 120, 34 L. Ed. 2d 126 (1972), a securities case, mentioned American Banana only in a lengthy opinion by Judge Adams, concurring and dissenting. Judge Adams pointed out that "the extraterritorial effect of an Act of Congress is circumscribed; it may not regulate the conduct of a foreign corporation in a foreign country where there is no nexus with the United States." Id. at 310. We do not quarrel with that language; the question, however, is what constitutes a sufficient "nexus" with the United States. Alcoa's "intentional effect on United States commerce" standard defines that nexus. We have no difficulty in concluding that Judge Adams would agree, for he was a member of the panel which decided Mannington Mills, supra. While he wrote separately in that case, he nonetheless explicitly adopted Judge Hand's Alcoa test, as later interpreted by Timberlane Lumber Co. v. Bank of America, supra. Mannington Mills, supra, 595 F.2d at 1301.
Nor does Todhunter-Mitchell & Co. v. Anheuser-Busch, Inc., 383 F. Supp. 586 (E.D.Pa.1974), aid MELCO; in fact, in that case Judge Bechtle specifically noted that "American Banana is inapplicable to situations where the activities of the defendant have an impact within the United States and upon its foreign trade." 383 F. Supp. at 588. Finally, MELCO cites Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S. Ct. 1562, 23 L. Ed. 2d 129 (1969), but neglects to mention that the same footnote which cites American Banana cites Alcoa as well. The Court was concerned with the liability of an American manufacturer who participated in a foreign patent pool, finding that liability "beyond question." 395 U.S. at 113 n. 8, 89 S. Ct. at 1571 n. 8. However, the foreign participants in the conspiracy were apparently not parties to the action, so that the question raised in the instant action was never addressed.
Thus, MELCO has cited no case which would lead us to believe that, contrary to all other reports, American Banana retains any vitality beyond its act of state implications. MELCO vigorously argues, however, that the cases which have been discussed supra as adopting an "intentional effects" test for subject matter jurisdiction in the international antitrust field do not extend jurisdiction to foreign nationals acting solely in a foreign country. There are two major difficulties with this argument, even aside from the unsoundness of its implication that Alcoa is not good law. First, it is simply untrue that no case has reached foreign conduct abroad. Perhaps plainest is Fleischmann Distilling Corp. v. Distillers Co., 395 F. Supp. 221 (S.D.N.Y.1975), which refused to dismiss a private antitrust action against a foreign firm whose products were sold F.O.B. United Kingdom. See also United States v. General Electric Co., 82 F. Supp. 753 (D.N.J.1949); Swiss Watchmakers, supra.
Secondly, there is a fundamental fallacy in MELCO's argument as it relates to this litigation. MELCO has described itself as an isolated foreign manufacturer which committed no acts outside Japan. Even assuming that to be true, however, MELCO has overlooked the fact that what is alleged in this case is a worldwide conspiracy in which MELCO is alleged to be a single link one of almost one hundred alleged coconspirators, twenty-four of whom are defendants (and none of whom has asserted lack of subject matter jurisdiction). As such, MELCO is alleged to be a knowing participant in a conspiracy which included some United States companies and some of the acts in furtherance of which occurred in this country. It is abundantly plain from the cases discussed that the Sherman Act can reach an entire conspiracy, and all participants therein, regardless of the position of any single conspirator.
2. Scope of Extraterritorial Jurisdiction
The cases which have rejected American Banana and have asserted extraterritorial jurisdiction under the Sherman Act have variously described how far that jurisdiction should extend, with the primary difference being in the substantiality of the effect on United States commerce required. Formulations include "directly and materially affect(s) foreign commerce";
"the combination affected the foreign commerce of this country";
"(the conspiracy) intended to affect imports or exports";
"though there is no showing as to the extent of commerce restrained it (the contract) deleteriously affected (United States) commerce";
"(the conspiracy had) the effect of suppressing imports into and exports from the United States";
"a conspiracy . . . affecting American commerce";
"a direct and influencing effect on trade between the United States and foreign countries";
or "a conspiracy . . . affects American commerce."
The most thorough and thoughtful analysis of the concerns relevant to the assertion of extraterritorial jurisdiction was provided by Judge Choy in Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976). He found the effects test alone incomplete for failure to take into account the comity concerns emphasized so strenuously by MELCO and the commentators, and devised a tripartite analysis. First, rejecting the argument that the effect must be "substantial" or "direct," he required "some" effect, either actual or intended.
Second, he required an effect "sufficiently large to present a cognizable injury to the plaintiffs and, therefore, a civil violation of the antitrust laws." Finally, he instituted a balancing process to determine whether the interests of the United States were sufficiently strong, when balanced against those of other nations involved, to justify extension of extraterritorial jurisdiction. 549 F.2d at 613. Factors to be considered in this comity analysis included:
the degree of conflict with foreign law or policy, the nationality or allegiance of the parties and the locations or principal places of business of corporations, the extent to which enforcement by either state can be expected to achieve compliance, the relative significance of effects on the United States as compared with those elsewhere, the extent to which there is explicit purpose to harm or affect American commerce, the foreseeability of such effect, and the relative importance to the violations charged of conduct within the United States as compared with conduct abroad.