Petitioner, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2014 BOLTON CHEMISTS CORPORATION and WALDER MEDICAL SUPPLY, GMBH,, v. STARK PHARMACEUTICALS, LTD., Respondent. On Writ of Certiorari to the United States Court of Appeals for the Twelfth Circuit BRIEF FOR PETITIONER Counsel for the s

2 QUESTIONS PRESENTED 1. Did the Twelfth Circuit properly determine a Batson challenge is permissible on grounds of a perceived sexual orientation classification thus creating a new classification afforded heightened scrutiny under the Equal Protection Clause? 2. Did the Twelfth Circuit properly hold that foreign conduct bearing only a reasonably foreseeable causal nexus with it its alleged domestic effects satisfies the FTAIA s direct, substantial, and reasonably foreseeable exception? 2

3 TABLE OF CONTENTS TABLE OF AUTHORITIES... 4 OPINIONS BELOW... 6 STATUTORY PROVISIONS INVOLVED... 6 STATEMENT OF THE CASE... 7 SUMMARY OF THE ARGUMENT ARGUMENT I. THIS COURT SHOULD VACATE THE HOLDING OF THE TWELFTH CIRCUIT BECAUSE THE EXERCISE OF A PEREMPTORY STRIKE TO EXCLUDE A POTENTIAL JUROR ON THE BASIS OF PERCEIVED SEXUAL ORIENTATION DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE A. A Party May Use a Peremptory Strike on Any Group or Class Normally Subject to Rational Basis Review II. THIS COURT SHOULD VACATE THE TWELFTH CIRCUIT S DECISION AND AFFIRM THE DISTRICT COURT S OPINION BECAUSE GENERAL STATUTORY INTERPRETATION PRINCIPLES COMPEL THE ADOPTION OF THE IMMEDIATE CONSEQUENCES INTERPRETATION OF DIRECT A. Traditional Canons of Statutory Construction Conflict with the Test Adopted by the Twelfth Circuit B. Congressional Intent Supports the Immediate Consequences Test Used by the District Court Below C. The Presumption Against Extraterritorial Application of United States Law and International Comity Compel Adopting the Immediate Consequences Test Used by the District Court CONCLUSION

4 TABLE OF AUTHORITIES CASES Abbott v. United States, 562 U.S. 8, (2010) Albright v. Oliver, 501 U.S. 266, 272 (1994) Ass n v. Slater, 231 F.3d 1, 4 5 (D.C. Cir. 2000) Bailey v. United States, 516 U.S. 137, 145 ( Batson v. Kentucky, 476 U.S. 79, 83 (1986) Clements v. Fashing, 457 U.S. 957, 963 (1982) Connecticut Nat l Bank v. Germain, 503 U.S. 249, (1992)... 27, 31 Exxon Corp. v. Eagerton, 462 U.S. 176, 177 (1983) F. Hoffmann-La Roache Ltd. v. Empagran S.A., 542 U.S. 155, 162 (2004). 25, 33, 34, 35 F.D.I.C. v. Bierman, 2 F.3d 1424, 1434 (7th Cir. 1993)... 30, 34 FDIC v. Meyer, 510 U.S. 471, 476 (1994) Finley v. United States, 490 U.S. 545, 556 (1989) Griswold v. Connecticut, 381 U.S. 479, 485 (1965) Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) J.E.B. v. Alabama ex rel. T.B., 511 U.S Lamie v. United States Tr., 540 U.S. 526, 538 (2004) Lotes Co., Ltd. v. Hon Hai Precision Indus.Co., 753 F.3d 395, 410 (2d Cir. 2014) Loving v. Virginia, 388 U.S. 1, 12 (1967) Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992)... 10, 28 Romer v. Evans, 517 U.S. 620, 632 (1996) See Minn Chem, Inc. v. Agrium, 683 F.3d 845, 857 (7th Cir. 2012)... 25, 28, 30, 31 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) Swain v. Alabama, 380 U.S. 202, 219 (1965) United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 952 (7th Cir. 2003) United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) United States v. LSL Biotechnologies, 379 F.3d 672, 677 (9th Cir. 2004)... 24, 25 United States v. Nichols, 937 F.2d 1257, 1264 (7th Cir.1991) United States v. Universal C.T.I. Credit Corp., 344 U.S. 218, 221 (1952) United States v. Windsor, 133 S. Ct. 2675, 2695 (2013) Washington v. Glucksberg, 521 U.S. 702, (1997) Windsor v. United States, 699 F.3d. 169 (2d Cir. 2012) Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) STATUTES 4

5 15 U.S.C. 1 (2012)... 23, U.S.C. 6a (2012)... 6, 25, 27, U.S.C (2012) U.S.C. 1605(a) U.S.C. 1605(a) (2012) U.S.C OTHER AUTHORITIES H.R. Rep. No , at 9 (1982)... 24, 32, 33 Webster s Third New International Dictionary 640 (1982) CONSTITUTIONAL PROVISIONS U.S. Const. amend. VI U.S. Const. amend. XIV

6 OPINIONS BELOW The Order of the United States District Court for the District of North Westeros, Starke Pharm., Ltd. v. Bolton Chemists Corp., No (D.N. Westeros Nov. 9, 2012), is unreported. Likewise, the Decision of the United States Court of Appeals for the Twelfth District, Starke Pharm., Ltd. v. Bolton Chemists Corp., No (12th Cir. Aug. 13, 2013), is unreported. STATUTORY PROVISIONS INVOLVED The Foreign Trade Antitrust Improvements Act: Sections 1 to 7 of this title shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless (1) such conduct has a direct, substantial, and reasonably foreseeable effect (A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations; or (B) on export trade or commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and (2) such effect gives rise to a claim under the provisions of section 1 to 7 of this title, other than this section. If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then section 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States. 15 U.S.C. 6a (2012). 6

7 STATEMENT OF THE CASE s respectfully request this Court to reverse a Twelfth Circuit decision establishing a new heightened scrutiny classification based on sexual orientation to be afforded protection under the Equal Protection Clause and establishing the Foreign Trade Antitrust Improvements Act ( FTAIA ) only requires foreign conduct to have a reasonable proximate causal nexus with its domestic effect. I. Facts Giving Rise To The Original Allegations In 1989, the Respondent, Stark Pharma ( Stark ) developed the drug Rx Sansa ( Sansa ) to treat HIV/AIDS. R. at 2. s, Bolton Chemists and Walder Medical Supply, manufacture one of Sansa s key ingredients Viseriol in foreign nations. Id. at 2 3. Stark held patents related to Sansa until Id. at 3. When the patent period ended, generic versions of Sansa would flood the market at a significantly reduced cost. R. at 3. In an attempt to increase Sansa s brand recognition after the patent period, Stark implemented an unproven marketing strategy for Sansa. Id. Sansa was successful but Stark s new marketing strategy did not work as expected. Id. at 4. In line with its novel marketing strategy, Stark anticipated it would only be able to lower the price of Sansa slightly in the year following the patent period. R. at 4. When the patent expired, however, the price of Viseriol increased causing Stark to keep Sansa prices stagnant. Id. at 4 5. In the year following the expiration of the patent, the generic versions of Sansa constituted thirty percent of the 7

8 American HIV/AIDS cocktail market. Id. at 5. The generic versions obtained fortysix percent of the market by the end of the following year. Id. Stark decided to conduct an investigation into Viseriol s price increase. R. at 5. Stark concluded Bolton Chemist and Walder Medical were colluding to drive up the price of Viseriol. Id. Stark came to this conclusion because the companies had recently increased the price of Viseriol is similar ways. Id. Stark also discovered high-level leaders from both companies attended the same conference in Id. Without any further evidence, Stark decided to file a lawsuit against s. Id. II. District Court Proceedings In January 2010, Stark filed suit against the s in the North Westeros District Court alleging their conduct violated the Sherman Act. R. at 6. In preparation for trial, a jury was selected. Id. During voir dire, the judge led the questioning. Id. Panel member #10 indicated he was a member of Winterfallen Gay Men s Chorus. Id. He also indicated that during the 1980s, he lived in a neighborhood where there was substantial discussion and concern regarding HIV/AIDS. R. at 6. He did not, however, personally know anybody who contracted HIV/AIDS. Id. Although Panel member #10 never explicitly stated he was homosexual, his answers suggested he was gay. See R s exercised a peremptory strike against the panel member #10. R. at 7. Respondent immediately asserted a Batson challenge. Id. Respondent alleged s removed panel member #10 based on his sexual orientation in violation of the Equal Protection Clause. Id. 8

9 s responded by proffering their non-discriminatory justification for striking panel member #10. R. at 7. s indicated panel member #10 s extensive exposure to the ravages of HIV/AIDS in his community made it reasonable to wonder whether that sort of life experience might influence his deliberation. Id. The District Court overruled Respondent s objection. Id. at 8. The jury was empanelled, absent panel member #10, and the case proceeded to trial. R. at 8. At the close of evidence, the court issued the anticipated charge to the jury. Id. Included in the anticipated charge was the following: The plaintiff has alleged that defendants, which are foreign companies, engaged in anticompetitive conduct outside the United States in violation of U.S. antitrust law. Defendants conduct occurred outside the United States. Therefore, before deciding whether defendants conduct violated U.S. antitrust law, you must first decide whether U.S. antitrust law applies here. To be governed by U.S. antitrust law, foreign anticompetitive behavior must have a direct, substantial, and reasonably foreseeable effect on commerce in the United States. That means that the effect in the United States must follow as an immediate consequence of the defendants activity. R. at 8. The Respondent s filed a written objection to this jury instruction due to the narrow interpretation of the Sherman Act s extraterritorial application. Id. The court denied Respondent s objection; Respondent moved the court for judgment as a matter of law, or alternatively, for a new trial after the jury returned a verdict for the s. Id. III. District Court Order On November 9, 2012, the District Court issued an Order denying Respondent s Motion for Judgment as a Matter of Law and, alternatively, Motion for a New Trial. R. at 10. The District Court s Order adhered to precedent in 9

10 determining the proper level of scrutiny to apply under the Equal Protection Clause and the proper interpretation or test to adopt under the FTAIA. See R. at 14 16, 18. A. The District Court refuses to issue an innovative order that applies heightened scrutiny to classifications based on sexual orientation. The District Court determined a prima facie case under Batson was made because: (1) Panel Member #10 was a member of a cognizable group; (2) exercised a peremptory strike against Panel Member #10; and (3) Defendants exercised this strike based on their perception of Panel Member #10 s sexual orientation and their related concerns. R. at 12. The District Court then performed its analysis under the Equal Protection Clause. R The District Court considered recent and well established precedent, such as Windsor v. United States, 699 F.3d. 169 (2d Cir. 2012), and held it would be against the weight of authority to consider sexual orientation a suspect class. R. at 14. B. The District Court determines clarity and prescriptive comity indicate the immediate consequences test is more appropriate. After briefly discussing the Sherman Act and how the FTAIA fits into it, the District Court quickly determined the issue before it goes to the merits of the FTAIA. R. at The court then identified the two conflicting interpretations of direct within the FTAIA before announcing its decision to adopt the Ninth Circuit s analysis. R. at 18. In justifying its decision, the District Court walked through the Ninth Circuit s analysis. See R. at The District Court noted the Ninth Circuit 10

11 relied on precedent from this Court in determining a direct effect follows as an immediate consequence of activity. Id. at 19 (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992)). The District Court found the similarities between the Foreign Sovereign Immunities Act ( FSIA ) and the FTAIA persuasive. R. at 19. The similarities led the District Court to impose this Court s definition of direct under the FSIA onto the same word in the FTAIA. See id. at The District Court also discusses the alternate interpretation or test relating to the word direct intuited by the Seventh Circuit. R. at The District Court indicates the Seventh Circuit s test lumps the statutory requisites of direct, substantial, and reasonably foreseeable together into a singular definition. Id. at 20. The lower court is critical of the Seventh Circuit s analysis by indicating: This Court is unconvinced that the inclusion in a statute of multiple, independent criteria indicates a congressional intent to divest each word of its independent meaning and instead attempt to assign them a collective definition. Id. The discussion of the Seventh Circuit s test is concluded by commenting on the difficulty judges and juries would have trying to determine the reasonably proximate causal nexus in foreign antitrust cases. See id. The District Court s Order culminates by discussing the practical consequences an ambiguous standard would have on international affairs. See R. at The court below notes the concern other nations have regarding the extraterritorial application of American antitrust law. Id. at 22. The Court also states an expanded scope of reachable conduct under the Sherman Act would only 11

12 serve to disrupt the harmonious relationship between the potentially conflicting laws of foreign nations. Id. The District Court wisely concludes: The more rigorous immediate consequences test strikes a better balance between protecting U.S. commerce from anti-competitive conduct and respecting sovereign nations right to govern commercial affairs within their borders. Id. IV. Appellate Court Decision Respondent filed an appeal with the United States Court of Appeals for the Twelfth Circuit. See R. at 23. The Court of Appeals issued its decision on August 13, Id. at 36. Despite the lack of precedent, the Twelfth Circuit reversed the District Court opinion and determined heightened scrutiny is applicable to sexual orientation based classifications for Equal Protection purposes. Id. at 32. The Twelfth Circuit also reversed the lower court in determining the reasonably proximate causal nexus test divined by the Seventh Circuit was the proper standard. Id. at 36. A. The Twelfth Circuit applies a heightened level of review. The Court of Appeals cited to Windsor to support its conclusion that sexual orientation requires a heightened level of scrutiny. R. at 30. The Court of Appeals determined Windsor requires a legitimate purpose to overcome[ ] the disability on a class of individuals. Id. at 31. The Court of Appeals also justified its holding by mentioning growing social concerns. Id. at 32. The Court also indicated strict scrutiny should apply due to the implication of a fundamental right. Id. at

13 The Court of Appeals stated that peremptory strikes on the basis of sexual orientation cause constitutional risks because: (1) they create a negative perception in the struck juror s community about their freedom and right to participate in the regulated public forum of the jury; and (2) they infringe on the litigant s or accused s right to a jury of their peers. R. at 28. B. The Twelfth Circuit follows the Seventh Circuit s interpretation of direct. In rendering its opinion, the Twelfth Circuit criticizes the Ninth Circuit s interpretation adopted by the District Court. See R. at The court below is critical of the Ninth Circuit s reliance on this Court s interpretation of direct within the FSIA. See id. at Furthermore, the circuit court appears to disagree with this Court s analysis of the word direct within the FSIA s context. Id. at 34. The Twelfth Circuit also disregards the amicus briefs discussed by the District Court and ignores the potential reaction of the international community. Id. Finally, the court below states the additional complexity associate with the reasonably proximate causal nexus standard should not be a deterrent. See R. at 36. The Twelfth Circuit concludes the standard found in the Seventh Circuit s decision is more persuasive. R. at 35. There is not very much analysis devoted to justifying the standard that is adopted, but the District Court Order is reversed and remanded back for an order in accordance with the decision to be issued. See id. at

14 SUMMARY OF THE ARGUMENT The Twelfth Circuit s decision should be vacated in its entirety and the District Court s Order should be affirmed. The Twelfth Circuit s decision conflicts with established precedent by affording classifications based on sexual orientation heightened scrutiny. The Court of Appeals also interpreted the word direct within the FTAIA in a manner contrary to the established principles of statutory interpretation. Only members of classes protected by the Equal Protection Clause can successfully establish a Batson challenge to a peremptory strike during voir dire. If the challenger is not a member of a suspect or quasi-suspect class, that person is subject to rational basis review and can be struck. Sexual orientation is not a protected class under the Equal Protection Clause. Even if sexual orientation affords an individual rights through substantive due process, that is not sufficient to warrant the application of heightened scrutiny for Batson challenges. The Twelfth Circuit also erred by adopting the reasonably proximate causal nexus standard. Traditional canons of statutory construction, the legislative history, and international policy considerations all favor the immediate consequences test utilized by the District Court. The Twelfth Circuit s sparse legal analysis does not justify its holding. Accordingly, the Court should vacate the Twelfth Circuit s decision and affirm the District Court s Order. 14

15 ARGUMENT I. This Court Should Vacate the Holding of the Twelfth Circuit Because the Exercise of a Peremptory Strike to Exclude a Potential Juror on the Basis of Perceived Sexual Orientation Does Not Violate the Equal Protection Clause. A juror may be removed from a panel based on their sexual orientation without violating the Equal Protection Clause. The rule of Batson does not apply to those who are members of a group subject to rational basis review, and there are no specific exceptions in statutory law preventing a juror from being removed from the venire due to the juror s sexual orientation. Accordingly, the Twelfth Circuit decision should be vacated and the District Court Order affirmed. The Equal Protection Clause of the Fourteenth Amendment states: No State shall... deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV. This Court has held that to remove an individual from a jury based on that juror s race, denies that juror equal protection under the laws. Batson v. Kentucky, 476 U.S. 79, 83 (1986). When a party asserts a Batson challenge, the moving party must establish a prima facie case of purposeful discrimination. Batson, 476 U.S. at 96. The non-moving party can then offer non-discriminatory justifications for the strike. Id. at 97. Once both parties have met their burden, the court must decide if the strike was impermissible under the Equal Protection Clause. Id. at 89. Since Batson, the list of classifications for which a person may not be excluded from jury duty has expanded. Currently, a person cannot be excluded from 15

16 a jury base on color, religion, gender, national origin, or economic status. 28 U.S.C (2012); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130 (1994) (holding peremptory challenges by state actors may not be based on gender). In the case at bar, both parties met their burden and the District Court used rational basis review to determine if the strike was permissible. R. at 16. The court relied on precedent and exercised judicial restraint to determine rational basis review was the appropriate level of scrutiny. R. at 15. The Twelfth Circuit made its determination to apply a heightened level of scrutiny not based on precedent, but instead, on their broad interpretation of recent cases. Id. Existing precedent does not provide a basis for applying ration basis review in the current case, and there have not been changes in the statutory scheme indicating a potential juror cannot be excluded based on sexual orientation. A. A Party May Use a Peremptory Strike on Any Group or Class Normally Subject to Rational Basis Review. s used a peremptory strike against an individual based on a classification, which under Equal Protection, would be subject to rational basis review. This renders the strike permissible under the Equal Protection Clause. This Court determined parties can exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to rational basis review. J.E.B., 511 U.S. at 143. Groups or classes of individuals normally subject to rational basis review are those who do not belong to a suspect or quasi-suspect classes. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) (holding strict scrutiny applies when an action 16

17 interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class). The District Court properly determined the standard of review based on the classification not a whether a fundamental right was implemented. The Court of Appeals was focused on the rights and analyzed the Batson challenge under the Substantive Due Process Clause not the Equal Protection Clause. 1. Rational Basis Review Is the Proper Standard of Review For Equal Protection Claims Based on Sexual Orientation. Established precedent provides a clear basis for applying rational basis review to classifications based on sexual orientation. This Court continuously applies rational basis review to Equal Protection claims based on sexual orientation. Even when this Court upheld claims involving sexual orientation, it has done so using rational basis review. Rational basis review requires that a classification be rationally related, or reasonably furthers a legitimate government interest. Clements v. Fashing, 457 U.S. 957, 963 (1982); Exxon Corp. v. Eagerton, 462 U.S. 176, 177 (1983). This Court held that a law intending to protect homosexuals from discrimination lacked a rational relationship to legitimate state interests. Romer v. Evans, 517 U.S. 620, 632 (1996). This Court explained its reasoning by stating: [I]f a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. Id. at

18 Romer established rational basis review as the standard for cases involving sexual orientation by using the phrases rational relation and legitimate end. Romer also reiterated rational basis review is used where a suspect class is not targeted, which would show the Court did not consider sexual orientation a suspect class. This Court again used rational basis review to determine if a law targeting homosexuals was valid, instead of using heightened scrutiny. United States v. Windsor, 133 S. Ct. 2675, 2695 (2013). The Court held no legitimate purpose overcomes the Government s action of regulating marriage and its definition. Id. at In the case currently before this Court, the Court of Appeals relied on the decision in Windsor, by stating this Court was using a heightened level of scrutiny since Windsor requires a legitimate purpose to overcome[] the disability on a class of individuals. R. at 31. The Court of Appeals assumes because the Windsor court used the word class, the court must have meant suspect class. This Court, however, never classified homosexuals as a suspect class in Windsor. The Appellate Court also failed to mention how the language legitimate purpose would indicate anything more than rational basis review when the language is not used in any level of heightened scrutiny. The Court of Appeals made a broad conclusion, that because the Windsor court held DOMA to be unconstitutional, that the court must have used a heightened level of scrutiny. Their conclusion was too broad and did not 18

19 take into consideration the past precedent of Romer, where This Court invalidated a statute using rational basis. 2. The Existence of Rights Protected by Substantive Due Process Does Not Trigger a Heightened Level of Scrutiny Under Batson. The Court of Appeals and Respondent have blurred the line between special rights and equal rights when it applied strict scrutiny to the Batson challenge. This Court has held: [T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition,.... [W]e have required in substantive-due-process cases a careful description of the asserted fundamental liberty interest. Washington v. Glucksberg, 521 U.S. 702, (1997). The Court of Appeals referred to a number of cases involving Substantive Due Process. The Appellate Court held that the peremptory strike on the basis of sexual orientation presents dual constitutional risks. R. at 28. The court went on to explain its reasoning by stating peremptory strikes based on sexual orientation created negative perception in the juror s community about their freedom and right to participate in the regulated public forum of the jury and infringe on the litigants or accused s rights to a jury of their peers. Id. The precedent that developed since Batson focuses on the rights of those being excluded from the jury instead of on the individual who is being excluded. If the Court were to accept the appellate court s reasoning, there would be numerous claims whenever anyone was excluded from jury service. These claims would not be limited to those involving Batson challenges. 19

20 a. Allowing Substantive Due Process Case Law to Apply in Batson Challenges Will Create Significant Complications. To determine the level of scrutiny for a peremptory strikes, a court must look at the individual being excluded not the individual s rights these might be implicated in order to avoid unnecessary claims. This court recognized: The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity. Albright v. Oliver, 501 U.S. 266, 272 (1994). In Albright the petitioner claimed his substantive due process rights were violated when a warrant was issued for his arrest, he turned himself in, and later learned there was no probable cause for the warrant. Id. at 268. The petitioner relied on case law which stated: [T]he Due Process Clause of the Fourteenth Amendment confers both substantive and procedural rights. Id. at 272. This Court rejected the argument, explaining: Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims. Id. at 273. In the current case, the had a claim against the particular action of discrimination under the Equal Protections Clause. Then, the Court of Appeals attempted to use a more generalized notion of substantial due process by holding classification based on sexual orientation should be subject to strict scrutiny. The Court of Appeals used an overly generalized notion of substantive due process when 20

21 it reasoned that a person s First Amendment rights where being implicated by excluding them from jury service because jury service was a public forum equal to that of an election ballot. R. at 28. The Eleventh Circuit s application of the law would undermine the process of voir dire all together; by the Eleventh Circuit s logic, there is a fundamental right to sit on a jury, and anyone dismissed from service could claim their First Amendment right is being challenged. The Eleventh Circuit s holding also leaves room for any person excluded from jury duty to make a substantive due process claim if any other fundamental rights were affected. This Court recognized a number of fundamental rights including: the right to marry, bear children, and for parents to raise their children as they see fit. Loving v. Virginia, 388 U.S. 1, 12 (1967); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). If all of these rights applied to the Eleventh Circuit s reasoning, an entirely new route would be created for challenging a peremptory strike. A juror who was excluded because he decided to send his kids to private school not public could challenge he was being prevented from a public forum based on his exercise of the fundamental right to parent his children as he sees fit. It is possible for a valid reason to exist for excluding this type of juror, but the Eleventh Circuit s logic allows for his exclusion to be questioned. Of course the trial court could rule that 21

22 the exclusion stands, but under the Eleventh Circuit s reasoning the ruling must pass strict scrutiny. It has also been established that a person may be excluded from jury service based on marital status without violating Batson. United States v. Nichols, 937 F.2d 1257, 1264 (7th Cir.1991). The Eleventh Circuit went far beyond the jurisprudence involving Equal Protection. The Eleventh Circuit instead was motivated by a particular result when it decided to use substantive due process in its ruling causing the circuit to lose sight of the effects its application would have. b. Even If this Court Decides to Expand the Application of Substantive Due Process, There Were No Fundamental Rights Implicated in this Case. The Court of Appeals attempted to use substantive due process in order to apply a heightened level of scrutiny to support its decision. However, there is no fundamental or constitutional right to serve on a jury, or to a jury of one s peers. The Sixth Amendment establishes an accused individual shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. U.S. Const. amend. VI. There is not language in the Sixth Amendment, which states that a jury is to be made up of a person s peers, it only states a jury must be impartial. In order to have an impartial jury, it is important for parties to exercise their peremptory challenges. Swain v. Alabama, 380 U.S. 202, 219 (1965) (indicating peremptory challenges eliminate extremes of partiality by assuring jurors will make their decisions based on the case presented to them and nothing). 22

23 In the case at bar, the Court of Appeals reasoned that peremptory strikes on the basis of sexual orientation create constitutional risks because, (1) they create a negative perception in the struck juror s community about their freedom and right to participate in the regulated public forum of the jury; and (2) they infringe on the litigants or the accused s right to a jury of their peers. R. at 28. However there is no constitutional right to a jury of peers, or to serve on a jury. The Court of Appeals also indicated a growing recognition that there is no need to regulate people based upon their sexual orientation ; this show they considered social concerns and not just precedent. R. at 26. The Court of Appeals was using social concerns and un-established rights in order to justify their judicial activism in its decision. II. This Court Should Vacate the Twelfth Circuit s Decision and Affirm the District Court s Opinion Because General Statutory Interpretation Principles Compel the Adoption of the Immediate Consequences Interpretation of Direct. To combat anticompetitive conduct affecting the United States economy, Congress enacted the Sherman Act in Sherman Act, ch. 647, 1, 26 Stat. 209 (1890) (current version at 15 U.S.C. 1 (2012)). That Act declared [e]very contract, combination of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations... illegal. 15 U.S.C. 1. The broad language of the Sherman Act suggested claims founded on foreign conduct that impeded trade or commerce with the United States would be actionable. The seminal opinion regulating lawsuits brought under the Sherman Act based on foreign conduct came out of the Second Circuit in See United States 23

24 v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945). This case attempted to establish a working test to determine when the Sherman Act applied to foreign conduct. Id. at 444. The Second Circuit required foreign anticompetitive parties to a transaction (1) to intend to affect American imports or exports and for those transactions (2) to actually have some effect on American imports or exports. Id. This test became known as the effects doctrine. United States v. LSL Biotechnologies, 379 F.3d 672, 677 (9th Cir. 2004). The ambiguity inherent within this test made it difficult for courts to uniformly apply. Id. at 678. To inject clarity into this area of law, Congress enacted the FTAIA. LSL Biotechnologies, 379 F.3d at 678; H.R. Rep. No , at 4 5 (1982). The FTAIA reads: Sections 1 to 7 of this title shall not apply to conduct involving trade or commerce (other than import trade or import commerce) with foreign nations unless (1) such conduct has a direct, substantial, and reasonably foreseeable effect (A) on trade or commerce which is not trade or commerce with foreign nations, or on import trade or import commerce with foreign nations; or (B) on export trade or commerce with foreign nations, of a person engaged in such trade or commerce in the United States; and (2) such effect gives rise to a claim under the provisions of section 1 to 7 of this title, other than this section. If sections 1 to 7 of this title apply to such conduct only because of the operation of paragraph (1)(B), then section 1 to 7 of this title shall apply to such conduct only for injury to export business in the United States. 24

25 15 U.S.C. 6a (2012). The introductory language removes all non-import foreign commerce from the Sherman Act. Id.; F. Hoffmann-La Roache Ltd. v. Empagran S.A., 542 U.S. 155, 162 (2004). The remainder of the FTAIA then claws back specific, non-import foreign conduct to be regulated by the Sherman Act. See 15 U.S.C. 1, 6a. The relevant issue to this appeal centers on Congress use of the word direct within the FTAIA. See R. at 33. Despite Congress goal of clarification, two competing interpretations of what situations qualified as being a direct effect spawned from the FTAIA. In 2004, the Ninth Circuit reasoned their immediate consequences interpretation. LSL Biotechnologies, 379 F.3d at 680. In 2012, the Seventh Circuit unveiled their reasonably proximate casual nexus interpretation. See Minn Chem, Inc. v. Agrium, 683 F.3d 845, 857 (7th Cir. 2012) (en banc). In the present case, the Twelfth Circuit sided with the Seventh Circuit on this issue by adopting the reasonably proximate casual nexus test. R. at 36. The Twelfth Circuit incorrectly adopted the reasonably proximate causal nexus test divined by the Seventh Circuit. This judicial interpretation goes far beyond the language and legislative intent of the FTAIA. Established rules governing statutory interpretation dictate the Ninth Circuit s immediate consequences test is the proper standard. Accordingly, this Court should determine the court below erred in applying the reasonably proximate causal nexus test, vacate the Twelfth Circuit s decision, and affirm the District Court s Order. 25

26 Courts follow general statutory interpretation principles so that Congress [can] legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts. Finley v. United States, 490 U.S. 545, 556 (1989). Several of these principles shed light on the proper interpretation of the word direct within the FTAIA. The relevant statutory interpretation principles include the traditional canons of statutory construction, the legislative history, and the general presumption against extraterritorial application of American law. These principles all compel vacating the Twelfth Circuit s decision and affirming the District Court s adoption of the Ninth Circuit s immediate consequences test. A. Traditional Canons of Statutory Construction Conflict with the Test Adopted by the Twelfth Circuit. The reasonably proximate causal nexus interpretation of direct adopted by the Twelfth Circuit flies in the face of traditional canons of statutory construction. The ordinary meaning of the FTAIA favors the adoption of the immediate consequences interpretation. The reasonably proximate causal nexus interpretation would render statutory words mere surplusage. Furthermore, Congress use of the indefinite article indicates the characterization of the immediate consequences test by its opponents is inaccurate. Accordingly, the canons of statutory construction stand in stark contrast to the interpretation adopted by the Twelfth Circuit. 1. The Ordinary Meaning of direct Conflicts with the Twelfth Circuit s Interpretation. 26

27 The cardinal canon of statutory interpretation is that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Conn. Nat l Bank v. Germain, 503 U.S. 249, (1992). Statutory words that are not defined within the statute are traditionally afforded their ordinary meaning. See F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994). The ordinary meaning of a word is often derived from a dictionary. See id. Courts also look to similar statutes using the same word for insight into that word s meaning. See LSL Biotechnologies, 379 F.3d at 680. The relevant exception to this case only applies if the foreign conduct s effect is direct, substantial, and reasonably foreseeable. 15 U.S.C. 6a. The FTAIA, however, does not define what the word direct means within the statute. See id. Dictionaries and other statutes enacted during the same time period as the FTAIA align with the Ninth Circuit s interpretation. The 1982 Webster s Third New International Dictionary is commonly cited in determining the definition of direct within the FTAIA. See, e.g., LSL Biotechnologies, 379 F.3d at 680; Lotes Co., Ltd. v. Hon Hai Precision Indus.Co., 753 F.3d 395, 410 (2d Cir. 2014). A primary definition of direct in that dictionary is proceeding from one point to another in time or space without deviation or interruption. Webster s Third New International Dictionary 640 (1982). This definition closely resembles the notion of an immediate consequence. There is nothing within that definition remotely close to invoking notions of reasonability or proximate cause. 27

28 Moreover, the word direct is also used in the Foreign Sovereign Immunities Act ( FSIA ). 28 U.S.C. 1605(a) (2012). This Court unanimously determined in the context of the FSIA a direct effect only occurs as an immediate consequence of conduct. See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992). In Weltover, this Court explicitly refused to read the concepts of foreseeability and substantiality into the word direct. See id. As the Seventh Circuit recognizes, there are differences between the FTAIA and the FSIA, but the sum of the similarities is greater than that of the differences. Minn-Chem, 683 F.3d at The two Acts were enacted within six years of each other; both involve the application of United States judicial jurisdiction over extraterritorial matters; and both statutes have a direct effect exception to a general rule within the statutes. Compare 15 U.S.C. 6a, with 28 U.S.C. 1605(a). Even though the Twelfth District was aware that dictionaries published contemporaneously with the FTAIA and interpretations by this Court of identical language supported the adoption of the immediate consequences test, the court below sided with the Seventh District. R. at In doing so, the court provided the definition promulgated by the Seventh Circuit, but the lower court provides no analysis as to why that interpretation should be used. R. at 35. In fact, the Twelfth Circuit s opinion appears contradictory. The Department of Justice s view also subscribed to by the Seventh Circuit is adopted by the court below. Id. That view indicates the FTAIA is a mere codification of traditional antitrust law. Id. In the very next sentence, the Twelfth Circuit begins: What the DOJ viewed to be the 28

29 traditional antitrust law is not entirely clear.... Id. The seemingly arbitrary decision to follow the Seventh Circuit and Department of Justice is shrouded in darkness by the lack of legal analysis. See R. at It is clear the ordinary meaning of direct at the time the FTAIA was enacted closely aligns with the Ninth Circuit s immediate consequences test utilized by the District Court. While this is not necessarily dispositive on the issue, other canons of statutory construction favor the adoption of this interpretation as well. 2. The Twelfth Circuit s Adopted Test Would Render Statutory Words Mere Surplusage While Simultaneously Softening the Import of Congress Chosen Words. Another canon of construction directs courts to adopt a statutory interpretation that affords every paragraph, sentence, clause, and word within a statute independent meaning. See Bailey v. United States, 516 U.S. 137, 145 (1995), superseded by statute on other grounds, Pub. L. No , 112 Stat , as recognized in Abbott v. United States, 562 U.S. 8, (2010). [T]he assumption [is] that Congress intended each of its terms to have meaning. Judges should hesitate... to treat [as surplusage] statutory terms in any setting.... Id. at (quoting Ratzlaf v. United States, 510 U.S. 135, (1994)). Moreover, courts are not permitted to add language to congressional enactments. Lamie v. United States Tr., 540 U.S. 526, 538 (2004). [This Court s] unwillingness to soften the import of Congress chosen words even if [it is] believe[d] the words lead to a harsh outcome is longstanding. It results from deference to the supremacy of the 29

30 Legislature, as well as recognition that Congressmen typically vote on the language of a bill. Id. (quoting United States v. Locke, 471 U.S. 84, 95 (1985)). An adoption of the reasonably proximate causal nexus interpretation would render the reasonably foreseeable language of the FTAIA mere surplusage. This interpretation suggests that direct is synonymous with the concept of proximate cause. See Minn-Chem, 683 F.3d at 857. When creating their test, the Seventh Circuit should have recognized their interpretation of direct would completely subsume the reasonably foreseeable language. The Seventh Circuit previously recognized that an action would satisfy the proximate cause element of a claim if the action was a substantial factor in producing the injury if the injury were reasonably foreseeable at the time of the wrongful act. F.D.I.C. v. Bierman, 2 F.3d 1424, 1434 (7th Cir. 1993). Permitting the Twelfth Circuit s interpretation of direct to stand would not only eviscerate the word direct from the statute, but it would also render the reasonably foreseeable requisite to the exception redundant and mere surplusage. Furthermore, following the reasonably proximate causal nexus test would infuse the word direct with additional language not enacted by Congress. Congress is presumed to carefully select each word within a statute so that each word has independent meaning. See Bailey, 516 U.S. at 145. If Congress intended direct to mean proximate cause, Congress would have used the phrase proximate cause. Several congressional enactments explicitly use the phrase proximate cause. See, e.g., 21 U.S.C (2012). Because the reasonably proximate causal 30

31 nexus test would require this Court to add language to the statute, the immediate consequence test is more appropriate. That interpretation gives full force to Congress choice of words it does not soften them. As such, the Seventh Circuit s reasonably foreseeable causal nexus test as adopted by the Twelfth Circuit is at odds with accepted statutory interpretation principles. 3. Congressional Use of the Indefinite Article Signifies a Broader Rule than Critics of the Immediate Consequences Test Suggest. Critics including the Twelfth District below often comment on the restrictive nature of the immediate consequences test without drawing attention to the use of an indefinite article. See, e.g., R. at 33. Again, a legislature says in a statute what it means and means in a statute what it says there. Germain, 503 U.S. at Indeed, [i]t is a rule of law well established that the definite article the particularizes the subject which it precedes. It is a word of limitation as opposed to the indefinite or generalizing for of a or an. Am. Bus. Ass n v. Slater, 231 F.3d 1, 4 5 (D.C. Cir. 2000) (quoting Brooks v. Zabka, 450 P2d 653, 655 (Colo. 1969)). The Ninth Circuit also preceded their articulated interpretation of direct with the indefinite article; this signifies a broader scope of foreign conduct would fall within the FTAIA purview than pundits suggest. See LSL Biotechnologies, 379 F.3d at 680; Minn-Chem, 683 F.3d at 857. In articulating their interpretation of direct, the Seventh Circuit expresses concern over the application of the Ninth Circuit s interpretation. Minn-Chem, 683 F.3d at 857. The Seventh Circuit claims that a foreseeable, substantial, and immediate consequence on import or domestic commerce comes close to ignoring 31

32 the fact that straightforward import commerce has already been excluded from the FTAIA s coverage. Id. It appears the Seventh Circuit is attempting to create the illusion of an extremely restrictive interpretation of direct by transmogrifying the indefinite article a into the definite article the. The general implication of using the indefinite article is that one of several acts can qualify as immediately preceding the domestic effect. It logically follows that the immediate consequences test does not come nearly as close to straightforward import commerce as the Seventh Circuit suggests. B. Congressional Intent Supports the Immediate Consequences Test Used by the District Court Below. The FTAIA s legislative history comports with the more restrictive and straightforward immediate consequences test. Congress ultimate purpose in enacting the FTAIA was to promote clarity and certainty, not to require a convoluted proximate cause analysis to emerge from the word direct. See H.R. Rep. No , at 9 (1982). The immediate consequences test promotes clarity and certainty; the reasonably proximate causal nexus test is amorphous and difficult to apply. Accordingly, the immediate consequences interpretation aligns closely with the legislative history and should be the interpretation adopted by this Court. It is permissible to utilize, in construing a statute not unambiguous, all the light relevantly shed upon the words and the clause and the statute that express the purpose of Congress. United States v. Universal C.T.I. Credit Corp., 344 U.S. 218, 221 (1952). In grappling with the meaning of FTAIA provisions, several 32

33 courts including this Court have looked to the legislative history. See, e.g., Empagran, 542 U.S. at 169; LSL Biotechnologies, 379 F.3d at 678. The FTAIA s legislative history is able to shed light on the proper interpretation of direct. The FTAIA s legislative history articulates two purposes for the enactment. The first is to combat the perception that American antitrust law impose a barrier to international business and relationships, H.R. Rep. No , at 2 (1982) (This topic will be discussed in the next section). The second purpose it to clarify[] the Sherman Act and the antitrust proscriptions of the Federal Trade Commission Act to make explicit their application only to conduct having a direct, substantial, and reasonably foreseeable effect on domestic commerce or domestic exports. Id. The first purpose mentioned is a perceived problem Congress sought to rectify through the second purpose of the enactment. See id. Not only does the goal of clarity in general support the more restrictive immediate consequences test, the House Report s language demonstrates congressional intent aligns with the more restrictive test. The above quoted language alludes to the appropriate standard being restrictive in nature. H.R. Rep. No , at 2 (1982). The purpose is to clarify by making it explicit these Acts only apply to conduct having a direct, substantial, and reasonably foreseeable effect. Id. (emphasis added). Admittedly, the language does restrict application within the terms direct, substantial, and reasonably foreseeable, but the legislative purpose taken as a whole contemplates that a restrictive and straightforward analysis is the congressional goal. 33

34 Moreover, Congress added the separate requirement of reasonably foreseeable into the test that was missing in earlier versions of the legislation. Id. at 7 9. The previous version of the law only required the effect be direct and substantial. Id. at 7. As discussed previously, the concept of proximate cause includes the notion of reasonably foreseeable, Bierman, 2 F.3d at 1434; it would be illogical to add a concept already encapsulated within the existing language. It follows that the legislative history clearly indicates reasonably foreseeable is a new, additional requirement. As such, it must be something separate and apart from the direct requirement. Accordingly, the Twelfth Circuit s adoption of the reasonably proximate causal nexus test is inappropriate because it conflicts with the legislative history of the FTAIA. Deference to congressional intent is appropriate in the present situation. C. The Presumption Against Extraterritorial Application of United States Law and International Comity Compel Adopting the Immediate Consequences Test Used by the District Court. The direct effect test adopted by the Twelfth Circuit below unreasonably interferes with the United States international relationships and can foreseeably result in international discord. Ambiguous statutes are to be construed to avoid unreasonable interference with the sovereign authority of other nations. Empagran, 542 U.S. at 164. If a broad, ambiguous standard is adopted, foreign animosity is likely to increase not be dispelled. Accordingly, the economic and 34