U.S. Petition for Panel Rehearing

UNITED STATES OF AMERICA,,

                              Plaintiff-Appellant,

LSL BIOTECHNOLOGIES, INC., SEMINIS VEGETABLE SEEDS, INC., AND LSL PLANTSCIENCE LLC,

                              Defendant-Appellees.

RULE 35(b)(1) STATEMENT

INTRODUCTION

ARGUMENT

CONCLUSION

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

ADDENDUM

Cases: Page

Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982)

F. Hoffman-LaRoche Ltd. v. Empagran S.A., 124 S. Ct. 2359 (2004)

FTC v. PPG Industries, Inc., 798 F.2d 1500 (D.C. Cir. 1986)

Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989)

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993)

In re Ins. Antitrust Litig., 938 F.2d 919 (9th Cir. 1991), aff'd in part, rev'd in part, 509 U.S. 764 (1993)

Keene Corp. v. United States, 508 U.S. 200 (1993)

Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089 (9th Cir. 2003)

McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th Cir. 1988)

Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407 (1992)

N. Pac. Ry. Co. v. United States, 356 U.S. 1 (1958)

R.C. Dick Geothermal Corp. v. Thermogenics, Inc., 890 F.2d 139 (9th Cir. 1989)

Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992)

United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir.) (en banc), cert. denied, 534 U.S. 952 (2001)

United States v. Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997)

United States v. Texas, 507 U.S. 529 (1993)

United States v. Visa U.S.A., Inc., 344 F.3d 229 (2d Cir. 2003)

15 U.S.C. 1 3

15 U.S.C. 6a(1) 1, 4

28 U.S.C. 1605(a)(2) 14

Fed. R. App. P. 28(j) 10

Fed. R. App. P. 35(a) 1

Fed. R. Civ. P. 12(b)(1) 5, 12

Fed. R. Civ. P. 12(b)(6) 4, 7

Fed. R. Civ. P. 12(h)(3) 10

9th Cir. R. 35-1 2

Webster's Third New International Dictionary 640 (1981) 15

The district court dismissed the United States' complaint. The court treated the United States' allegation of a restraint on Hazera selling seeds to growers in the United States as "domestic conduct" and held that subject matter jurisdiction existed over those allegations. But the court dismissed them under Fed. R. Civ. P. 12(b)(6) for what the court considered to be an overbroad market definition. The court then held that the United States' allegation of a restraint on Hazera selling seeds to growers in Mexico did not allege a "direct" effect on U.S. commerce under the "direct, substantial, and reasonably foreseeable" standard of the FTAIA, 15 U.S.C. 6a(1), which the court read as more demanding than the pre-FTAIA common law. The court drew a distinction between seeds and tomatoes, such that a restraint on selling seeds could not have a "direct" effect on the U.S. market for tomatoes. The court thus dismissed the complaint with respect to what it deemed "foreign conduct" for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1).⁽¹⁾

On appeal, the panel majority affirmed, holding: (1) that the FTAIA did not codify the pre-FTAIA common law test for jurisdiction, but rather established a new test, slip op. 11019-21; (2) that the United States did not allege any "direct" effects because the impact of the potential competition that Hazera provides is neither immediate nor certain, id. at 11023-24; and (3) that the district court did not clearly err in holding that the effect of the Restrictive Clause on prices paid by U.S. consumers is not "direct" because "[t]he government has presented no evidence that LSL has or will artificially inflate the prices it charges to Mexican farmers for LSL's long shelf-life seeds." Id. at 11025.⁽²⁾

Senior Judge Aldisert, sitting by designation, wrote a lengthy and detailed dissent. He concluded that the FTAIA is best read as having codified the pre-existing common law, because that interpretation is consistent with more than 100 years of antitrust case law; the Restatement (Second) of Foreign Relations Law of the United States that was in effect at the time Congress enacted the FTAIA; leading antitrust treatises; Department of Justice guidelines; and the legislative history of the FTAIA. Slip op. 11032-44. He further concluded that the United States sufficiently alleged a "direct" effect on U.S. commerce in the sense of a proximate cause relationship between the restraint (the non-compete agreement) and the effect (no tomatoes from Hazera seeds). "The United States alleged a restraint on the very tomato seeds that grow into tomatoes in Mexico expressly for shipment to the United States. The consequences to the commerce of tomatoes in the United States are immediate . . . . [I]t is difficult to imagine foreign conduct that would have a more direct effect on United States commerce." Id. at 11049.

Judge Aldisert also agreed with the United States that this case is factually analogous to Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993), in which the Supreme Court treated an alleged foreign restraint on one product (reinsurance) as satisfying the common law test and the FTAIA (even assuming that the statute changed the prior law) by having an effect on a different, but closely related product in the U.S. (primary insurance). "If a restraint on reinsurance in the United Kingdom has a sufficiently 'direct' effect on primary insurance in the United States under the FTAIA, it is impossible to see how a restraint on tomato seeds in Mexico does not have an equally direct effect on the resulting tomatoes in the United States." Id.

Judge Aldisert then reached the Fed. R. Civ. P. 12(b)(6) issue, which the majority did not address, and concluded that the district court erred in that ruling as well. Slip op. at 11052-61.

1. The panel majority held that the FTAIA's use of the word "direct" represents a change from the pre-FTAIA common law test for application of the Sherman Act to foreign antitrust conduct. Slip op. 11019-21. The Supreme Court, however, has long recognized a fundamental canon of construction requiring "statutes which invade the common law . . . to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident." United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Isbrandtsen v. Johnson, 343 U.S. 779, 783 (1952)).⁽³⁾

The FTAIA does not show any clearly expressed intention to change the common law. Judge Aldisert's opinion explains at length that the pre-FTAIA common law already included a requirement of directness, so that the FTAIA is consistent with the prior law. Slip op. 11032-36. Congress wrote the FTAIA against that background, and the legislative history says that the purpose of the FTAIA was to "serve as a simple and straightforward clarification of existing American law," slip op. 11021 (emphasis added). And in Hartford the Supreme Court stated that it was "unclear " whether the FTAIA "amends existing law or merely codifies it." 509 U.S. at 797 n.23 (emphasis added). See also F. Hoffman-LaRoche Ltd. v. Empagran S.A., 124 S. Ct. 2359, 2366 (2004) (15 U.S.C. 6a(2) is ambiguous).

"Direct" therefore cannot be construed to mean anything more than it meant in the pre-FTAIA common law. This meaning, as Judge Aldisert explains, is a reasonably proximate causal nexus, i.e., a causal connection that is not too remote. Slip op. 11045-48. The majority did not analyze the pre-FTAIA common law, and it departed from the "existing" law by giving "direct" an entirely different meaning not in terms of causal connection but rather immediacy and certainty.⁽⁴⁾

2. The panel majority's decision also conflicts with United States v. Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997). Like this case, Nippon involved foreign conduct that allegedly was aimed at and affected U.S. markets. The First Circuit followed Hartford and applied the common law test. See 109 F.3d at 4 ("the case law now conclusively establishes that civil antitrust actions predicated on wholly foreign conduct which has an intended and substantial effect in the United States come within Section One's jurisdictional reach"). The panel majority here chose not to follow Hartford, distinguishing it on the ground that the defendants there "apparently concede[d]" jurisdiction. Slip op. 11026 (quoting 509 U.S. at 795). The First Circuit, however, expressly considered and rejected that argument. See 109 F.3d at 4 n.3.⁽⁵⁾ The First Circuit is correct, for the Supreme Court made clear that jurisdiction was not conceded by all the defendants: "One of the London reinsurers, Sturge. . . argues that the Sherman Act does not apply to its conduct. . . ." 509 U.S. at 795 n.21. In any event, a party cannot concede subject matter jurisdiction when it does not exist. Fed. R. Civ. P. 12(h)(3); Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003). If there truly had been no subject matter jurisdiction in Hartford, the Supreme Court would have dismissed the case.

3. The panel majority's holding is that an effect that is neither immediate nor certain cannot be "direct." Slip op. 11023-24. This holding is wrong because it contradicts the plain sense in which "direct" is used in the FTAIA; will have perverse effects; renders the statutory term "reasonably foreseeable" largely meaningless; and is completely unsupported by legal authority or antitrust principles.

The majority's holding focused on timing, emphasizing that the restraint produces no palpable effect on innovation or price today. But there is always some time between any cause and effect, and the length of that time is irrelevant to causality: the causal link between the firing of a gun and the impact of the bullet is equally direct no matter how far the marksman stands from the target. The majority also focused on certainty, emphasizing that Hazera might never market the relevant seeds. But certainty is not a proxy for directness: the further the marksman stands from the target, the less certain he is of hitting the target, but the causal link between firing the gun and hitting the target is equally direct whatever the distance.

Worse, the majority's unsupported distinction will have the perverse effect of immunizing anticompetitive restraints from legal challenge when the restraints are imposed early enough to deter the development of competing products. "[S]uffice it to say that it would be inimical to the purpose of the Sherman Act to allow monopolists free reign to squash nascent, albeit unproven, competitors at will." United States v. Microsoft Corp., 253 F.3d 34, 79 (D.C. Cir.) (en banc), cert. denied, 534 U.S. 952 (2001). See also FTC v. PPG Indus., Inc., 798 F.2d 1500, 1504-06 (D.C. Cir. 1986) (merger that eliminates competition to develop new technologies violates antitrust laws); United States v. Visa U.S.A., Inc., 344 F.3d 229, 241 (2d Cir. 2003) (exclusionary rules restrained competition that would have yielded "new and better products and services").

The panel's first means of statutory construction was the dictionary.⁽⁷⁾ It said: "A dictionary published contemporaneously with the enactment of the FTAIA defined 'direct' as 'proceeding from one point to another in time or space without deviation or interruption.'" Slip op. 11022-23. But, as Judge Aldisert explained in dissent, the "same dictionary source contains seven main meanings in the adjective form, encompassing 31 more specific subsidiary meanings. . . . All of those meanings are contemporary with the FTAIA, enacted in 1982, and many are both ordinary and common." Id. at 11045. "The existence of alternative dictionary definitions . . . each making some sense under the statute, itself indicates that the statute is open to interpretation." Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 418 (1992). See also Hartford, 509 U.S. at 797 n.23 (unclear how FTAIA might apply). The majority simply never mentioned the other pertinent dictionary definitions, and the dissent was right to say: "It would be arbitrary simply to pick one definition and declare it the 'plain meaning' in the abstract." Slip op. 11045.

Critically, another dictionary definition of "direct" is both pertinent and sensible: "characterized by or giving evidence of a close specially logical, causal, or consequential relationship." Webster's Third New International Dictionary 640 at 3a (1981). See Slip op. 11045 (dissent). This definition is "informed by the FTAIA's context and history." Id. The FTAIA had "the goal of achieving clarity" about the antitrust laws' reach over international business transactions. Id. at 11021 (majority). And this definition gives clarity by essentially expressing what the law has long called "proximate cause." This is particularly important in FTAIA interpretation because at the time the FTAIA was enacted, a major area of antitrust law ­ private plaintiffs' antitrust standing ­ treated the terms "directness" and "proximate cause" as comparable. In Blue Shield of Virginia v. McCready, 457 U.S. 465 (1982), the Supreme Court faced the issue of which persons have sustained injuries too remote from an antitrust violation to give them standing to sue for damages under Section 4 of the Clayton Act. In answering this question, the Court observed that, historically, some antitrust cases formulated a test for remoteness that equates it with "directness" (id. at n.12), and it suggested that both terms are analogous to the common law concept of "proximate cause." Id. nn.12, 13. See also In re Ins. Antitrust Litig., 938 F.2d at 926 ("Directness in the antitrust context means close in the chain of causation") (citation omitted).

The panel majority's failure to use the correct proximate cause definition of "direct" was not only a serious legal error, but it demonstrably led to the wrong result. The defendants never argued that the United States failed to show proximate causation, and Judge Aldisert's dissent explains convincingly why the facts establish proximate causation. Slip op. 11048-49. The majority never even used the term "proximate cause."

Furthermore, to define "direct" as "proximately caused" is a reminder that public policy undergirds concepts such as "proximate cause" and "direct." See id. The "policy unequivocally laid down by the [Sherman] Act is competition," N. Pac. Ry. Co. v. United States, 356 U.S. 1, 4-5 (1958), and the FTAIA, which is part of the Sherman Act, should be interpreted in light of its fundamental purpose to protect U.S. consumers. The majority's interpretation, however, frustrates that fundamental purpose. Under its logic, the Sherman Act applies in the case of a restraint that does not entirely exclude the potential competitor from the United States. But the Sherman Act does not apply because of the FTAIA in the case of a restraint that does entirely exclude the potential competitor from the United States. This reading turns both the Sherman Act and the FTAIA on their heads.

4. The panel majority's approach misreads the FTAIA to apply to conduct that it was not intended to address. The majority never explains why the FTAIA even applies to the conduct described by the district court as "domestic conduct," i.e., the restraint on Hazera's ability to develop and sell seeds to growers in the United States, as opposed to Mexico. That conduct is either domestic or potential import commerce, to which the FTAIA, by its terms, does not apply. The majority's reasoning that subject matter jurisdiction must be evaluated in terms of the case as a whole (slip op. 11016-17) does not answer this question. Nor does the majority explain why jurisdiction cannot exist as to some allegations of a complaint even if it is lacking with respect to other allegations, when a single restraint has several independent effects.

1. The United States' complaint did not characterize any conduct as "foreign" because the critical conduct in this case is the non-compete agreement itself, and, contrary to the panel majority's assertion (slip op. 11016), the agreement apparently was executed in New York. See Excerpts of Record ("ER") 81 and Addendum to U.S. Reply Br. Defendants conceded, for present purposes, that the agreement's effect on U.S. commerce was "reasonably foreseeable." The district court did not address the term "substantial" except for three words, and did not say what would constitute a substantial effect.

2. The majority's conclusion that no "direct" effect was alleged is based on the clearly mistaken premise that "Hazera has not yet developed its own long shelf-life tomato seeds capable of cultivation in North America." Slip op. 11024 n.7. The United States submitted sworn affidavit testimony that since 1996 Hazera has sold "greenhouse" tomato seed varieties in North America, some of which yield long shelf-life tomatoes, and growers in Mexico and California have planted them in open fields. "By my estimate, about ten percent of the non-summer fresh tomatoes consumed by United States consumers now come from Hazera." Declaration of Amit Schwarz ¶ 20, ER 162-63 (emphasis added). Moreover, some Florida growers currently buy existing Hazera virus-resistant "extended shelf-life" seeds, even though they were developed for other regions. Id. ¶ 24, ER 165. Competition from Hazera therefore is not "speculative," as the majority says. The non-compete agreement and defendants' litigation to enforce it have, however, deterred Hazera from modifying some of its other, currently existing long shelf-life seeds, designed for other regions of the world, specifically to fit North American climate zones. See id. ¶¶ 7, 22, 23, 25, 26, ER 158-66. But as Judge Aldisert points out, "Hazera cannot be faulted for not producing seeds in Mexico or the United States, as it has done elsewhere, because the Restrictive Clause prohibits it from doing so." Slip op. 11050 n.6.

Whether current or future Hazera seeds infringe LSL's patent rights, slip op. 11023, 11024 n.7, is irrelevant to the issue of whether there is a "direct" effect and jurisdiction under the FTAIA. If the seeds are infringing, which Hazera denies, then LSL can sue for patent infringement.

3. Accord, e.g., Keene Corp. v. United States, 508 U.S. 200, 209 (1993) ("we do not presume that the revision worked a change in the underlying substantive law unless an intent to make such a change is clearly expressed"); Green v. Bock Laundry Mach. Co., 490 U.S. 504, 521 (1989) ("A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change.").

4. McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th ^{Cir. 1988), cited by the majority (slip op. 11021), does not support the majority's decision. That case did not even raise the question of whether to read the FTAIA as changing the common law. But to the extent that it could be read that way, it was overruled by the Supreme Court's differing view in Hartford, five years later, that the FTAIA is "unclear" on that point. The issue is not whether the FTAIA "provides the guiding standard" here, slip op. 11021 ­ it plainly does ­ but what the FTAIA means.}

5. The United States alerted the panel to Nippon in a Fed. R. App. P. 28(j) letter dated August 12, 2003.

6. By contrast, the correct understanding of "direct" as a requirement of causation does not make it redundant of "reasonably foreseeable." Defendants conceded reasonable foreseeability for purposes of their motion to dismiss but do not concede a proximate cause relationship, thereby confirming that the two concepts are not identical. Under a proximate cause interpretation of "direct," the FTAIA would screen out cases in which foreign conduct has a reasonably foreseeable effect in the United States, but the effect is too remote from the conduct.

7. The majority's only other source for interpretation of "direct" was the phrase "direct effect" in the Foreign Sovereign Immunity Act ("FSIA"), 28 U.S.C. 1605(a)(2), as interpreted by the Supreme Court to mean "follows as an immediate consequence of the defendant's activity." Slip op. 11023 (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992)). The FSIA, however, deals with a different subject from the FTAIA: the scope of the immunity of foreign nations from suit under any statute in U.S. courts. There is nothing in the legislative history of the FTAIA indicating that Congress was influenced by the FSIA. Moreover, the Weltover language on its face is different from the panel majority's dictionary definition, and, as Judge Aldisert explained, is wholly consistent with upholding the United States' complaint. Slip op. 11046.