Christopher Williams645 E. Holly St. # 204 Boise, ID 83712Email: Will8385@vandals.uidaho.eduTel: (509) 540-0028

WRITING SAMPLETo whom it may concern, Attached is a 15 page excerpt of the facts and analysis section I contributed to for the National Moot Court Competition in fall 2014. No one outside of our three person team made any contributions to the paper. The fact section from pages 12 was substantially written by another participant and is included solely to provide context for the reader. The argument section is entirely my product and begins at page 3.Thank you for reading,Christopher Williams

ISSUES PRESENTED[First argument omitted]Did the Twelfth Circuit properly hold that foreign anticompetitive conduct directly affects the United States, and is thus governed by the FTAIA, if the foreign conduct bears a reasonably foreseeable casual nexus with its alleged domestic effects?STATEMENT OF FACTSIn 1982 Starke Pharmaceuticals Ltd. (Starke Pharma) was incorporated and had its principle place of business in the state of North Westeros. Starke Pharma focused nearly all of its attention towards combatting the AIDS/HIV virus. Until 1989, treatments for the AIDS/HIV virus consisted of a combination of pills, known as cocktails that were individually formulated for each patient. In 1989, Starke Pharma created a single-pill made-to-order cocktail known as Rx Sansa (Sansa). In 1990 Starke Pharma was issued a twenty-year patent on Sansa. To prepare for production, Starke Pharma conducted research to determine the maximum price the market would bear for Sansa. Starke Pharma deviated from the traditional pricing approach and risked another strategy to maximize profits. Although market research indicated that the customers would be willing to pay up to 10% more for a brand name drug, Starke Pharma deviated from that research and relied on an increased sales volume to collect profits. Due to this deviation, as soon as the Sansa patent expired, two generic companies, Rx Aryalite and Rx Rickontin, entered the market and offered the drug at 80% of Sansas market price. After the second year Sansa was only within 115% of the generics manufacturers price. By the end of 2010 generic medication constituted nearly 50% of all HIV/AIDS cocktails sold in the United States. Although Starke Pharma was incorporated and had its principle place of business in North Westeros, United States, it outsourced the manufacturing of its drug to companies in Japan, Canada, South Korea, and Germany. Afterwards everything was processed and packaged in Sweden and then shipped. Despite Starke Pharmas multi-international manufacturing operation which is subject to supply-chain instability and international market instability, Starke Pharma received information that the employees of both Bolton Chemists and Walder medical had attended a trade conference in St. Lucia in 2008. They reason that because both companies prices had steadily risen, that the employees illegally agreed to match each others Viserol prices and filed suit in the District of North Westeros in January 2010. The trial was set for May 2012. [Facts pertaining to first issue omitted]SUMMARY OF ARGUMENT[Summary of first issue argument omitted] Additionally, the district court correctly adopted the immediate consequence test as applied by the Ninth Circuit. This test is not only narrower and less vulnerable to overreaching, but has a more predictable application and does not overstep into foreign enforcement actions. STANDARDS OF REVIEWWe review de novo constitutional claims and questions of law. Rosas-Quiroz v. Holder, 12-70195, 2014 WL 4947087 (9th Cir. Oct. 3, 2014).ARGUMENT[First argument omittedThe Twelfth Circuit improperly held that foreign anticompetitive conduct is governed by the FTAIA if the foreign conduct bears a reasonably foreseeable casual nexus with its alleged domestic effects.The Sherman Act makes it a felony to enter into a [c]ontract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations . . . . 15 U.S.C.A. 1 (West). Although the Act explicitly applies to acts in foreign nations, it does not apply to all foreign conduct nor does it specifically state a test for when application to foreign conduct is appropriate; the Second Circuit Court of Appeals wrote an influential opinion regarding the Sherman Acts application to foreign law in 1945, proffering the effects test, which was subsequently adopted by many courts. United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945). Congress passed the Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) to clarify the precise test to determine the Sherman Acts application to foreign law. 15 U.S.C.A. 6a (West). The FTAIA states that [The Sherman Act] shall not apply to conduct involving trade or commerce . . . with foreign nations unless (1) such conduct has a direct, substantial, and reasonably foreseeable effect, (a) on trade or commerce . . . or (b) on export trade or commerce . . . . Id. (emphasis added). The Circuit Courts adopted two parallel tests to interpret the direct requirement of direct, substantial, and reasonably foreseeable effect. In 2004, the Ninth Circuit adopted the immediate consequence test. United States v. LSL Biotechnologies, 379 F.3d 672, 68083 (9th Cir. 2004). More recently, in 2012, the Seventh Circuit adopted the reasonably proximate causal nexus test. Minn Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 857 (7th Cir. 2012). Before the FTAIA and these two opinions, the test utilized by most courts was the Second Circuits effects test that the Sherman Act was meant to reach foreign conduct only if it was intended to and did affect United States commerce. LSL Biotechnologies, 379 F.3d at 677. The Ninth Circuit adopted the immediate consequence test in response to the patchwork of FTAIA interpretations of lower courts, many of which could not even agree on whether the FTAIA set a new jurisdictional standard or merely codified the [effects test] Id. at 678. To create this test, the court used a dictionary from the time of the FTAIAs passage, which stated that direct meant proceeding from one point to another in space or time without deviation or interruption. Id. at 680. They then analogized a Supreme Court interpretation of direct in the context of the Foreign Service Immunities Act, where the Court stated that an effect is direct if it follows as an immediate consequence of the defendants activity. Id. (quoting Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 618 (1992). When determining whether an action is direct for purposes of the FTAIA, the effect must follow as an immediate consequence of the defendants activity. Id.The Seventh Circuit adopted the reasonably proximate causal nexus test and rejected the Ninth Circuits immediate consequence test in Minn Chem, Inc. 683 F.3d 845, 856 (7th Cir. 2012); Lotes Co. v. Hon Hai Precision Industry, Co., 753 F.3d 395, 410 (2d Cir. 2014). This test reads substantial and reasonably foreseeable into the definition to determine that direct means the action and subsequent effect must have a reasonably foreseeable causal nexus. Id. at 857. While saying nothing to the dictionary definition cited, the court states that the Ninth Circuit was too quick to adopt the Supreme Courts interpretation of direct, because it was used in a different context. Id. at 857.Ultimately, the immediate consequence test is a stricter, conservative application of the direct, substantial, and foreseeable language that will cover less activity than the reasonably foreseeable causal nexus test. The immediate consequence test is more appropriate and should be adopted by this Court because 1) the statutory text of the FTAIA favors the immediate consequence test, 2) the Seventh Circuits test is difficult to apply and will lead to over-application of the law, inconsistent with the legislative intent, and 3) On difficult questions, deference should be given to the interests in a foreign nations sovereignty.The Statutory Text of the FTAIA favors the immediate consequence test.The reasonably foreseeable causal nexus test stretches the limits of a reasonable reading of the text and requires the equivalent of mental gymnastics to reach; in contrast, the immediate consequence test merely requires the application of dictionary and Supreme Court definitions, and the presumption that Congress means what it says. First, the dictionary definition of direct supports an immediate consequence test. The Supreme Court also defined direct in the past under a similar anti-trust provision. Second, the three elements of the test are separate and distinct, and reading the elements to modify each other is both counterintuitive and against Congresss stated intent in its House Report.Interpreting a statute begins, first and foremost, with the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Consumer Prod. Safety Commn v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). A primary rule of statutory construction is that the courts must presume that a legislature says in a statute what it means and means in a statute what it says there. Connecticut Natl Bank v. Germain, 503 U.S. 249, 25354 (1992). Additionally, in making this determination, the court must interpret the relevant words . . . with reference to the statutory context, structure, history, and purpose. Abramski v. United States, 134 S. Ct. 2259, 2267 (2014). When the words are unambiguous, judicial inquiry is complete. Natl Bank, 503 U.S. at 254 (citing Rubin v. United States, 449 U.S. 424, 430 (1981)). Ultimately, relevant definitions and the statutory context of the document are the best indicators regarding the intent of a statute.The 1981 version of Websters dictionary defines direct as proceeding from one point to another in time or space without deviation or interruption. LSL Biotechnologies, 379 F.3d at 680 (quoting Websters Third New Intl Dictionary 640 (1981)). A parallel, second definition in the same dictionary cited by the Ninth Circuit states that direct is characterized by or giving evidence of a close especially logical, causal or consequential relationship. Lotes, 753 F.3d at 410 (quoting Websters Third New Intl Dictionary 640 (1981)). The Second Circuit favored the parallel definition and seemed to believe this second definition supported the reasonably proximate causal nexus test. It is highly relevant though that the parallel definition does not state that direct is a reasonably close logical, causal or consequential relationship, but instead states that direct is an especially [close] logical, causal, or consequential relationship. Taking the plain definition of directwhich includes language such as without deviation or interruption, and especially closeand using another element, reasonably foreseeable, to impose a reasonableness requirement into the definition ignores the plain language imposed by both dictionary definitions.Additionally, the Supreme Court defined a direct effect to mean it follows as an immediate consequence of the defendants . . . activity. Republic of Argentina v. Weltover, 504 U.S. 607, 618 (1992). The Seventh Circuit finds it highly relevant that, in Weltover, the Supreme Court refused to read the requirements of substantial or reasonably foreseeable into the definition of direct, arguing that the FTAIA includes such language, so the language should be read into the definition of direct. Minn-Chem, Inc., 683 F.3d at 85657. However, this conclusion directly contradicts the plain meaning of the language and the intention of Congress.Reading a requirement of substantial and reasonably foreseeable into the directness requirement is illogical because they are three separate and distinguishable elements of the extraterritorial application of the Sherman Act. Direct, substantial, and reasonably foreseeable each address a distinguishable character of the effect that must occur. Direct refers to how the action affects the United States, whether they are ancillary, indirect, or direct; substantial refers to the significance or the intensity of the actions effect; and reasonably foreseeable refers to how foreseeable the actions effect on the United States must be. Under the Seventh Circuits interpretation, in order to reach the Ninth Circuits conclusion (that direct means what the dictionary and the Supreme Court has defined it to mean), Congress would have to place a disclaimer at the bottom of the statute stating the three elements listed above are separate elements and do not define each other. Under this interpretation, Congress would not be safe creating a list of elements that, together, constitute a crime without the risk that lower courts will read the elements to define each other.The House report makes it apparent that Congress added the language reasonably foreseeable late in the bills history for a specific purpose, which does not include an intention to amend the meaning of the language direct. As stated earlier, when interpreting a statute, the court should consider history, and purpose. Abramski, 134 S. Ct. at 2267. H.R. 2326 was the original bill that, after some amendments, would become the FTAIA. H.R. 2326: Foreign Trade Antitrust ImprovementsActof1984,Govtrack,https://www.govtrack.us/congress/bills/97/hr2326 (last visited Oct. 10, 2014). The original bill, H.R. 2326, only applied to foreign conduct that effects the United States if such conduct substantially affects commerce within the United States. Id. (emphasis added). After that bill failed, witnesses and commentators expressed their concern that a foreign entity would fall under this standard due to an unpredictable, remote or indirect impact on U.S. Commerce, determined after the fact. H.R. Rep. No. 97-686, at 8 (1982). So, the addition of reasonably foreseeable was added as an afterthought, with no explicit indication by Congress that it is designed for anything other than to quell the fears of foreign entities hoping to do business in the United States. The purpose of adding reasonably foreseeable was to make it apparent that an effect must be predictable by a foreign entity, not to amend the direct requirement.Finally, the House Reports language makes clear that direct, substantial, and reasonably foreseeable are three separate, distinct requirements. The House Report states [a] defendant confronted with evidence that his past conduct has had direct and substantial effects within our country could not argue that continued effects of this type flowing from similar future conduct were not reasonably foreseeable. H.R. Rep. No. 97-686, at 9 (1982). The distinction between a direct effect and a reasonably foreseeable effect would be superfluous if the direct effect merely needed to be a reasonably foreseeable causal nexus between the action and the effect. If that was the case, Congress could have made this clear by requiring a reasonably foreseeable direct effect.The Seventh Circuit ignored plain dictionary and analogous Supreme Court definitions, and instead read distinctive definitions together to promulgate a standard contrary to Congress original definition.The Seventh Circuits test is difficult to apply and will lead to over-application of the law, inconsistent with legislative intent.The immediate consequence definition of direct is more in-tune with Congress intent than the reasonably foreseeable causal nexus test because the former test provides more clarity and predictability for business, whereas the latter test imposes less predictable standards on foreign entities and discourages foreign participation in U.S. commerce.A primary goal by Congress when passing the FTAIA was to provide clarity for the application of the Sherman Act to foreign conduct because predictability fosters foreign investment in U.S. commerce; the immediate consequence test furthers Congresss intent and the reasonably foreseeable nexus test does not. The House Report associated with this bill states that the ultimate purpose of this legislation is to create certainty in assessing the applicability of American antitrust law to international business transactions and proposed transactions . . . . H.R. Rep. No. 97-686, at 9 (1982) (emphasis added). By clarifying the standard for American antitrust law application to foreign conduct, Congress intended to allow American firms greater freedom when dealing with foreign companies in order to encourage a competitive domestic marketplace. Id. at 7. It is not coincidence that the FTAIA was passed in the early 1980s during the Reagan administration, well known for being pro-business and opposed to commercial regulation. Bryan J. Soukup, From Coolidge to Christie: Historical Antecedents of Current Government Officials Dealing with Public Sector Labor Unions, Labor L. J., Dec. 2013, WL 6685867.In direct opposition to the purpose of the FTAIA, to provide clarity, stands the reasonably foreseeable causal nexus test. The reasonably foreseeable causal nexus test is a less stringent approach to the FTAIA that 1) requires a case-by-case fact-intensive analysis, and 2) covers far more activity than the immediate consequence test. Lotes, Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 410 (2d Cir. 2014); Record p. 36. Whether an action in a foreign country has a reasonably foreseeable causal nexus with a particular result in the United States requires an intensive fact-by-fact analysis in the court, inconsistent with the purpose of the FTAIA. A purpose of the FTAIA was to clarify the effects test, which applied the Sherman test if the foreign activity intended and did affect United States commerce. ALCOA, 148 F.2d 416, 443 (2d Cir. 1945); see H.R. Rep. No. 97-686. For instance, the House Report states that in a situation where the unpredictability of anti-trust considerations enter the equation early in a business transaction, the potential transaction may die on the drawing board, and thus act as a deterrent to economic activity. H.R. Rep. No. 97-686, at 6. By sweeping aside the potential detriments to business transactions by stating that [t]he more flexible nature of this test is not a demerit, the Twelfth Circuit entirely ignores the primary purpose for the legislation: to provide clarity and predictability for business. Instead, the Twelfth Circuit would place a fairly loose standard into the hands of U.S. regulators and courts to determine the applicability in a case-by-case basis. Id. If a statute is designed to promote clarity and predictability, the flexible nature of a test that applies that statute is a detriment. Instead, the test should be interpreted along with the purpose of the statute.As stated earlier, the House Report makes clear that the intent was to narrow the application of the Sherman Act to foreign activities to strengthen business, the argument being that less regulation and more predictability provide incentives for foreign investors to invest in the U.S. economy. Promulgating the unpredictable, malleable reasonably foreseeable causal nexus test works directly against the purpose of this legislation, while the rigid, predictable immediate consequence test supports it.On difficult questions, deference should be given to the interests in a foreign nations sovereignty.Even if, after considering the plain language of the statute along with Congress clearly stated intent, the Court still considers the statute to be ambiguous, the statute should be interpreted to be less restrictive on foreign nations under the principles of prescriptive comity. Prescriptive comity is the rule of statutory construction that [the Supreme] Court construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. F. Hoffman-La Roche, Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004). This is a rule of statutory construction derived from customary international law, which the Court assumes Congress ordinarily seeks to follow. Id. Americas antitrust laws, when applied to foreign conduct, can interfere with a foreign nations ability independently to regulate its own commercial affairs. Id. Ultimately, the court presumes that Congress means to minimize their interference with a foreign nations sovereignty. If a statute is ambiguous with two interpretations, one that interferes more with foreign sovereignty and one that interferes less, the court should construe the statute to interfere less absent some sort of express congressional statement of intent. In this case, foreign nations have an interest in criminalizing antitrust activities that occur in their own country. Interpreting the FTAIA to cover significantly more activity than a reasonable interpretation of its plain language suggests would violate the principle of prescriptive comity.In this case, the district court properly denied Plaintiffs Motion for Judgment as a Matter of Law. There remains a reasonable question as to whether Bolton Chemists and Walder Medicals alleged conduct in fixing the price for their product, Viseriol, has an immediate consequence on the United States. Viseriol is manufactured by two facilities, one in South Korea and the other in Germany. Bolton Chemists and Walder Medical then send their product to a facility in Sweden, Tyrell Manufacturing. At this point, both Bolton Chemists and Walder Medical are no longer involved in the manufacturing or production process of Sansa. Tyrell Manufacturing then manufactures Sansa, which only consists of 40%50% Viseriol. The jury properly determined that the miniscule effect in the United States was not an immediate consequence of the alleged conduct, especially when Bolton Chemists and Walder Medical end their involvement in the manufacturing process after their product reaches a manufacturing facility in Sweden.The term direct should be interpreted to require the effect in the United States to arise as an immediate consequence of the foreign action. First, the definition immediate consequence is supported by multiple dictionary definitions from the period that the FTAIA was passed, and the Supreme Court specifically interpreted direct to mean an immediate consequence under a similar antitrust statute. Second, the reasonably foreseeable causal nexus test requires a fact-intensive, case-by-case analysis, which is inconsistent with the explicit legislative intent to increase the predictability regarding what conduct fits within the statute. Finally, even if the Court believes the statute is ambiguous, the statutory principle of prescriptive comity suggests that the immediate consequence test should be used because it intrudes less into foreign sovereignty than the sloppy reasonably foreseeable causal nexus test.CONCLUSION[First issue conclusion omitted] Additionally, adopting the reasonably foreseeable casual nexus test would have a disruptive effect on foreign markets, overstep its bounds by expanding the range of conduct reachable by the Sherman Act, and be inconsistent in application. The statutory text of the FTAIA favors the more appropriate immediate consequence test because it will not lead to an over application of the law that is inconsistent with the legislative intent. Further, if a statute is ambiguous in its meaning, courts should construe the statute to minimize their interference with a foreign nations sovereignty. We respectfully request this court reverse the Twelfth Circuits conclusion on both issues and affirm the district courts decision to deny the Plaintiffs Motion for Judgment as a Matter of Law and Motion for a New Trial.

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