As with other types of cross-border investigations, antitrust issues attract the interest of regulators around the globe, and U.S. authorities are active in matters involving foreign players. Last January, the Federal Trade Commission and the Department of Justice jointly issued revised guidelines discussing their tools for collaborating with foreign authorities and the application of U.S. antitrust law to conduct involving foreign commerce. See Antitrust Guidelines for International Enforcement and Cooperation (Jan. 13, 2017) (guidelines). Among other factors, the guidelines note that these agencies consider international comity when enforcing federal antitrust laws. But how far does that comity consideration actually go for an individual subject to global antitrust scrutiny?

In United States v. Usher, 17-CR-00019 (RMB) (Usher), three criminal antitrust defendants recently broached this question in connection with their prosecution in the Southern District of New York for allegedly coordinating trading in the Euro/U.S. Dollar currency exchange market. The defendants, all former foreign currency traders, were citizens and residents of the United Kingdom, who worked at London banks, with customers in Europe. Before being charged in the United States, the Serious Fraud Office (SFO) in the U.K. conducted an 18-month investigation of the same conduct and decided not to prosecute any these defendants. In moving to dismiss their indictment here, the defendants noted this determination, and argued that they could not have foreseen being hailed into a U.S. court for conduct that “took place entirely in the United Kingdom, was central to their job responsibilities, and had no perceptible effect in the United States.” The defendants argued, inter alia, that the court should decline to exercise jurisdiction on international comity grounds.

International comity is “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation,” see Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). Comity can come into play in a number of ways, including imparting res judicata effect to judgments of foreign tribunals and through “comity of the courts,” whereby judges “decline to exercise jurisdiction over matters more appropriately adjudged elsewhere.” See Hartford Fire Insurance v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting); see also Royal & Sun Alliance Insurance Co. of Canada v. Century International Arms, 466 F.3d 88, 92-94 (2d Cir. 2006) (outlining considerations related to U.S. court discretion to abstain in deference to litigation pending in a foreign court). In addition, courts can abstain from exercising jurisdiction based on “prescriptive comity,” that is, “the respect sovereign nations afford each other by limiting the reach of their laws.”