Third Circuit disposition — 024272p1-pdf

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
____________
No. 02-4272
____________
IN RE: AUTOMOTIVE REFINISHING
PAINT ANTITRUST LITIGATION
BASF AG and BASF COATINGS AG,
Appellants
____________
Appeal from the United States District
Court
For the Eastern District of Pennsylvania
D.C. No.: MDL 1426
District Judge: Honorable R. Barclay
Surrick
____________
Argued: December 15, 2003
Before: ROTH, McKEE, and ROSENN,
Circuit Judges
(Filed February 13, 2004 )
Stephen Fishbein (Argued)
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Edward W. Madeira, Jr.
Matthew J. Hamilton
Pepper Hamilton
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
Raymond A. Just
Shearman & Sterling
55 California Street
20th Floor
San Francisco, CA 94104
Counsel for Appellant
Geoffrey C. Hazard, Jr. (Argued)
University of Pennsylvania
The Law School
3400 Chestnut Street
Philadelphia, PA 19104-6204
Gerald J. Rodos
Barrack, Rodos & Bacine
2001 Market Street
3300 Two Commerce Square
Philadelphia, PA 19103
Warren Rubin
Law Offices of Bernard M. Gross
1515 Locust Street, Suite 200
Philadelphia, PA 19102
Joseph C. Kohn
Robert J. LaRocca
Kohn, Swift & Graf
One South Broad Street, Suite 2100
Philadelphia, PA 19107
Howard I. Langer
Columb, Honik & Langer
121 South Broad Street, 9th Floor
Philadelphia, PA 19107
Counsel for Appellees
William T. Hangley
Hangley, Aronchick, Segal & Pudlin
One Logan Square, 27th Floor
Philadelphia, PA 19103
Counsel for Amicus-Appellant
Fedr. German Ind.

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2
James J. Rodgers
Dilworth Paxson
1735 Market Street
3200 The Mellon Bank Center
Philadelphia, PA 19103
Counsel for Amicus-Appellant
Fed. Republic Germany
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
This certified interlocutory
appeal, arising out of alleged unlawful
price-fixing by both domestic and
foreign corporations, raises questions of
considerable importance in antitrust
litigation involving foreign nationals.
Three of the issues are of first impression
to this Court. The first issue is whether
worldwide service of process authorized
under Section 12 of the Clayton Act, 15
U.S.C. § 22, upon foreign corporations is
independent of the specific venue
provision contained in that statute. The
second issue is whether a federal court’s
personal jurisdiction over a foreign
corporation in antitrust litigation may be
predicated on the foreign corporation’s
contacts with the United States as a
whole (national contacts analysis), rather
than with the specific forum in which the
court sits (local contacts analysis). The
final issue is whether jurisdictional
discovery from foreign nationals may
proceed under the Federal Rules of Civil
Procedure without first resorting to the
Hague Convention on the Taking of
Evidence Abroad in Civil or Commercial
Matters (Hague Convention or
Convention). 23 U.S.T. 2555, reprinted
in 28 U.S.C. § 1781 Note.
The District Court denied the
motions to dismiss for lack of personal
jurisdiction and the joint motion for a
protective order filed by two German
corporations, BASF Aktiengesellschaft
(BASF AG) and BASF Coatings
Aktiengesellschaft (BASF Coatings)
(collectively “appellants”), defendants in
the underlying antitrust litigation. The
District Court construed Section 12 of
the Clayton Act as authorizing
worldwide service of process
independently of the specific venue
provision contained in that statute. The
Court also held that personal jurisdiction
over the foreign corporations would be
measured on their contacts with the
United States as a whole, rather than with
the forum state. The Court finally
rejected a rule favoring first resort to
Hague Convention procedures for
jurisdictional discovery of foreign
defendants. BASF AG and BASF
Coatings timely appealed. We affirm.
I.
The underlying federal antitrust
class litigation involves sixty-three
actions filed in five states, Pennsylvania,
New Jersey, Ohio, Kentucky, and
Delaware, by private parties. Those
actions were transferred to, and
consolidated in, the United States District
Court for the Eastern District of
Pennsylvania for pre-trial purposes by
the Judicial Panel on Multidistrict
Litigation.1 The class action complaint
1 The defendants, in addition to the two
appellants here, are: PPG Industries, Inc.;
E.I. DuPont de Nemours and Company;
DuPont Performance Coatings, Inc.;
Sherwin-William, Co.; Sherwin-William
Automotive Finishes Corporation; Akzo
Nobel Car Refinishers B.V., a Dutch
company; Akzo Nobel Coatings, Inc., a

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3
alleges that from 1993 to at least
December 31, 2000, the foreign and
domestic defendants conspired to raise
and maintain the prices of automotive
refinish paint throughout the United
States. All defendants, except the
appellants, have stipulated to
certification of a national class consisting
of all direct purchasers of automotive
refinishes from the defendants.
The appellants filed motions to
dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(2) for lack of personal
jurisdiction. In support of their motions
to dismiss, the appellants submitted
affidavits stating that they did not have
presence in the state of Pennsylvania and
never sold any automotive refinish paint
to any customers in Pennsylvania. The
plaintiffs replied that the appropriate
forum for measuring the appellants’
contacts for purposes of personal
jurisdiction is the United States as a
whole, rather than the forum state of
Pennsylvania. The plaintiffs opposed the
motions to dismiss and also served
jurisdictional discovery requests pursuant
to the Federal Rules of Civil Procedure,
seeking production of documents
concerning the appellants’ contacts with
the United States as a whole.
The plaintiffs submitted publicly
available information to show a threshold
case of personal jurisdiction based on the
appellants’ contacts with the United
States and support their request for
jurisdictional discovery.2 In response to
the plaintiffs’ request for jurisdictional
discovery, the appellants filed a joint
motion for a protective order, contending
that the plaintiffs’ discovery request was
overly broad and burdensome. They
argued also that any jurisdictional
discovery should proceed first under the
Hague Convention, of which the United
States and Germany are signatories.
The reasons proffered by the
appellants’ expert, Martin Reufels, were
that Germany, unlike the United States,
viewed the gathering of evidence as a
judicial, rather than private, function.
Therefore, Germany had a sovereign
U.S. corporation; and BASF
Corporation, a U.S. corporation based in
New Jersey, which is part of the BASF
Group, a global network of corporations
that include the two German
corporations, which are the only
appellants in this interlocutory appeal.
2 The District Court noted the following
facts submitted by the plaintiffs: the
appellants are the holders of numerous
patents in the United States; in its
publicly released documents, such as the
forms filed with the Securities and
Exchange Commission and annual
reports, and its web site, BASF AG
presents itself as part of a globally
integrated group, BASF or BASF Group,
consisting of BASF AG, the parent
corporation in the group and its 153
consolidated subsidiaries; BASF AG
owns 100 percent of the shares of BASF
Corporation, a domestic corporation
located in New Jersey; BASF AG’s
publicly released documents show that it
sold approximately $1.5 billion in goods
to its wholly owned subsidiary, BASF
Corporation, in 2000; according to
BASF’s website, BASF Coatings has a
“significant market position[ ] in North
America”; BASF Coatings maintains an
office in Michigan; and according to
BASF AG’s 2001 annual report, the
BASF Group explicitly endorses the
“exchange of staff among BASF Group
companies” as being “critical” in
achieving its worldwide corporate goals.

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interest in keeping discovery conducted
within its borders in conformity with its
laws. According to Reufels, compelling
the appellants to produce documents
pursuant to the Federal Rules of Civil
Procedures would offend Germany’s
sovereign interests.
In its order and careful
accompanying opinion, the District
Court, Surrick, J., denied without
prejudice the appellants’ motions to
dismiss. Rejecting the appellants’
contrary arguments, the Court construed
Section 12 of the Clayton Act as
authorizing worldwide service of process
independently of the specific venue
provision contained in that statute. The
Court held that the relevant forum for
purposes of proof of personal jurisdiction
was the United States as a whole, rather
than the forum state of Pennsylvania.
The Court concluded that the plaintiffs
had made a threshold showing of
personal jurisdiction that warranted
jurisdictional discovery.3 In a separate
order and accompanying opinion, the
Court denied the appellants’ joint motion
for a protective order requiring the
plaintiffs to conduct their jurisdictional
discovery first under the Hague
Convention procedures, rather than the
Federal Rules of Civil Procedure.
Both the District Court and this
Court granted the appellants’ petition for
interlocutory appeal pursuant to 28
U.S.C. § 1292(b). The appellants raise
two issues for review on this
interlocutory appeal. The first issue is
whether a plaintiff may invoke the
worldwide service of process provision
contained in Section 12 of the Clayton
Act and, thus, national contacts analysis,
without satisfying the specific venue
provision also contained in that statute.
The second issue is whether a plaintiff
may be permitted to seek jurisdictional
discovery from foreign defendants under
the Federal Rules of Civil Procedure
without first resorting to the Hague
Convention. We agree with the District
Court and answer both in the
affirmative.4
II.
The first issue raised by the
3 The appellants have not appealed from
the Court’s ruling that the plaintiffs have
shown a prima facie case of personal
jurisdiction. Accordingly, we do not
review that ruling. “Prior to discovery, a
plaintiff may defeat a motion to dismiss
based on legally sufficient allegations of
jurisdiction.” In re Magnetic Audiotape
Antitrust Litig., 334 F.3d 204, 206 (2d
Cir. 2003). The District Court rejected
the plaintiffs’ arguments that the
jurisdictional contacts of BASF
Corporation, the wholly owned domestic
subsidiary of BASF AG, should be
imputed to BASF AG and that the
jurisdictional contacts of the appellants’
alleged co-conspirators should be
imputed to the appellants.
4 The District Court has original federal
question subject matter jurisdiction under
28 U.S.C. § 1331 over this class action
brought under 15 U.S.C. § 1 (section 1 of
the Sherman Act) and 15 U.S.C. §§ 15
and 26 (sections 4 and 16 of the Clayton
Act). We have appellate jurisdiction
under 28 U.S.C. § 1292(b) over this
interlocutory appeal. Because the
certified issues on appeal involve pure
questions of law, we review the District
Court’s rulings de novo. Bowers v.
National Collegiate Athletic Ass’n, 346
F.3d 402, 410 (3d Cir. 2003).

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appellants involves two conceptually
distinct, though intertwined, sub-issues.
One is whether the District Court erred in
ruling that the service of process
provision contained in Section 12 of the
Clayton Act is independent of the venue
provision also contained in that statute.
Two is whether the Court erred in ruling
that in federal antitrust litigation,
personal jurisdiction should be assessed
on the basis of the appellants’ contacts
with the United States as a whole
(national contacts analysis), rather than
with the forum state (local contacts
analysis). The two sub-issues are
intertwined because if there is no specific
venue limitation in federal antitrust
litigation involving a foreign corporate
defendant, the defendant can be sued in
any federal district court based on its
aggregate contacts with the United States
as a whole. Because they are intertwined
and because the appellants present them
as a single integrated issue, we discuss
them together.5
A.
Section 12 of the Clayton Act
provides:
Any suit, action, or proceeding
under the antitrust laws against a
corporation may be brought not
only in the judicial district
whereof it is an inhabitant, but
also in any district wherein it may
be found or transacts business;
and all process in such cases may
be served in the district of which
it is an inhabitant, or wherever it
may be found.
15 U.S.C. § 22 (emphasis added).6
5 The Committee to Support the Antitrust
Laws, a nonprofit corporation based in
the District of Columbia, has submitted
an amicus curiae brief in support of the
plaintiffs’ position on the two certified
issues. The amicus curiae briefs in
support of the appellants’ position,
submitted by the Federal Republic of
Germany and the Federation of German
Industries, do not address the first
certified issue.
6 Section 12 permits venue in any federal
district in which a corporation is an
“inhabitant,” may be “found,” or
“transacts business.” Those terms are
defined as follows:
Being an “inhabitant” is held to
mean incorporated under the laws
of that jurisdiction. E.g., Aro
Manufacturing Co. v. Automobile
Body Research Corp., 352 F.2d
400, 404 (1st Cir. 1965), cert.
denied, 383 U.S. 947, 86 S. Ct.
1199, 16 L. Ed. 2d 210 (1966).
Being “found” in a district is
generally equated with “doing
business” there, and requires
greater contacts than does
“transacting business.” E.g.,
Wood v. Santa Barbara Chamber
of Commerce, Inc., 507 F. Supp.
1128 (D. Nev. 1980); Grappone,
Inc. v. Subaru of America, Inc.,
403 F. Supp. 123 (D.N.H. 1975);
Friends of Animals Inc. v.
American Veterinary Medical
Ass’n, 310 F. Supp. 620
(S.D.N.Y. 1970).
Gen. Elec. Co. v. Bucyrus-Erie Co., 550
F. Supp. 1037, 1041 n.5 (S.D.N.Y.
1982). A corporation is “found” where it
has “presence” and “continuous local
activities” in the district. Caribe Trailer
Systems, Inc. v. Puerto Rico Maritime
Shipping Auth., 475 F. Supp. 711. 716

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6
Section 12, a long sentence, consists of
two separate clauses, the first relating to
venue and the second concerning service
of process and, therefore, personal
jurisdiction. It is undisputed that the
second clause authorizes nationwide,
indeed worldwide, service of process on
a defendant corporation in federal
antitrust litigation. The clause provides
that the defendant may be served
“wherever it may be found,” that is,
wherever it is “doing business.” See,
e.g., Go-Video, Inc. v. Akai Elec. Co.,
Ltd., 885 F.2d 1406, 1413 (9th Cir. 1989)
(Section 12 “authorizes worldwide
service of process”).
The parties dispute whether the
two clauses of Section 12 should be read
as an integrated whole or independently
of each other. Specifically, they dispute
whether the venue provision contained in
the first clause of Section 12 must be
satisfied before the plaintiffs could avail
themselves of the authorization of
worldwide service of process contained
in the second clause. As explained by
one court:
[t]he dispute centers on whether
the jurisdiction provision
operates independently from the
venue provision, specifically,
whether “in such cases” in the
second clause refers to “any suit,
action, or proceeding under the
antitrust laws against a
corporation” or only to antitrust
actions against corporations
brought in a judicial district in
which the corporation is either an
“inhabitant,” “may be found” or
“transacts business.” If the first
interpretation is adopted, plaintiffs
can rely on 28 U.S.C. § 1391(d)
[the Alien Venue Statute] which
provides for venue in antitrust
actions against foreign
corporations “in any district” and
on the second clause of Section 12
for personal jurisdiction over
defendants based on a minimum
contacts analysis considering their
contacts with the United States as
a whole. If the second
interpretation prevails the service
provision is only effective when,
pursuant to Section 12’s first
clause, the action is brought in a
district where the defendant
resides, is found or transacts
business.
In re Magnetic Audiotape Antitrust
Litig., 171 F. Supp. 2d 179, 184
(S.D.N.Y. 2001), vacated sub nom. on
other grounds, Texas Int’l Magnetics,
Inc. v. BASF Aktiengesellschaft, 31 Fed.
Appx. 738, 2002 WL 385569 (2d Cir.
March 12, 2002). The plaintiffs dispute
whether the present litigation can only be
brought in a federal district where the
appellants are “residents,” may be
“found,” or “transact[ ] business” based
on their contacts with the forum district
or state. They contend that it may be
brought in any federal district based on
the appellant’s “minimum contacts” with
the United States as a whole.
Currently, two sister Courts of
Appeals differ as to the construction of
Section 12. The plaintiff-appellees rely
on the decision in Go-Video, Inc. v. Akai
Elec. Co., Ltd., 885 F.2d 1406 (9th Cir.
1989), and a majority of recent District
Courts’ opinions to support their
argument that the service or process
provision is independent of the specific
venue provision. On the other hand,
appellants rely on the decision in GTE
(D.D.C. 1979) (quoting Fox-Keller, Inc.
v. Toyota Motor Sales, U. S. A., Inc.,
338 F. Supp. 812, 815 (E.D. Pa. 1972)).

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7
New M edia Services Inc. v. Bellsouth
Corp., 199 F.3d 1343 (D.C. Cir. 2000),
where the Court wrote:
The language of the statute is
plain, and its meaning seems
clear: The clause before the semi-
colon relates to a supplemental
basis for venue in actions under
the Clayton Act; the clause after
the semi-colon relates to
nationwide service of process in
antitrust cases; and invocation of
the nationwide service clause
rests on satisfying the venue
provision.
Id. at 1350.
The GTE court “aligned” itself
with the position taken by the Second
Circuit forty years ago in Goldlawr, Inc.
v. Heiman, 288 F.2d 579, 581 (2d Cir.
1961) (holding in dicta that the expansive
service of process provisions was
contingent on satisfaction of the specific
venue provision), rev’d on other grounds,
369 U.S. 463 (1962).7 The GTE court
claimed that its construction of Section
12 of the Clayton Act was the result of a
“plain” or “unadorned” reading of the
language of the statute, and implied that
the Go-Video court’s construction was
the result of “literal convolutions.” GTE,
at 1351.
The Go-Video court did not find
the language of Section 12 to be clear or
unambiguous. Go-Video, 885 F.2d at
1412 (quoting Judge Stewart’s linguistic
analysis of the syntactic structure of
Section 12 in Gen. Elec. Co. v. Bucyrus-
Erie Co., 550 F. Supp. 1037, 1042, 1042
n.7 (S.D.N.Y. 1982), without necessarily
endorsing his analysis).8 Instead of
7 The Goldlawr court concluded that
Section 12
specifies where suit against a
corporation under the antitrust
laws may be brought, namely, in a
district where it is an inhabitant
and also where “it may be found
or transacts business.”
Conversely, it should follow that
if a corporation is not an
inhabitant of, is not found in, and
does not transact business in, the
district, suit may not be so
brought. By statutory grant if suit
is brought as prescribed in this
section ‘all process in such cases
may be served in the district of
which it (the corporation) is an
inhabitant, or wherever it may be
found.” Thus, ‘in such cases,’
Congress has seen fit to enlarge
the limits of the otherwise
restricted territorial areas of
process. In other words, the
extraterritorial service privilege is
given only when the other
requirements are satisfied.
Goldlawr, 288 F.2d at 581.
8 Judge Stewart wrote that “the usual
rules of syntax” would favor the
construction of Section 12 that the
service of process clause is independent
of the venue clause:
The word “such” means “the
aforementioned,” Webster’s Third
International Dictionary (unabr.
ed. 1963). Thus, when “such”
precedes a noun it is assumed to
refer to a particular antecedent
noun and any dependent adjective
or adjectival clauses modifying
that noun, but not to any other part
of the preceding clause or

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relying on its own way of reading of the
language of Section 12, as the GTE court
did, the Go-Video court found it
necessary to “interpret a passage in
which antecedents and consequents are
unclear by reference to the context and
purpose of the statute as a whole.” Id.
The Go-Video court did not find the
sparse legislative history of the Clayton
Act conclusive on the issue. 885 F.2d at
1410. There was evidence, however, that
“Congress viewed the questions of venue
and service of process separately, with
the latter issue of subsidiary importance.”
Id.
The Go-Video court found it
more helpful to rely on the general
interpretation that courts have given
Section 12. Id. “[C]ourts have viewed
the section’s main contribution to be its
expansion of the bounds of venue.” Id.
(citing United States v. Scophony Corp.
of Am., 333 U.S. 795, 806-808 (1948) (
Section 12 substituted broad, practically-
founded venue tests for the older, “hair-
splitting legal technicalities” of the
Sherman Act); 15 Wright & M iller,
Federal Practice and Procedure, § 3818,
at 109-10 (1976) (venue provisions of
Clayton Act were “clearly broadening in
[their] effect”)).9 See also Paper
Systems, Inc. v. Mitsubishi Corp., 967 F.
Supp. 364, 368 (E.D. Wis. 1997) (“In the
case of the antitrust laws, it makes no
sense to tie a district court’s jurisdiction
to the state in which it sits; it neither
promotes the enforcement of the antitrust
laws nor the management of litigation.”);
Prof’l Adjusting Systems of America,
Inc. v. Gen. Adjustment Bureau, Inc.,
352 F. Supp. 648, 651 (E.D. Pa. 1972)
(“The reason for the broad scope of the
Clayton Act venue provisions was to
give plaintiff the widest possible
selection of venue for his benefit, to
promote a ‘private attorney general’ type
policy for exposing and policing
combinations in restraint of trade.”). In
light of the above authority and
comment, the Go-Video court found
itself “reluctant to adopt a construction
of section 12 which would, by limiting
the availability of the valued tool of
worldwide service of process, recast its
venue provision as a restrictive, rather
than a broadening, provision and might
prevent plaintiffs from pursuing
sentence. Applying this
rule to section 12, “in such
cases” would refer to “any
suit, action, or proceeding
under the antitrust laws
against a corporation,” and
not to anything else in
section 12’s first clause.
Bucyrus-Erie, 550 F. Supp. at 1042 n.7.
9 As the Supreme Court noted in United
States v. Scophony Corp., 333 U. S. 795,
808 (1948), the third and final prong of
“transact[ing] business” in Section 12
was enacted by Congress with the
remedial purpose of enlarging the venue
jurisdiction of the federal courts by
substituting “practical, business
conceptions for the previous hairsplitting
legal technicalities encrusted on the
‘found’-‘present’-‘carrying-on-business’
sequence. . . .” Id. The Court noted that
the Congressional enactment “relieve[s]
persons injured through corporate
violations of the antitrust laws from the
‘often insuperable obstacle’ of resorting
to distant forums for redress of wrongs
done in the places of their business
residence. A foreign corporation no
longer could come to a district,
perpetuate there the injuries outlawed,
and then by retreating or even without
retreating to its headquarters defeat or
delay the retribution due.” Id.

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9
legitimate claims under the antitrust
laws.” 885 F.2d at 1410-11.
The Go-Video court also relied
on the Supreme Court’s case law
regarding the relationship between
federal venue statutes of general
application and specific venue provisions
contained in individual statutes to
support its holding that the provision for
worldwide service of process is
independent of the specific venue
provision in Section 12 of the Clayton
Act. “[A]s a general matter, courts have
interpreted special venue provisions to
supplement, rather than preempt, general
venue statutes.” Id. at 1409 (citing 15
Wright & Miller, supra, at 108-109)
(“Supreme Court has held that special
venue statutes are supplemented by, and
are to be read in light of, liberalizing
provisions of the general venue statutes”)
(citing Pure Oil v. Suarez, 384 U.S. 202
(1966)).
Of particular relevance to the Go-
Video court was the Supreme Court’s
discussion of the relationship between
the Alien Venue Statute, 28 U.S.C. §
1391(d), a venue provision of general
applicability, and the specific venue
provision, 28 U.S.C. § 1400(b),
concerning actions for patent
infringement, in Brunette Mach. Works,
Ltd. v. Kockum Indus., Inc., 406 U.S.
706 (1972). The Supreme Court held
that the specific venue provision did not
bar the suit under which venue had been
satisfied under Section 1391(d), the
Alien Venue Statute, even though the
Court had previously held that the same
patent venue statute did preclude the
application of the general corporate
venue provision of § 1391(c). Brunette,
at 713-14 (distinguishing Fourco Glass
Co. v. Transmirra Prods. Corp., 353 U.S.
222 (1957)).
Section 1391(d) is not like other
general venue provisions. Brunette held
that “Section 1391(d) is not derived from
the general venue statutes that [a special
venue provision might otherwise be read
as] intended to replace.” Id. at 713.
Rather, Section 1391(d) derives from a
tradition going “back to the beginning of
the Republic” under which “suits against
aliens were left unrestricted, and could
be tried in any district, subject only to the
requirement of service of process.” Id. at
708. “The Brunette court interpreted §
1391(d) to state ‘a principle of broad and
overriding application’ which prevented
an alien defendant from using a narrower
venue provision in another statute as a
‘shield against suit.’” Go-Video,885
F.2d at 1409-10 (citing Brunette, at 714).
“Absent some express congressional
intent to the contrary, a special venue
provision should not, under the clear
language of Brunette be deemed
exclusively controlling when the
defendant involved is an alien. The
principle that an alien may be sued in any
district is simply too deeply rooted to
assume otherwise.” Bucyrus-Erie, 550 F.
Supp. at 1040 (citing Brunette, at 714);
see also Go-Video, at 1410.
The approach of the Go-Video
and Bucyrus-Erie courts is convincing
and well reasoned in their construction of
Section 12 of the Clayton Act.10 We,
10 We are not persuaded by the
conclusions drawn by the GTE and
Goldlawr courts for the reasons
discussed by the Go-Video and Bucyrus-
Erie courts. First, because we do not
find the language of Section 12 to be
clear and unambiguous, we are not
persuaded by the “plain” or “unadorned”
reading of the statutory language by the
GTE court. We, therefore, believe that it
is necessary to consider the overall

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10
therefore, hold that the service of process
provision on foreign corporations is
independent of, and does not require
satisfaction of, the specific venue
provision under Section 12 of the
Clayton Act.
B.
We also reject the appellants’
argument that the District Court does not
have personal jurisdiction over them
because they do not have contacts with
the State of Pennsylvania. In this
instance, Pennsylvania is the forum state
because the underlying class actions have
been transferred and consolidated for
pretrial purposes.11 At least two sister
Courts of Appeals have held that when
purpose of the statute in construing the
statutory language. Second, we agree
with the analysis made in several District
Courts’ decisions that the conclusions of
GTE and Goldlawr are not persuasive
because the defendant corporations in
those two cases were not alien
corporations and were, instead, out-of-
state corporations. The distinction is
crucial. “The general venue provision of
[28 U.S.C. § 1391(c)] governing such
domestic corporations is, in contrast to [§
1391(d)] governing alien corporations,
more difficult to satisfy than the
[S]ection 12 venue requirements.”
Bucyrus-Erie, 550 F. Supp. at 1041 (first
two emphases added, the last emphasis in
original). That is because the added
prong of “transacting business” in
Section 12 is easier to satisfy than the
traditional prongs of being an
“inhabitant” or “doing business.” Id. at
1041 n.5 (“‘doing business’ . . . requires
greater contacts then does ‘transacting
business’”). Because Goldlawr did not
involve an alien corporation, the
Goldlawr court, not surprisingly, did not
need to consider the impact of the
general venue provision of § 1391(d).
As the Go-Video court observed, the
Goldlawr court’s conclusion is
unpersuasive regarding the relationship
of venue and jurisdiction under Section
12 for two reasons. “First, [Goldlawr’s
conclusion in this regard] is dictum,
unrelated to the actual holdings of the
case. Second, and more important,
Goldlawr was decided before the
Supreme Court’s decisions in Pure Oil
and Brunette, decisions in which the
Supreme Court clarified the relationship
between specific statutory venue
provisions and the general federal venue
statutes [for alien corporations]. . . .”
Go-Video, 885 F.2d at 1411. For the
same reasons, the GTE holding, which
involved only out-of-state domestic
corporations, is unpersuasive.
11 Underlying the appellants’ argument
for the local contacts analysis is an
assumption that the court’s personal
jurisdiction is limited to the state to
which the class action has been
transferred. That assumption is
unwarranted. Consolidation of the
underlying class action in Pennsylvania
is only for pretrial purposes pursuant to
28 U.S.C. § 1407. As correctly
concluded by the District Court, the
transferee court can exercise personal
jurisdiction to the same extent that the
transferor court could. See In re Agent
Orange Prod. Liability Litig., 818 F.2d
145, 163 (2d Cir. 1987); In re
Telectronics Pacing Systems Inc., 953 F.
Supp. 909 (S.D. Ohio 1997). Even under
the local contacts analysis, personal
jurisdiction should be assessed at least
based on the appellants’ contacts with the
five states where the individual actions
were brought, New Jersey, Ohio,
Delaware, Kentucky, and Pennsylvania.

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11
personal jurisdiction is invoked under the
Clayton Act, jurisdiction is based on the
defendants’ contacts with the United
States as a whole. Access Telecom, Inc.
v. MCI Telecomm. Corp., 197 F.3d 694,
718 (5th Cir. 1999), cert. denied, 531
U.S. 917 (2000) (“When jurisdiction is
invoked under the Clayton Act, the court
examines the defendant’s contacts with
the United States as a whole to determine
whether the requirements of due process
have been met.”) (citing Go-Video); Go-
Video, 885 F.2d at 1415 (affirming the
District Court’s holding that “worldwide
service provision of § 12 justifies its
conclusion that personal jurisdiction may
be established in any district, given the
existence of sufficient national
contacts”).
We find support for our
construction of Section 12 of the Clayton
Act in the courts’ construction of Section
27 of the Securities Exchange Act of
1934. This section, modeled after
Section 12 of the Clayton Act, provides
in relevant part:
Any suit or action to enforce any
liability or duty created by this
chapter or rules and regulations
thereunder, or to enjoin any
violation of such chapter or rules
and regulations, may be brought
in any such district or in the
district wherein the defendant is
found or is an inhabitant or
transacts business, and process in
such cases may be served in any
other district of which the
defendant is an inhabitant or
wherever the defendant may be
found.
15 U.S.C. § 78aa (emphasis added). The
two sections are remarkably similar in
their provisions for venue and service of
process.12
In the context of construing
Section 27, this Court has held broadly
that “a federal court’s personal
jurisdiction may be assessed on the basis
of the defendant’s national contacts when
the plaintiff’s claim rests on a federal
statute authorizing nationwide service of
process.” Pinker v. Roche Holdings Ltd.,
292 F.3d 361, 369 (3d Cir. 2002). Then
Chief Judge Becker wrote in Pinker:
Where Congress has spoken by
authorizing nationwide service of
process, . . . as it has in the
Securities Act, the jurisdiction of
a federal court need not be
confined by the defendant’s
contacts with the state in which
the federal court sits. See
DeJames v. Magnificence
Carriers, Inc., 654 F.2d 280, 284
(3d Cir. 1981). Following this
reasoning, the district courts
within this Circuit have repeatedly
held that a “national contacts
analysis” is appropriate “when
appraising personal jurisdiction in
a case arising under a federal
statute that contains a nationwide
service of process provision.”
12 See, e.g., Go Video, 855 F.2d at 1414;
Leasco Data Processing Equip. Corp. v.
Maxwell, 468 F.2d 1326, 1340 n.10 (2d
Cir. 1972); Bucyrus-Erie, 550 F. Supp. at
1043. Construing Section 27 of the
Securities Exchange Act, Judge Friendly,
writing for the court, concluded that the
phrase “in such cases” in that statute is
independent of the venue provision and
“speaks expressly only to service of
process.” Leasco, at 1340 (citing United
States v. Scophony Corp., 333 U.S. 795
(1948)).

-- 11 of 21 --

12
AlliedSignal, Inc. v. Blue Cross
of Calif., 924 F. Supp. 34, 36
(D.N.J. 1996); see also Green v.
William Mason & Co., 996 F.
Supp. 394, 396 (D.N.J.1998)
(“[A]n assessment of personal
jurisdiction under [a statutory
provision authorizing nationwide
service of process] necessitates
an inquiry into the defendant’s
contacts with the national
forum.”). We too are persuaded
by the reasoning of our prior
opinions on the subject, and,
consistent with several of our
sister courts of appeals, hold that
a federal court’s personal
jurisdiction may be assessed on
the basis of the defendant’s
national contacts when the
plaintiff’s claim rests on a federal
statute authorizing nationwide
service of process.
Pinker, at 369-70 (emphasis in
original).13 See also Dardana Ltd. v.
A.O. Yuganskneftegaz, 317 F.3d 202,
207 (2d Cir. 2003) (when personal
jurisdiction over a foreign corporation is
based in essence on the federal long-arm
statute, due process analysis involves
contacts with the United States as a
whole); United States v. Swiss Am.
Bank, Ltd., 191 F.3d 30, 36 (1st Cir.
1999) (same); Fitzsimmons v. Barton,
589 F.2d 330, 333 n.4 (7th Cir. 1979);
Mariash v. Morrill, 496 F.2d 1138, 1142-
43 (2d Cir. 1974) (service of process
under § 27 of Securities Exchange Act
requires examination of defendant’s
contacts with the United States as a
whole).
We agree with the holdings of our
foregoing sister Courts of Appeals and
the rationale of our decision in Pinker
that have construed the similarly worded
Section 27 of the Securities Exchange
Act. We hold that personal jurisdiction
in federal antitrust litigation is assessed
on the basis of a defendant’s aggregate
contacts with the United States as a
whole. Our holding in Pinker and on this
appeal is consistent with the Federal Rule
of Civil Procedure 4(k)(2).14 Personal 13 Pinker, 292 F.3d at 369-70 (citing
Republic of Panama v. BCCI Holdings
(Luxembourg) S.A., 119 F.3d 935, 946-
47 (11th Cir. 1997); Busch v. Buchman,
Buchman & O’Brien Law Firm, 11 F.3d
1255, 1258 (5th Cir. 1994); United
Liberty Life Ins. Co. v. Ryan, 985 F.2d
1320, 1330 (6th Cir. 1993); United Elec.,
Radio & Mach. Workers of Am. v. 163
Pleasant St. Corp., 960 F.2d 1080, 1085
(1st Cir. 1992); Sec. Investor Protection
Corp. v. Vigman, 764 F.2d 1309, 1316
(9th Cir. 1985), rev’d on other grounds,
Holmes v. Sec. Investor Protection
Corp., 503 U.S. 258 (1992); Autoscribe
Corp. v. Goldman & Steinberg, Inc.,
1995 WL 56662, at *3 (4th Cir. Feb. 3,
1995) (per curiam) (not precedential)
(citing Hogue v. Milodon Engineering,
Inc., 736 F.2d 989, 991 (4th Cir. 1984)).
14 Federal Rule of Civil Procedure 4(k)(2)
provides:
If the exercise of jurisdiction is
consistent with the Constitution
and laws of the United States,
serving a summons or filing a
waiver of service is also effective,
with respect to claims arising
under federal law, to establish
personal jurisdiction over the
person of any defendant who is
not subject to the jurisdiction of
the courts of general jurisdiction
of any state.

-- 12 of 21 --

13
jurisdiction therein is not limited to the
defendant’s contacts with a particular
federal judicial district or the forum state.
We hold further that personal jurisdiction
under Section 12 of the Clayton Act is as
broad as the limits of due process under
the Fifth Amendment. See Go-Video,
885 F.2d at 1415 (“Under the due
process component of the Fifth
Amendment, a court must consider
whether the maintenance of the suit (i.e.
the exercise of personal jurisdiction over
the defendants to the suit) offends
traditional notions of fair play and
substantial justice.”) (citing Omni
Capital Int’l v. Rudolf Wolff & Co., Ltd.,
484 U.S. 97, 102-103 (1987); Int’l Shoe
Corp. v. Washington, 326 U.S. 310, 316
(1945)).15
III.
The second issue certified in this
appeal is whether we should adopt a first
resort rule in favor of the procedures
under the Hague Convention, rather than
the Federal Rules of Civil Procedure, for
jurisdictional discovery from foreign
defendants in foreign signatory “host”
nations. The appellants argue that
jurisdictional discovery in Germany, a
Convention signatory nation, should first
proceed under the Convention
procedures, rather than the Federal
Rules. The Convention prescribes
certain procedures by which a judicial
authority in one contracting nation may
request evidence located in another
nation. Our Supreme Court rejected a
first resort rule in favor of the
Convention in a case where personal
jurisdiction was not contested and the
discovery sought involved only the
merits of the case. Societe Nationale
Industrielle Aerospatiale v. United States
Dist. Court for the S. Dist. of Iowa, 482
U.S. 522 (1987). The appellants argue
specifically that we should carve out a
narrow exception to the Aerospatiale
decision where, as here, personal
jurisdiction has yet to be established and
the discovery sought is limited to proof
of jurisdiction.16
A.
“Under this provision, a defendant sued
under federal law may be subject to
jurisdiction based on its contacts with the
United States as a whole, when the
defendant is not subject to personal
jurisdiction in any state. Rule 4(k)(2)
confers personal jurisdiction over a
defendant so long as the exercise of
jurisdiction comports with the Due
Process Clause of the Fifth Amendment.”
Dardana, 317 F.3d at 207 (citing 4
Wright & Miller, Federal Practice and
Procedure § 1068.1, at 612, 616 (2002);
Chew v. Dietrich, 143 F.3d 24, 27-28 (2d
Cir.), cert. denied, 525 U.S. 948 (1998)).
15 We note, as did the Go-Video court,
that the Supreme Court has on two
occasions explicitly declined to decide
the constitutionality of national contacts
analysis. See 885 F.2d at 1414 n.8
(citing Omni Capital Int’l v. Rudolf Wolff
& Co., Ltd., 484 U.S. 97, 102-103 n.5
(1987); Asahi Metal Indus. v. Superior
Court, 480 U.S. 102, 113 n.* (1987)
(plurality opinion)).
16 The Federal Republic of Germany and
the Federation of German Industries have
submitted briefs as amicus curiae in
support of the appellants’ position for
this second issue on appeal, urging
reversal of the District Court. The brief
of amicus curiae submitted by the
Committee to Support the Antitrust Laws
supports the plaintiffs’ position, urging
affirmation of the District Court.

-- 13 of 21 --

14
Aerospatiale holds that the Hague
Convention does not provide exclusive
procedures for obtaining documents and
information located in a foreign
signatory nation’s territory. Aerospatiale
first rejects a rule of exclusive use or a
rule of first use as a matter of law in
favor of the Convention on the ground
that neither the language nor the
negotiating history of the Convention
support such rules. Aerospatiale, 482
U.S. at 533-36. Specifically,
Aerospatiale holds that the Convention’s
plain language, as well as the history of
its proposal and ratification by the United
States, unambiguously supports the
conclusion that it was “intended as a
permissive supplement, not a preemptive
replacement, for other means of
obtaining evidence located abroad.” Id.
at 536 (emphasis added). The
Convention’s preamble speaks in non-
mandatory terms, specifying its purpose
to “facilitate” discovery and to “improve
mutual judicial co-operation.” Id. at 534.
Similarly, its text uses permissive
language, and does not expressly modify
the law of contracting states or require
them to use the specified procedures or
change their own procedures. Id.
Accordingly, the Convention does not
deprive the District Court of its
jurisdiction to order, under the Federal
Rules of Civil Procedure, a foreign
national party to the proceeding to
produce evidence physically located
within its territory. Id. at 539-40.
Aerospatiale rejects next a rule of
first resort favoring the Convention on
grounds of international comity and
respect for the “judicial sovereignty” of
the signatory nation in which evidence
sought is located. Id. at 542-43.
International comity does not require in
all instances that American litigants first
resort to the Convention procedures
before initiating discovery pursuant to
our Federal Rules. Id. at 542-44. The
concept of comity requires in this context
“a more particularized analysis” of the
respective interests of the foreign host
nation and the requesting nation than a
blanket first resort rule would generate.
Id. at 543-44. Aerospatiale notes that in
many situations, the Convention
procedures would be unduly time-
consuming and expensive, and less likely
to produce needed evidence than direct
use of the Federal Rules. Id. at 542-43.
However, the Convention’s procedures,
although not mandatory, are available
whenever they will facilitate the
gathering of evidence, and apply in the
sense that they are one method of seeking
evidence that a court may elect. Id. at
541. Aerospatiale declines to hold “as a
blanket matter that comity requires resort
to Hague evidence convention
procedure.” Id. at 544. Therefore, the
determination of whether to resort to the
Convention requires “prior scrutiny in
each case of the particular facts,
sovereign interests, and likelihood that
such resort will prove effective.” Id.
(establishing the three-prong test for
determining whether to resort to the
Convention).
Aerospatiale acknowledges that
“both the discovery rules set forth in the
Federal Rules of Civil Procedure and the
Hague Convention are the law of the
United States.” Id. at 533. However, the
Federal Rules are “the normal methods”
for federal litigation involving foreign
national parties unless the “optional” or
“supplemental” Convention procedures
prove to be conducive to discovery under
some circumstances. Id. at 536 (“the
Convention was intended as a permissive
supplement, not a pre-emptive
replacement, for other means of
obtaining evidence located abroad”)
(emphasis added), 538 (both the text and
negotiating history of the Convention

-- 14 of 21 --

15
show that “it was intended to establish
optional procedures that would facilitate
the taking of evidence abroad”)
(emphasis added), 541 (“the optional
Convention procedures are available
whenever they will facilitate the
gathering of evidence by the means
authorized in the Convention”)
(emphasis added), 542 (“the normal
methods of the Federal Rules of Civil
Procedure”) (emphasis added).
Notwithstanding its rejection of
the first resort rule, Aerospatiale instructs
the American courts to “exercise special
vigilance to protect foreign litigants from
the danger that unnecessary, or unduly
burdensome, discovery may place them
in a disadvantageous position.” Id. at
546. “Judicial supervision of discovery
should always seek to minimize its costs
and inconvenience and to prevent
improper uses of discovery requests.
When it is necessary to seek evidence
abroad, however, the district court must
supervise pretrial proceedings
particularly closely to prevent discovery
abuses.” Id.
Aerospatiale has not explicitly
addressed, however, the issue of which
party bears the burden of convincing the
court of an “optional” and
“supplemental” use of the Convention
procedures in a particular case. Nor has
Aerospatiale, involving foreign
defendants over whom the trial court had
undisputed personal jurisdiction,
addressed the issue of what procedures to
follow in a case, as here, where
jurisdiction is contested and discovery
sought is limited only to proof of
jurisdiction.
B.
The appellants argue that the
District Court erred in extending the
Aerospatiale holding to the underlying
litigation where they have contested
jurisdiction and the discovery sought is
limited to proof of jurisdiction. The
appellants seek our review of only the
District Court’s legal conclusion that the
Aerospatiale holding applies equally to
jurisdictional discovery. This certified
issue involves a pure question of law,
subject to our plenary and de novo
review.
Specifically, the appellants argue
that Aerospatiale is not applicable to
jurisdictional discovery and that this
Court should adopt a first resort rule in
favor of the Hague Convention
procedures based on considerations of
international comity and respect for the
German sovereignty, the host signatory
nation where discovery is to be
conducted. They argue that the
Aerospatiale balancing approach is
premised expressly on the existence of
personal jurisdiction in that case. Where
jurisdiction is disputed and not yet
established, they assert the balancing
approach must yield to a rule of first
resort.
The appellants stress the split of
authorities among federal district courts
and state courts regarding the extension
of Aerospatiale to jurisdictional
discovery. They cite for support Geo-
Culture, Inc. v. Siam Inv. Mgmt. S.A.,
936 P.2d 1063, 1067 (Or. Ct. App. 1997)
(requiring plaintiff to conduct
jurisdictional discovery, at least initially,
only through the Hague Convention,
noting that plaintiff had failed to allege a
prima facie basis for asserting
jurisdiction over the defendant); Jenco v.
Martech Int’l, Inc., No. Civ. A. 86-4229,
1988 WL 54733 at *1 (E.D. La. May 19,
1988) (holding, with almost no
meaningful analysis, that certain
jurisdictional discovery requests must be

-- 15 of 21 --

16
made under the Hague Convention
because “[w]hile judicial economy may
dictate that the Federal Rules of Civil
Procedure should be used, the interests of
protecting a foreign litigant in light of the
jurisdictional problems are
paramount”)17; and Knight v. Ford Motor
Co., 615 A.2d 297, 301 n.11 (N.J. Super.
Ct. Law Div. 1992) (noting, in dicta, that
“[i]f jurisdiction does not exist over a
foreign party . . . the Convention may
provide the only recourse for obtaining
evidence”).
The appellants rely also on a
report by the Special Commission of the
Hague Conference attended, among
others, by delegations from the United
States and Germany. See Hague
Conference on Private International Law:
Special Commission Report on the
Operation of the Hague Service
Convention and the Hague Evidence
Convention, April 1989, reprinted in 28
Int’l Law Materials 1556 (1989). The
report stated that while views varied as to
whether the Hague Convention
“occupied the field and therefore
excluded application of domestic
procedural rules,” “the Commission
thought that in all Contracting States,
whatever their views as to its exclusive
application, priority should be given to
the procedures offered by the Convention
when evidence located abroad is being
sought.” Id. at 1564, 1569. The
appellants argue that the statement in the
report that “priority” should be given to
the Convention should be entitled to
substantial deference.
The appellants are correct that
Aerospatiale makes numerous references
to the existence of personal jurisdiction
in that case. We disagree, however, that
the Aerospatiale holding is dependent on
personal jurisdiction. As concluded by
the District Court here and the District
Court for the District of Columbia, which
considered the same argument raised by
the same defendant, BASF AG, in In re
Vitamins Antitrust Litig., 120 F. Supp.
2d 45, 49 (D.D.C. 2000), a trial court has
authority to determine its jurisdiction.
See Ins. Corp. of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456
U.S. 694, 706 (1982) (“By submitting to
the jurisdiction of the Court for the
limited purpose of challenging
jurisdiction, the defendant agrees to
abide by that court’s determination on
the issue of jurisdiction”). Because the
District Court has jurisdiction over these
foreign defendants to the extent
necessary to determine whether they are
subject to personal jurisdiction, we see
no legal barrier to exercising the
discretion given to trial courts by
Aerospatiale in cases of jurisdictional
discovery. See In re Vitamins, at 49.
We agree with the majority of trial
courts’ decisions that there should be no
exception to the Aerospatiale holding for
jurisdictional discovery. See In re
Vitamins, at 49; Rich v. KIS California,
Inc., 121 F.R.D. 254, 260 (M.D.N.C.
1988) (Aerospatiale “did not carve out
any exception for disputes involving
personal jurisdiction”); Fishel v. BASF
Group, 175 F.R.D. 525, 529 (S.D. Iowa
1997) (Aerospatiale provides that the
Hague Convention procedures are
optional and do not divest federal district
courts of authority to order discovery
under the Federal Rules); In re Bedford
17 Jenco left undisturbed a portion of the
magistrate’s opinion allowing
interrogatories and document requests
directed at a foreign party to proceed
under the Federal Rules and overturned
only the magistrate’s ruling allowing
depositions to be taken under the Federal
Rules.

-- 16 of 21 --

17
Computer Corp., 114 B.R. 2, 5-6 (Bankr.
D.N.H. 1990) (citing Rich and allowing
discovery limited to jurisdictional issues
to proceed under the Federal Rules).
Unlike Geo-Culture, relied on by
the appellants, where the plaintiff failed
to allege even a prima facie case of
personal jurisdiction, the District Court
found that the plaintiffs here had
established a prima facie case of personal
jurisdiction, a conclusion not challenged
by the appellants. The plaintiffs’
allegations amounted, therefore, to more
than “mere blanket fishing expeditions”
and were “not the type of bare-boned
allegations that potentially could lead to
the fishing expeditions of obvious
concern to the signatory countries.” In re
Vitamins, 120 F. Supp. 2d at 50.
The appellants also relied on the
Federal Rules to challenge the District
Court’s personal jurisdiction. As we
have stated above, it is well established
that the trial court has inherent power
and jurisdiction to decide whether it has
jurisdiction. Ins. Corp. of Ireland, 456
U.S. at 706. The appellants’ arguments
are also premised on the assumption that
there is no personal jurisdiction in this
case. Such an assumption is premature
and unwarranted unless the result of the
pending jurisdictional discovery shows
otherwise. At this stage, where the
appellants have voluntarily appeared in
the court to challenge jurisdiction and
jurisdictional discovery is pending, the
District Court indisputably has
jurisdiction to determine whether there is
personal jurisdiction upon completion of
jurisdictional discovery. Moreover, the
denial of resort to Hague convention
procedures for jurisdictional discovery is
not unfair to the appellants because they
“[had] taken advantage of the [Federal]
[R]ule allowing them a preliminary
hearing and determination of the issues
raised in their motion.” See Fishel, 175
F.R.D. at 529.
Accordingly, the distinction
drawn by the appellants between
“merits” discovery and “jurisdictional”
discovery, predicated on a false
dichotomy of having and not having
jurisdiction, amounts to no real
difference because the court has
jurisdiction for either type of discovery.18
The undisputed presence of personal
jurisdiction in Aerospatiale is, therefore,
tangential to its holding and irrelevant to
the issue of whether Aerospatiale applies
also to jurisdictional discovery.
There are other reasons supporting
our conclusion that the Aerospatiale
balancing approach applies equally to the
determination of whether the Hague
Convention procedures should be used
initially for jurisdictional discovery.
First, where Aerospatiale has
categorically rejected a first resort rule
for “merits” discovery, which we can
expect to be more comprehensive or
burdensome than jurisdictional
discovery, there is more justification to
reject a first resort rule for the more
limited and less intrusive jurisdictional
discovery. See Fishel, 175 F.R.D. at 529
(“The ascertainment of facts bearing on
personal jurisdiction normally involves
the least intrusive type of inquiries.”).
Second, where Aerospatiale has
rejected the first resort rule even though
the French defendants there may have
18 No one would dispute that if
jurisdiction discovery yields no evidence
sufficient to establish personal
jurisdiction, the court must dismiss the
underlying action against the appellants,
rather than deciding which set of
procedural rules to apply.

-- 17 of 21 --

18
faced possible penal sanction under
France’s “blocking statute,” there is less
justification for us to adopt a first resort
rule where the appellants here face no
such sanction because Germany has no
“blocking statute.”19 Aerospatiale
reiterates the well-settled view that
“[blocking] statutes do not deprive an
American court of the power to order a
party subject to its jurisdiction to produce
evidence even though the act of
production may violate that statute.” 482
U.S. at 544-45 n.29 (concluding that “the
enactment of such a statute by a foreign
nation” cannot be allowed to “graft a rule
of first resort onto the Hague
Convention, or otherwise to provide the
nationals of such a country with a
preferred status in our courts”). Neither
the appellants nor their supporters,
Germany or the Federation of German
Industries, have disputed the plaintiffs’
statement that Germany, unlike France,
does not have a “blocking statute,”
criminal or civil, that specifically
prohibits production of documents in
connection with foreign judicial or
administrative proceedings. Nor have
they identified a single instance where a
German national has been prosecuted,
penalized, or sanctioned under German
law for complying with discovery orders
from a United States judicial or
administrative proceeding pursuant to the
Federal Rules.
Third, where Aerospatiale has
rejected the adoption of a blanket first
resort rule based on the proffered reasons
of respecting the “judicial sovereignty”
of the signatory host nation and
preventing discovery abuse, the same
reasons proffered by the appellants here
must fail as well. 482 U.S. at 543-44
(finding no textual support in the Hague
Convention for a first resort rule and
opting for a three-prong balancing
approach), 545-46 (suggesting that
burdensome or intrusive discovery
practice is not a sufficient ground for
adopting the first resort rule because the
trial court has an inherent duty to
supervise discovery and prevent
discovery abuse).
The appellants and their
supporters argue generally that Germany
is a civil law country where the gathering
of evidence is a judicial function and that
pursuing discovery without resort to the
Convention may be deemed an affront to
Germany’s sovereignty. The
Aerospatiale Court, as well as other
courts, has found such argument
“unpersuasive.” Id. at 543; see also
Great Lakes Dredge & Dock Co. v.
Harnischfeger Corp., 1990 WL 147066,
at *2 (N.D. Ill. Sept. 25, 1990);
Scarminach v. Goldwell GmbH, 531
N.Y.S. 2d 188, 191 (N.Y. Sup. Ct. 1988).
As observed by the court in In re
Vitamins, 120 F. Supp. 2d at 50, there is
no reason to assume that discovery under
the Federal Rules would inevitably
offend Germany’s sovereign interest
because presumably Germany, like the
United States, would prohibit the alleged
price-fixing conspiracy and would
welcome investigation of such antitrust
violation to the fullest extent. See
19 Aerospatiale, 482 U.S. at 526 n.6
(quoting Article 1A of the French
“blocking statute,” French Penal Code
Law No. 80-538) (“Subject to treaties or
international agreements and applicable
laws and regulations, it is prohibited for
any party to request, seek or disclose, in
writing, orally or otherwise, economic,
commercial, industrial, financial or
technical documents or information
leading to the constitution of evidence
with a view to foreign judicial or
administrative proceedings or in
connection therewith.”).

-- 18 of 21 --

19
Germany’s Act Against Restraints of
Competition § 1; Treaty Establishing the
European Economic Community, Art.
81(1). There is also no reason to
“believe that the sovereign interests of . .
. foreign signatory nations would be any
more offended by [the] narrower
jurisdictional discovery than they would
be by the broader, merits-related
discovery allowed by Aerospatiale.” In
re Vitamins, 120 F. Supp. 2d at 51. We
likewise conclude that the appellants’
general argument is unpersuasive.20
Similarly, following the
Aerospatiale holding, we also find
unpersuasive the appellants’ argument
that a first resort to the Hague
Convention is required to avoid possible
burdensome or intrusive discovery
practice under United States law.
Aerospatiale, 482 U.S. at 545-46; see
also Great Lakes, 1990 WL 147066, at
*2, and Scarminach, 531 N.Y.S. 2d at
191. Discovery abuse is an insufficient
reason to avoid the Federal Rules
because the appellants have remedies in
the District Court to restrict discovery
abuse. We expect that the District Court
will follow Aerospatiale’s instruction
and “exercise special vigilance” to
protect appellants from unduly
burdensome or abusive discovery.
Aerospatiale, at 546.
We agree with the District Court’s
legal conclusion that the Aerospatiale
balancing test applies equally to
jurisdictional discovery and that there is
no first resort rule in favor of the Hague
Convention procedures for jurisdictional
discovery.
C.
The appellants also argue
alternatively that even if the Aerospatiale
balancing approach applies to
jurisdictional discovery, the three-prong
test would favor first use of the
Convention procedures in this case. The
District Court rejected that argument,
ruling that the appellants bore the burden
of persuasion under the balancing test
and that they failed to satisfy the burden.
The court concluded alternatively that
even if the plaintiffs bore the burden of
persuasion, they had submitted adequate
evidence to show that the balancing test
disfavored first use of the Convention
procedures for jurisdictional discovery in
this case.
We agree first with the District
Court’s conclusion of law that the
appellants bear the burden of persuasion
as to the optional use of the Convention
procedures. See Aerospatiale, 482 U.S.
at 547 (stating that the court should give
“the foreign litigant a full and fair
opportunity to demonstrate appropriate
reasons for employing Convention
procedures in the first instance, for some
aspects of the discovery process”)
(emphasis added). This language seems
20 Appellants and especially their
supporters, Germany and the Federation
of German Industries, stress the
controversial character of the “narrow
majority” decision in Aerospatiale and
profess their strong disagreement with
the Aerospatiale holding that the Hague
Convention procedures are merely an
optional supplement to the Federal Rules.
We must reject their invitation to deviate
from Aerospatiale based on the same
proffered reasons, found insufficient by
the Aerospatiale Court, of respecting
international comity and preventing
discovery abuse. As a subordinate court,
we are bound by the Supreme Court’s
precedent.

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20
to imply that the proposing party bears
the burden of persuasion. See also In re
Vitamins, 120 F. Supp. 2d at 51-52
(holding that proposing party bears the
burden);Valois of Am., Inc. v. Risdon
Corp., 183 F.R.D. 344, 346 (D. Conn.
1997) (same); Doster v. Schenk A.G.,
141 F.R.D. 50, 51-52 (M.D.N.C. 1991)
(“[I]t is more practical, if not logical, to
place the burden of persuasion on the
proponent of using the Hague
Convention.”); Rich, 121 F.R.D. at 257-
58 (same); Benton Graphics v.
Uddeholm Corp., 118 F.R.D. 386, 389
(D.N.J. 1987) (same); but see Hudson v.
Hermann Pfauter GmbH & Co., 117
F.R.D. 33, 38 (N.D.N.Y. 1987); Knight,
615 A.2d at 300.
We also agree with the District
Court’s conclusions that the appellants
have failed to satisfy their burden of
persuasion under the Aerospatiale
balancing test and that the evidence on
record disfavors the first use of the
Convention procedures for jurisdictional
discovery. The court’s conclusions in
these two instances are reviewed only for
abuse of discretion, and we find none.
IV.
For the foregoing reasons, the
orders of the District Court certified for
review on this interlocutory appeal will
be affirmed. Costs are taxed against the
appellants.
ROTH, Circuit Judge, concurring21:
I write separately to express my
concern that the Hague Convention has
been given short shrift since the Supreme
Court’s decision in Société Nationale
Industrielle Aerospatiale v. United States
District Court for the Southern District of
Iowa, 482 U.S. 522 (1987). The service
provisions of the Hague Convention were
adopted by the President and approved by
a unanimous vote of the Senate in 1972.
Id. at 530. The provisions then became the
“law of the land,” coexisting with other
federal law such as the Federal Rules of
Civil Procedure. U.S. Const. art. VI, cl. 2.
In Aerospatiale, the Hague Convention
was referred to as a “permissive
supplement” and an “optional procedure.”
Id. at 536. However the Hague
Convention is only as “optional” as
deciding to use the Federal Rules is
“optional” in such a case. The Convention
does not overwrite the Federal Rules of
Civil Procedure, but it is in no way inferior
to them.
Unfortunately, I believe the
language used in Aerospatiale has
unintentionally compounded the problem
inherent with the Convention: that
“relatively few judges are experienced in
the area [of international law] and the
procedures of foreign legal systems are
often poorly understood.” Aerospatiale,
482 US. at 552 (Blackmun, J., dissenting).
Many times, rather than wade through the
mire of a complex set of foreign statutes
and case law, judges marginalize the
Convention as an unnecessary “option.” I
believe the Aerospatiale decision should
be reexamined to ensure that lower courts
are in fact exercising “special vigilance to
p r o t e c t f o r e i g n l it i g a n ts ” a n d
demonstrating respect “for any sovereign
interest expressed by the foreign state.”
Id. at 485. Currently, I fear that many
courts are simply discarding the treaty as
an unnecessary hassle.
Our sage colleague, Judge Joseph F.
Weis, Jr., has opined that first resort to the
Hague Convention is in fact appropriate:
21Judge McKee shares the concerns
expressed herein and joins this
concurring opinion.

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The arguments mustered
against giving priority to
Convention procedures are
not persu asiv e whe n
b a l a n c e d w i t h t h e
o v e r r i d i n g i n t e r e s t s ,
national and international,
i n m o r e e f f e c t i v e
implementation of the
Evidence Convention. It
should be remembered,
after all, that the treaty
negotiated by the United
States and the other
signatories is for the
benefit of private litigants
as a whole – some
inconvenience or expense
to an individual litigant
should not suffice to
jeopardize an arrangement
which bene fits many.
M o r e o v e r , t h r o u g h
ratification, the United
States has agreed to honor
the commitments which
the treaty contains. The
judiciary should not lightly
permit a private litigant to
u n d e r m i n e e x p r e s s
national policy.
Joseph F. Weis, Jr., The Federal Rules and
the Hague Conventions: Concerns of
Conformity and Comity, 50 U. Pitt. L.
Rev. 903, 931 (Spring, 1989).
Judge Weis’s view mirrors the
conclusions of the Special Commission of
the Hague Conference of April 1989, that,
whatever the views of the delegates as to
application of domestic procedural rules,
“priority should be given to the procedures
offered by the Convention when evidence
located abroad is being sought.” Hague
Conference of Private International Law:
Special Commission Report on the
Operation of th e Hague Service
Convention and the Hague Evidence
Convention, April 1989, reprinted in 28
Int’l Law Materials 1556, 1569 (1989).
Among the delegates at the 1989 meeting
of the Special Commission was one from
the United States.
I recognize that we are bound by
Aerospatiale but I believe that it is time for
the Supreme Court to revisit that decision
– particularly because I perceive that many
of our courts have not exercised the
“special vigilance to protect foreign
litigants” that the Supreme Court
anticipated.
Finally, under the precedent of
Aerospatiale, I do not oppose the panel’s
conclusion that the burden of persuasion
lies with the party advocating the use of
the Hague Convention. In an ideal
world, however, if the treaty were to be
given the priority to which its status as a
ratified treaty entitles it, I do not believe
that the burden of persuasion should lie
with the proponent of the Hague
Convention procedures.

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