Antitrust, comity, international law, horizontal conspiracy, prescriptive comity, foreign defendants, American consumers, import commerce, international comity grounds, separation of powers, abstention defenses, jurisdiction


In re Vitamin C Antitrust Litigation, recently decided by the Second Circuit, sets a grave precedent for American plaintiffs seeking redress for antitrust injuries wrought by foreign defendants. The case involved a group of Chinese manufacturers and exporters of vitamin C, who conspired to fix prices and restrict output in the export market, injuring American consumers in import commerce. The foreign manufacturers conceded that they had colluded in fixing prices and restricting output, in flagrant violation of U.S. antitrust law. And yet, with the assistance of the Chinese government—intervening as amicus curiae—the defendants were successfully able to argue, on appeal from a jury finding against them, that “prescriptive comity”—a species of international comity doctrine—justified the Second Circuit’s dismissal of the claim. The district court below had erred, on international comity grounds, in declining to abstain from exercising jurisdiction over the claim.

This Note assesses the outcome of In re Vitamin C Antitrust Litigation, concluding that it was incorrectly decided in several respects. This Note then proposes two means by which prevailing “prescriptive” comity frameworks like the Second Circuit’s might be reconfigured to minimize the separation of powers tensions inherent in prescriptive comity doctrine, and provide courts with a clear, common-sense approach to evaluating future abstention defenses rooted in prescriptive comity.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.