United States v. Lsl Biotechnologies Seminis Vegetable Seeds, Inc. Lsl Plantscience Lcc

Opinion by Judge TALLMAN; Dissent by Judge ALDISERT.

We must decide whether the district court erred by determining that it lacked subject matter jurisdiction over this antitrust action. The United States alleged that an agreement between the defendants (collectively, “LSL”) and an Israeli company, Hazera Quality Seeds, Inc., violates the Sherman Act. Because the challenged agreement does not have a direct, substantial, and reasonably foreseeable effect on United States commerce, we affirm the district court’s dismissal.

I

This dispute grows out of a joint business venture — always a fertile ground for litigation — that sought to solve the dilemma of how to bring fresher, tastier tomatoes to Americans who live in the northern part of the nation and therefore suffer from a lack of fresh tomatoes in the winter months.

In the early 1980s, LSL Biotechnologies, Inc., an American corporation that develops and markets seeds, entered into a relationship with Hazera. LSL began working with Hazera in the hope of developing a genetically-altered tomato seed that would produce tomatoes with a longer shelf-life. LSL and Hazera wanted to create such a tomato because, until recently,…

Dissenting:

This is a case of first impression. The panel is unanimous in agreeing that this appeal requires us to interpret critical language in the Foreign Trade Antitrust Improvements Act (FTAIA or “Act”), 15 U.S.C. § 6a (1994). We must express a judicial interpretation to a single word, “direct,” in the FTAIA’s provision of “direct, substantial, and reasonably foreseeable effect” on United States trade or commerce when foreign activity is involved. The flash point of controversy, however, is whether the word “direct” in the FTAIA is a new dimension added to traditional antitrust law that involves trade or commerce with foreign nations, as the majority concludes, as did the district court, or, as urged by the government in this appeal, is merely a codification of antitrust law in place prior to the enactment of FTAIA. I agree with the government’s interpreta *684 tion, and accordingly, respectfully dissent. I would reverse the judgment of the district court. 1

I.

Our analysis, perforce, must begin with the statutory language of FTAIA:

15 U.S.C. § 6a (emphasis added).

Although other appellate courts have dodged the critical issue on which this appeal turns, 2 this panel has…

379 F.3d 672 UNITED STATES of America, Plaintiff-Appellant, v. LSL BIOTECHNOLOGIES; Seminis Vegetable Seeds, Inc.; LSL Plantscience LCC, Defendants-Appellees. No. 02-16472. United States Court of Appeals, Ninth Circuit. Argued and Submitted August 5, 2003. Submission Withdrawn December 18, 2003. Resubmitted July 27, 2004. Filed August 11, 2004. Steven J. Mintz, U.S. Department of Justice, Antitrust Division, Washington, D.C., for the plaintiff-appellant. Thomas F. Connell and Jeffrey D. Ayer, Wilmer, Cutler & Pickering, Washington, D.C., for defendants-appellees LSL Biotechnologies, Inc. and LSL Plantscience LLC. Sabina Bhalla, Milbank, Tweed, Hadley & McCloy LLP, Los Angeles, CA, for defendant-appellee Seminis Vegetable Seeds, Inc. Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CV-00-00529-RCC. Before ALDISERT, * TALLMAN, and RAWLINSON, Circuit Judges. Opinion by Judge TALLMAN; Dissent by Judge ALDISERT. TALLMAN, Circuit Judge: 1 We must decide whether the district court erred by determining that it lacked subject matter jurisdiction over this antitrust action. The United States alleged that…