United States v. Hui Hsiung

ORDER

The opinion filed on July 10, 2014, is amended. The amended opinion is filed concurrently with this order.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter.

The petition for panel rehearing and the petition for rehearing en banc are DENIED. Ño further petitions for panel rehearing or petitions for rehearing en banc will be entertained.

OPINION

This criminal antitrust case stems from an international conspiracy between Taiwanese and Korean electronics manufacturers to fix prices for what, is now ubiquitous technology, Liquid Crystal Display panels known as “TFT-LCDs.”1 After five years of secret meetings in Taiwan, sales worldwide including in the United States, and millions of dollars in profits to the participating companies, the conspiracy ended when the FBI raided the offices of AU Optronics Corporation of America (“AUOA”) in Houston, Texas.

The defendants, AU Optronics (“AUO”), a Taiwanese company, and AUOA, AUO’s retailer and wholly owned subsidiary (collectively, “the corporate defendants”), and two executives from AUO, Hsuan Bin Chen, its President and Chief Operating Officer, and Hui Hsiung, its Executive Vice President, were convicted of conspiracy to fix prices in violation of the Sherman Act after an eight-week jury trial.2 Their appeal raises complicated issues of first impression regarding the reach of the *743Sherman Act in a globalized economy. More specifically, they contend that the rule of reason applies to this price-fixing conspiracy because of its foreign character. This proposition, pegged to foreign involvement, does not override the long standing rule that a horizontal price-fixing conspiracy is subject to per se analysis under the antitrust laws. The defendants also urge that because the bulk of the panels were sold to third parties worldwide rather than for direct import into the United States, the nexus to United States commerce was insufficient under the Sherman Act as amended by the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a (“FTAIA”). The defendants’ efforts to place their conduct beyond the reach of United States law and to escape culpability under the rubric of extraterritoriality are unavailing. To begin, the defendants waived their challenge that Morrison v. National Australia Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), displaced the Supreme Court’s landmark case regarding antitrust and extraterritoriality, Hartford Fire Insurance v. California, 509 U.S. 764, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993). In light of the substantial volume of goods sold to customers in the United States, the verdict may be sustained as import commerce falling within the Sherman Act. The verdict may also be sustained under the FTAIA’s domestic effects provision because the conduct had a “direct, substantial, and reasonably foreseeáble effect on United States commerce.” 15 U.S.C. § 6a. We affirm the convictions of all defendants and the sentence of AUO, the only defendant to challenge the sentence.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Conspiracy

From October 2001 to January 2006, representatives from six leading TFT-LCD manufacturers met in Taiwan to “set[ ] the target price” and “stabilize the price” of TFT-LCDs, which were sold in the United States principally to Dell, Hewlett Packard (“HP”), Compaq, Apple, and Motorola for use in consumer electronics. This series of meetings,.in which Chen, Hsiung, and other AUO employees participated, came to be known as the “Crystal Meetings.”

Following each Crystal Meeting, the participating companies produced “Crystal Meeting Reports.” These reports provided pricing targets for TFT-LCD sales, which, in turn, were used by retail branches of the companies as price benchmarks for selling panels to wholesale customers. More specifically, AUOA used the Crystal Meeting Reports that AUO provided to negotiate prices for the sale of TFT-LCDs to United States customers including HP, Compaq, ViewSonic, Dell, and Apple. AUOA employees and executives routinely traveled to the United States offices of Dell, Apple, and HP in Texas and California to discuss pricing for TFT-LCDs based on the targets coming out of the Crystal Meetings. Chen and Hsiung played the most “critical role[s]” in settling price disputes with executives at Dell.

Crystal Meeting participants stood to make enormous profits from TFT-LCD sales to United States technology retailers. During the conspiracy period, the United States comprised approximately one-third of the global market for personal computers incorporating TFT-LCDs, and sales of panels by Crystal Meeting participants to the United States generated over $600 million in revenue. Sales to key United States companies, Dell, Compaq, and HP, were particularly important because_ they were bellwether companies — if they accepted a price increase, “the entire market could also accept the price increase.”

*744II. Proceedings in the District Court

The defendants were indicted in the Northern District of California and charged with one count of conspiracy to fix prices for TFT-LCDs in violation of the Sherman Act, 15 U.S.C. § 1 et seq. The indictment also contained a sentencing allegation pursuant to the Alternative Fine' Statute, 18 U.S.C. § 3571(d), alleging that AUO and AUOA, along with their cocon-spirators, “derived gross gains of at least $500,000,000.”

The defendants twice moved to dismiss the indictment. The district court denied the first motion and rejected the arguments that (i) the rule of reason should apply pursuant to Metro Industries v. Sammi Corp., 82 F.3d 839 (9th Cir.1996), and (ii) the government was required to plead and prove that the defendants acted with knowledge that their conduct would have anticompetitive effects on United States commerce. The district court held that the rule of reason did not apply because horizontal price-fixing historically has been considered a per se violation of the Sherman Act, Metro Industries notwithstanding.

The district court also denied the second motion to dismiss the indictment and rejected the argument that the indictment was deficient for failing to allege an “intended and substantial effect” on United States commerce as required by the FTAIA. According to the district court, “[b]y its express terms, the [FTAIA] is inapplicable to [the] import activity conducted by defendants.” The district court also concluded that the FTAIA did not bar prosecution of this price-fixing conspiracy involving both foreign and domestic conduct.

At trial, the government presented evidence regarding the defendants’ extensive involvement in the Crystal Meetings and their sales of price-fixed TFT-LCDs to customers in the United States, including evidence that the defendants specifically targeted United States technology companies, principally, Apple, Compaq, and HP. Government experts testified regarding the financial impact of those sales, specifically that the defendants derived hundreds of millions of dollars in profits from sales of price-fixed TFT-LCDs in the United States.

In closing arguments, defense counsel argued, among other things, that the government had not met its burden of proving venue by a preponderance of the evidence. On rebuttal, the government responded and directly addressed venue for the first time, explaining that venue was appropriate in the Northern District of California because “[t]he conspirators’ negotiation of price-fixed panels with HP in Cupertino were acts in furtherance of this conspiracy.” Defense counsel objected on the ground that the government’s representation misstated the evidence. The district court overruled the objection, relying on the government’s representation that this fact was in evidence.

During the jury instruction conference, as well as in pretrial proceedings, the reach of the Sherman Act to conduct occurring outside of the United States was a contentious subject. In describing the application of the Sherman Act, the district judge settled on the following charge:

The Sherman Act [ ] applies to conspiracies that occur entirely outside the United States if they have a substantial and intended effect in the United States. Thus, to convict the defendants you must find beyond a reasonable doubt one or both of the following:

(A) that at least one member of the conspiracy took at least one action in furtherance of the conspiracy within the United States, or

(B) that the conspiracy had a substantial and intended effect in the United States.

*745The jury found the defendants guilty of conspiracy to fix prices in violation of the Sherman Act. The jury also found that the “combined gross gains derived from the conspiracy by all the participants in the conspiracy” were “$500 million or more.”

The defendants moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, and, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33. They argued that (i) the government had failed to establish venue in the Northern District of California, (ii) the rule of reason should have applied pursuant to Metro Industries, (iii) the defendants did not have notice of the unlawfulness of their conduct, (iv) the government had failed to prove an exception to the FTAIA, and (v) the evidence was insufficient as a matter of law to establish the $500 million or more loss amount. AUOA also claimed that the government did not prove that any agent of AUOA knowingly and intentionally participated in the price-fixing agreement. The district court denied the motions.

The district court sentenced Hsiung and Chen principally to a term of thirty-six months’ imprisonment and a $200,000 fine each. The district court sentenced the corporate defendants principally to a three-year term of probation with conditions. The district court also imposed a $500 million fine on AUO. All of the defendants appeal their convictions, and AUO appeals its sentence.

ANALYSIS

I. Venue Challenge

As a preliminary matter, the defendants appeal on the basis of improper venue.3 Four issues are subsumed in the venue challenge: (i) our standard of review, (ii) the proper standard for proof at trial, (iii) whether the government’s representation in closing arguments constituted prosecu-torial misconduct, and (iv) whether the government proved venue.

Although the defendants suggest otherwise, we review de novo whether venue was proper. United States v. Liang, 224 F.3d 1057, 1059 (9th Cir.2000). The defendants argue that the standard of review should be whether “a rational jury could not fail to conclude that ... the evidence establishes venue,” because the district court “in substance” decided the issue of venue as a matter of law when it overruled the objection to the government’s representation in rebuttal that ' negotiations of price-fixed TFT-LCDs occurred in the Northern District of California. See United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir.2012). That’s a mouthful. Nonetheless, the district court’s evidentiary ruling did not decide venue as a matter of law. See id. at 1112-13, 1120 (finding venue decided as a matter ■ of law when the jury did not find venue proper, and the district court ruled that venue was proper on a Rule 29 motion). The proper standard of review remains de novo.

It is well established that a preponderance of the evidence is the proper standard of proof for venue. See, e.g., id. at 1120. The defendants’ position that the standard is beyond a reasonable doubt has no support in the law. The district court appropriately instructed the jury on the standard of proof for venue.

Next, we consider the government’s timing in addressing venue. The *746issue of venue was affirmatively highlighted for the first time in the defendants’ closing argument, and the government then responded in its rebuttal argument. The defendants argue that it was prosecu-torial misconduct and reversible error for the prosecutor to represent in rebuttal that “[t]he conspirator’s negotiation of price-fixed panels with HP in Cupertino were acts in furtherance of this conspiracy.” Neither the timing of this statement nor its substance constitutes misconduct. The defendants accuse the government of sandbagging by relying on “late-breaking theories” of venue in rebuttal. However, the defense invited a response by raising the venue issue in the first place. A prosecutor may respond in rebuttal to an attack made in the defendant’s closing argument. See Lawn v. United States, 355 U.S. 339, 359 n. 15, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). The substance of the government’s response was not new evidence or allegations; instead, it was permissible argument based on the indictment’s allegations and the evidence produced at trial. The indictment alleged .that the charged conspiracy “was earned out, in part, in the Northern District of California.” Trial testimony established that AUO employees negotiated prices for TFT-LCDs with HP in Cupertino, California. See United States v. Reyes, 660 F.3d 454, 462 (9th Cir.2011) (“It is certainly within the bounds of fair advocacy for a prosecutor, like any lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes in good faith might be true.” (quoting United States v. Blueford, 312 F.3d 962, 968 (9th Cir.2002))). The jury also was instructed that closing arguments were not evidence. Accordingly, the prosecutor did not commit misconduct by making these statements during closing argument, and the district court properly overruled the defendant’s objection.

Finally, the evidence referenced by the government was sufficient to establish venue by a preponderance of the evidence. “It is by now well settled that venue on a conspiracy charge is proper where ... any overt act committed in furtherance of the conspiracy occurred.” United States v. Gonzalez, 683 F.3d 1221, 1224 (9th Cir.2012). In addition to the HP negotiations, the government introduced evidence that AUOA representatives negotiated sales of price-fixed TFT-LCDs with Apple in the Northern District of California and that AUOA maintained offices in the Northern District of California from which it conducted price negotiations by e-mail and phone. This evidence is sufficient to establish by a preponderance of the evidence that overt acts in furtherance of the conspiracy occurred in the Northern District of California. Thus,, venue was proper.

II. Jury Instruction Challenge And Extraterritoriality op the Sherman Act

The Supreme Court’s seminal case on antitrust and foreign conduct is Hartford Fire, in which the Court held that “the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.” 509 U.S. at 796, 113 S.Ct. 2891. The district court instructed the jury to this effect: “to convict the defendants you must find beyond a reasonable doubt one or both of the following [](A) that at least one member of the conspiracy took at least one action in furtherance of the conspiracy within the United States, or (B) that the conspiracy had a substantial and intended effect in the United States.”

Before trial, the defendants moved to dismiss the indictment on the basis that it did not allege adequately the Hartford Fire “substantial and intended effects” test. At the jury instructions conference, the defendants urged the district court to *747give the Hartford Fire instruction, while also claiming that part A of the instruction was erroneous because it permitted the jury to convict on the basis of one domestic act. Although the defendants contested part A, they all concurred that part B “is a correct statement of the Hartford Fire requirements for establishing extraterritorial jurisdiction over foreign anticompeti-tive conduct, and should be given.”

In an about face, in post-trial motions, the defendants rejected the principle of Hartford Fire and argued for the first time that the Sherman Act cannot be used to prosecute foreign conduct because there is no affirmative indication that the Sherman Act applies extraterritorially. They cited to the Supreme Court’s decision in Morrison, which addressed the extraterritorial reach of the federal securities laws.

At the time of the jury instructions conference, in February 2012, Morrison had been on the books for more than eighteen months. Commentary about the case was extensive. See, e.g., Nathan Koppel & Ashby Jones,. Securities Ruling Limits Claims of Fraud, Wall St. J., Sept. 28, 2010, at Cl; Hogan Lovells, US Supreme Court rejects extraterritorial reach of Securities Exchange Act antifraud provisions, June 30, 2010. The opinion was hardly breaking news. In light of the defendants’ request that the court give the Hartford Fire jury instruction and their untimely objection to the instruction in post-trial motions, we hold that the defendants waived the argument that Morrison overruled Hartford Fire and that an extraterritoriality defense bars their convictions.

Because the defendants were the ones who proposed the instruction in the first place, they cannot now claim that giving the instruction was error. The defendants considered the effects of the instruction and intentionally relinquished the right to argue that the Sherman Act does not apply extraterritorially. See United States v. Baldwin, 987 F.2d 1432, 1437 (9th Cir.1993) (“Where the defendant himself proposes the jury instruction he later challenges on appeal, we deny review under the invited error doctrine.”). To be sure, the defendants point out that they raised the extraterritoriality argument in post-trial motions. However, the complete reversal of their position after the verdict and in post-trial motions “was so untimely as to amount to a waiver,” with respect to the Morrison objection to the jury instruction. See United States v. Stapleton, 600 F.2d 780, 782 (9th Cir.1979) (internal quotation marks omitted). This case falls squarely within the “invited error” doctrine, which covers “known rights that have been intentionally relinquished or abandoned.” 4 United States v. Perez, 116 F.3d 840, 842 (9th Cir.1997) (en banc) (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 *748(1993)) (internal quotation marks and alterations omitted). This is not a case of forfeiture, where defense counsel simply failed “to make a timely assertion of a [claimed] right.” Id. at 845. Waiver occurred here because, despite having knowledge of the law, the defendants “proposed or accepted” what they now claim to be “a flawed instruction.” See id. That this election was knowing is underscored by the defendants’ challenge to part A of the instruction versus their support for part B, the Hartford Fire formulation.

As to part A of the instruction, the defendants objected on the basis that it “would render Hartford Fire entirely nugatory, as, having proven the most minimal act in furtherance of a charged agreement, the government would never have to prove an intended and substantial effect on U.S. commerce.” In support of this argument, the defendants rely on the following statement in Hartford Fire: “[I]t is well established by now that the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States,” 509 U.S. at 796, 113 S.Ct. 2891, and United States v. Aluminum Co. of America, 148 F.2d 416, 444 (2d Cir.1945) (L. Hand, J.). As to part B, the defendants agreed that the instruction was accurate.

We have held that the FTAIA’s requirement that the defendants’ conduct had a “direct, substantial, and reasonably foreseeable effect” on domestic commerce displaced the intentionality requirement of Hartford Fire where the FTAIA applies. See United States v. LSL Biotechnologies, 379 F.3d 672, 678-79 (9th Cir.2004). To the extent that the prosecution was not subject to the FTAIA, the jury instructions as a whole belie the assertion that the jury could have convicted on the basis of one, unintentional domestic act. See United States v. Frega, 179 F.3d 793, 806 n. 16 (9th Cir.1999) (“In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury’s deliberation.”). Immediately following the Hartford Fire instruction, the district court instructed the jury that it must find the following beyond a reasonable doubt:

[T]hat the members of the conspiracy engaged in one or both of the following activities:

(A) fixing the price of TFT-LCD panels targeted by the participants to be sold in the United States or for delivery to the United States; or

(B) fixing the price of TFT-LCD panels that were incorporated into finished products such as notebook computers, desktop computer monitors, and televisions, and that this conduct had a direct, substantial, and reasonably foreseeable effect on trade or commerce in those finished products sold in the United States or for delivery to the United States. In determining whether the conspiracy had such an effect, you may consider the total amount of trade or commerce in those finished products sold in the United States or for delivery to the United States; however, the government’s proof need not quantify or value that effect.

The effect of foreign conduct in the United States was a central point of controversy throughout the trial. Nonetheless, the conduct always was linked, as in the above instruction, to targeting for sale or delivery in the United States. Part A of the instruction required the jury to find that the defendants fixed the prices of TFT-LCDs “targeted” for sale or delivery in the United States. This “targeting” language subsumed intentionality. See Oxford English Dictionary 642 (2d ed.1989) (defining “targeted” as “[designated or chosen as a target”). There is no *749way that the defendants could have unintentionally designated or chosen the United States market as a target of the conspiracy. Viewing the instructions as a whole, nothing misled the jury as to its task. The Hartford Fire jury instruction was neither a surprise nor was it improper. Part A of the instruction passes legal muster, and the defendants solicited part B.

III. Per Se Liability for Horizontal Price-Fixing

Having determined that the prosecution was not barred by an extraterritoriality defense, we address the appropriate standard for judging liability in this price-fixing scheme. For over a century, courts have treated horizontal price-fixing as a per se violation of the Sherman Act. See, e.g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 218, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (“[F]or over forty years this Court has consistently and without deviation adhered to the principle that price-fixing agreements are unlawful per se under the Sherman Act and that no showing of so-called competitive abuses or evils which those agreements were designed to eliminate or alleviate may be interposed as a defense.”). Twice in recent years, the Supreme Court reiterated this principle. The directive in Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 893, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007), is unequivocal: “A horizontal cartel among competing manufacturers or competing retailers that decreases output or reduces competition in order to increase price is, and ought to be, per se unlawful.” And just last year, the Chief Justice emphasized that “it is per se unlawful to fix prices under antitrust law.” F.T.C. v. Actavis, Inc., — U.S. -, 133 S.Ct. 2223, 2239, 186 L.Ed.2d 343 (2013) (Roberts, C.J., dissenting on other grounds).

Consistent with Supreme Court precedent, the district court treated this price-fixing case as governed by the per se rule. The defendants claim that the district court erred by not adopting the rule of reason as the benchmark and that the indictment, jury instructions, and proof were deficient under rule of reason analysis. We hold that the price-fixing scheme as alleged and proven is subject to per se analysis under the Sherman Act.

According to the defendants, this is not a per se case because under Metro Industries, “application of the per se rule is not appropriate where the conduct in question occurred in another country.” 82 F.3d at 844-45. This approach invites us to ignore the significant differences between Metro Industries and this case. We decline to do so.

To begin, Metro Industries was not a price-fixing case; rather, it involved an unusual horizontal market division for stainless steamers by a group of Korean companies. 82 F.3d at 843-44. The Korean Holloware Association (the “Association”) established a design committee consisting of Korean manufacturers, traders, patent attorneys, and government officials. Id. at 841. The Association prohibited trading companies from holding a patent to a design, unless it was held jointly with a manufacturing company. Id. When Metro Industries, a manufacturer, experienced a disruption in stainless steamer supply from its trading counterpart, Sammi Cor-, poration, the Association blocked its attempts to partner with another trading company. Id. at 841-42. Based on that interference, Metro Industries brought suit against Sammi and its American subsidiaries alleging, among other claims, violations of §§ 1 and 2 of the Sherman Act. Id. at 842; see 15 U.S.C. §§ 1, 2. The district court granted summary judgment *750in the defendants’ favor and denied Metro Industries’s cross-motion for summary-judgment on the claim “that the Korean design registration system under which Sammi had the exclusive rights to manufacture a particular steamer design constituted a market division that was illegal per se under § 1 of the Sherman Act.” Metro Industries, 82 F.3d at 843.

Our court affirmed and held that because the market division at issue was “not a classic horizontal market division agreement,” the rule of reason applied. Id. at 844 (emphasis added). We then went on to write that even if the registration system • constituted a market division that would ordinarily be treated as a per se violation of the Sherman Act, the rule of reason applied because the allegedly unlawful conduct occurred in a foreign country. Id. at 844-45.5

Unlike Metro Industries, this case centers on a classic horizontal price-fixing scheme. Also unlike Metro Industries, in which there was “no evidence of actual injury to competition. in the United States,” 82 F.3d at 848, the voluminous evidence here documents substantial effects in the United States. The conduct here did not occur in a solely foreign bubble. Although the agreement to fix prices occurred in Taiwan, the sale of price-fixed TFT-LCDs occurred in large part in the United States. So, too, did part of the conspiracy to carry out that price-fixing agreement. We are unwilling to extend Metro Industries to a case where both part of the conduct and the effects of that conduct occurred in the United States.

In invoking the per se rule for horizontal price-fixing, we join the reasoning of other circuits. See, e.g., United States v. Nippon Paper Indus. Co., 109 F.3d 1, 2-3, 7, 9 (1st Cir.1997) (upholding an indictment alleging a per se violation of the Sherman Act against a Japanese fax paper manufacturer that entered into a price-fixing conspiracy overseas for fax paper that was sold to companies in the United States at fixed prices.). The district court appropriately rejected the rule of reason defense.6

IV. The Foreign Trade Antitrust Improvements Act

The international implications of this case are not limited to the challenges to the jury instructions or the per se rule. The defendants also argue that the indictment and proof did not satisfy the requirements of the FTAIA. The FTAIA provides that the Sherman Act “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 *751commerce with foreign nations.... ” 15 U.S.C. § 6a.

Although the statute is a web of words, it boils down to two principles. First, the Sherman Act applies to “import trade or import commerce” with foreign nations. Id. Put differently, the FTAIA does not alter the Sherman Act’s coverage of import trade; import trade is excluded from the FTAIA altogether. Second, under the FTAIA, the Sherman Act does not apply to nonimport trade or commerce with foreign nations, unless the domestic effects exception is met. Id. For the Sherman Act to apply to nonimport trade or commerce with foreign nations, the conduct at issue must have a “direct, substantial, and reasonably foreseeable effect — (A) on trade or commerce which is not trade or commerce with foreign nations.... ” Id.

Congress enacted the FTAIA in 1982 in “response] to concerns regarding the scope of the broad jurisdictional language in the Sherman Act.” In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 985 (9th Cir.2008). As the Supreme Court explained, “[t]he FTAIA seeks to make clear to American exporters (and to firms doing business abroad) that the Sherman Act does not prevent them from entering into business arrangements (say, joint-selling arrangements), however anticompetitive, as long as those arrangements adversely affect only foreign markets.” F. Hoffmann-La Roche Ltd. v. Empagran S.A, 542 U.S. 155, 161, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (citing H.R.Rep. No. 97-686, at 1-3, 9-10 (1982), U.S.Code Cong. & Admin. News 1982, 2487, 2487-2488, 2494-2495). Empagran teaches that the FTAIA removes from the reach of the Sherman Act “(1) export activities and (2) other commercial activities taking place abroad, unless those activities adversely affect domestic commerce, imports to the United States, or exporting activities of one engaged in such activities within the United States.” 542 U.S. at 161, 124 S.Ct. 2359. We now consider the multiple legal issues the FTAIA challenge raises.

A. Jurisdiction Versus Merits

Whether the FTAIA “affects the subject-matter relates to the scope of coverage of the antitrust laws,” is our first inquiry. Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845, 851 (7th Cir.2012) (en banc). We start here because “[a] court has a duty to assure itself of its own jurisdiction, regardless of whether jurisdiction is contested by the parties,” Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1125 (9th Cir.2010), and “the Supreme Court has emphasized the need to draw a careful line between true jurisdictional limitations and other types of rules,” Minn-Chem, 683 F.3d at 851-52 (citing Morrison 561 U.S. 247, 130 S.Ct. 2869 and Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011)). We hold that the FTAIA is not a subject-matter jurisdiction limitation on the power of the federal courts but a component of the merits of a Sherman Act claim involving nonimport trade or commerce with foreign nations.

We have not definitively addressed this issue in the past. In LSL Biotechnologies, 379 F.3d at 680, we rejected the argument that foreign conduct having only a “substantial” effect on United States commerce satisfied the FTAIA and held that the FTAIA “created [a] jurisdictional test” requiring “a direct, substantial, and reasonably foreseeable effect” on domestic commerce. Id. at 679 (internal quotation marks omitted). Despite our use of the term “jurisdictional,” we did not analyze whether the FTAIA provided a-jurisdictional limitation on the power of the federal courts nor did we discuss our use of the *752term “jurisdictional.” Seven years later, in In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, we observed that “[i]t is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from the federal courts ... or as simply establishing a limited cause of action” and “decline[d] to resolve the question.” 546 F.3d at 985 n. 3.

■As a consequence of clarification by the Supreme Court, much has changed since LSL Biotechnologies. The Court has made a point of distinguishing between a true jurisdictional limitation and a merits determination, noting that “Courts — including this Court — have sometimes mis-characterized claim-processing rules or elements of a cause of action as jurisdictional limitations, particularly when that characterization was not central to the case, and thus did not require close analysis.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010). The Court emphasized that “[its] recent cases evince a marked desire to curtail [] drive-by jurisdictional rulings, which too easily can miss the critical difference^] between true jurisdictional conditions and nonju-risdictional limitations on causes of action.” Id. (internal quotation marks and citation omitted).

As the Court framed the issue in Morrison, “to ask what conduct § 10(b) [of the Securities Exchange Act] reaches is to ask. what conduct § 10(b) prohibits, which is a merits question. Subject-matter jurisdiction, by contrast, refers to a tribunal’s power to hear a case.” 561 U.S. at 254, 130 S.Ct. 2869 (internal quotation marks omitted). The FTAIA, like § 10(b) of the Securities Exchange Act, plainly “re-mov[es conduct] from the Sherman Act’s reach.” Empagran, 542 U.S. at 161,