Micron

ORDER

The opinion filed at 538 F.3d 1107, 1110 (9th Cir. Aug.14, 2008) is amended as follows:

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

3 The district court granted defendants’ motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to prove proximate cause as an element of the claim. Compare Empagran S.A v. F. Hoffmann-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C.Cir.2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50 (2d Cir.2007) (affirming dismissal on 12(b)(6) grounds). The Supreme Court’s decision in Empagran I provides little guidance because, although the district court had dismissed under Rule 12(b)(1), the Court did not explicitly address whether the issue was properly viewed as one of federal question subject matter jurisdiction or of a failure to state a claim under…

concurring:

There is such a thing as “cause in fact,” that is, an event that, not necessarily alone, brings about a given result. A “but for” cause is cause in fact. A “legal cause” is a cause in fact that is recognized in law as creating liability. A “proximate cause” is a legal cause. What turns cause in fact into a legal cause is a value judgment that the cause in fact creates an unacceptable risk of injury to a protected interest. What is an unacceptable risk and what is to be protected depend on the values of the society.

As Cardozo’s famous opinion in Palsgraf makes clear, that is how causation is often considered in the law of negligence. Antitrust law, apparently, still offers “proximate” as if it provided something more than a label for a judgment that the conduct in question is foreseeably harmful to a social interest worthy of protection.

In the instant case, it would seem that reasonably prudent persons in the position of the defendants would see that their actions setting prices in the United States would negatively affect customers in the United States and elsewhere. But it has been the judgment of Congress and the Supreme Court that the economic interests of…

I. Background

Centerprise is a British corporation that uses DRAM in the manufacture of its computers. DRAM is a common type of memory chip that is sold around the world. According to Cen- terprise, DRAM is “a readily transportable commodity prod- uct with multiple firms offering essentially identical parts.” Centerprise purchased DRAM outside of the United States from the defendants, various memory companies.

Centerprise brought this antitrust class action in May 2005 on behalf of itself and all others similarly situated, pursuant to §§ 4(a), 12 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 22 and 26, seeking injunctive relief and damages, premised on defendants’ alleged violations of federal antitrust laws, including § 1 of the Sherman Act.2 Centerprise alleged that the defendants engaged in a global conspiracy to fix DRAM prices, raising the price of DRAM to customers in both the United States and foreign countries. Specifically, Centerprise asserted that the domestic effect of the defendants’ anticom- petitive conduct — higher DRAM prices in the United States — gave rise to its foreign injury of having to pay higher DRAM prices abroad because the defendants could not have…