D.C. Circuit Holds that Whistleblower Provision Does Not Apply Extraterritorially
In Garvey v. Administrative Review Board, the D.C. Circuit held that a whistleblower provision in the Sarbanes-Oxley Act did not apply to alleged retaliation against an employee in Hong Kong by a subsidiary of a U.S. investment bank. The opinion carefully applies the Supreme Court’s two-step framework for the presumption against extraterritoriality to the whistleblower…
Continue ReadingA Primer on Service of Process
Serving process on a defendant does two things: (1) it asserts the court’s authority over the defendant; and (2) it provides the defendant with notice of the lawsuit. In the United States, process can be served by private parties. But many foreign states regard service as a public act that can be done only by…
Continue ReadingIs Buying Fighter Jets a Commercial Activity?
The Foreign Sovereign Immunities Act (FSIA) allows actions against foreign states to be brought in U.S. courts based on their commercial activities. In Republic of Argentina v. Weltover (1992), the Supreme Court held “that when a foreign government acts, not as regulator of a market, but in the manner of a private player within it,…
Continue ReadingExecutive Control Versus “Deference” in Halkbank
On January 17, the Supreme Court heard oral argument in Turkiye Halk Bankasi A.S. v. United States(Halkbank) on whether the Foreign Sovereign Immunities Act (FSIA) applies to criminal prosecutions. One argument advanced by the government in Halkbank (and other immunity cases) is that the executive branch has absolute control over immunity determinations not governed by…
Continue ReadingA Primer on Judicial Assistance Treaties
[This post is one in a series of primers on various topics in transnational litigation. More primers can be found on our topic pages, accessible by clicking Topics at the top of the page.] In transnational litigation it will often be necessary to do something within the territory of another state, such as serve process,…
Continue ReadingSupreme Court Grants Cert to Resolve Split Over Extraterritoriality of Civil RICO
Earlier today, the Supreme Court granted cert in Yegiazaryan v. Smagin and CMB Monaco v. Smagin and consolidated the cases for oral argument. The question in both cases is how RICO’s private right of action applies to intangible property, in this case a California judgment confirming a foreign arbitral award. As I previously noted on…
Continue ReadingSupreme Court Denies Cert in More Transnational Litigation Cases
On Monday, I reported that the Supreme Court denied cert in NSO Group Technologies Ltd. v. WhatsApp Inc., letting stand a Ninth Circuit decision that companies that work for foreign governments cannot claim immunity from suit under federal common law. Monday’s orders list also denied cert in two other cases that TLB has been following. First,…
Continue ReadingStare Decisis and Extraterritoriality
In a recent post, Curt Bradley suggested that the hardest problem the Supreme Court faces as it revisits the geographic scope of the Lanham (Trademark) Act in Abitron Austria GmbH v. Hetronic International, Inc. is what to do about existing precedent. In Steele v. Bulova Watch Co. (1952), the Court held that the Act applies to…
Continue ReadingSupreme Court Denies Cert in NSO v. WhatsApp
Today, the Supreme Court denied cert in NSO Group Technologies Ltd. v. WhatsApp Inc. The order lets stand a Ninth Circuit decision holding that entities that do not meet the Foreign Sovereign Immunities Act’s (FSIA) definition of an “agency or instrumentality” of a foreign state cannot claim immunity under federal common law. (Disclosure: I joined an amicus brief…
Continue ReadingMBS’s Immunity and the Subject Matter Jurisdiction Problem
As previously discussed at TLB, a federal district court recently dismissed claims against Mohammad bin Salman (MBS) arising from the murder of journalist Jamal Khashoggi. When the claims were filed, MBS was merely Crown Prince of Saudi Arabia and not entitled to head-of-state immunity. MBS was subsequently appointed Prime Minister, however, a position that does…
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