Supreme Court - Current Term
Yegiazaryan v. Smagin
The Court will consider what constitutes a domestic injury to intangible property for purposes of RICO’s private right of action. The Ninth Circuit held, in conflict with the Seventh Circuit, that a U.S. judgment confirming a foreign arbitration award was intangible property in the United States, permitting a civil RICO claim for treble damages against the defendant for conspiring not to pay the judgment.
Abitron Austria GmbH v. Hetronic International Inc.
The Court will consider the extraterritorial reach of the Lanham Act, which provides civil remedies for the infringement of trademarks. In Steele v. Bulova Watch (1952), the Supreme Court held that the Lanham Act applies extraterritorially, but lower courts have splintered on the proper test for determining when the Lanham Act should apply to extraterritorial conduct.
Twitter, Inc. v. Taamneh
The Court will consider whether a social media site with a program to detect and prevent terrorists from using its platform “knowingly” provided substantial assistance under the Anti-Terrorism Act if it could have taken more aggressive action, and whether the site can be liable for aiding and abetting even though it was not used in connection with the terrorist act that injured the plaintiff.
Turkiye Halk Bankasi A.S. v. United States
The Court will consider whether the Foreign Sovereign Immunities Act (FSIA) applies to criminal cases. Halkbank, a Turkish state-owned bank, was indicted for violating U.S. sanctions against Iran. The Second Circuit held that the FSIA does not apply to criminal cases and, in the alternative, that the case would fall within the FSIA's commercial activities exception.
Mallory v. Norfolk Southern Railway
The Court will consider whether the Due Process Clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to general personal jurisdiction in order to do business in the state. Although the case does not involve transnational facts, it has significant implications for foreign corporations doing business in the United States.
Petitions to Watch
Ratha v. Phatthana Seafood Co., Ltd.
The petition asks the Court to clarify whether for an intentional tort, purposeful direction is required to establish specific personal jurisdiction or whether purposeful availment suffices. The question arises in the context of the Torture Victims Protection Reauthorization Act’s requirement that a non-U.S. defendant be “present” in the United States, which is typically ascertained by whether the defendant would be subject to personal jurisdiction for the claim in question.
NSO Group Technologies Limited v. WhatsApp Inc., cert. denied, 143 S.Ct. ___ (2023)
The petition asks the Court to consider whether the Foreign Sovereign Immunities Act (FSIA) occupies the field with respect to the immunity of entities, such that a corporation may not assert common-law immunities that are not found in the FSIA. The petitioner, an Israeli company that makes spyware, claims that it is entitled to common-law immunity because it acted as an agent of foreign governments.
Turkey v. Usoyan, cert. denied, 143 S.Ct. ___ (2022)
The petition asks the Court to review the D.C. Circuit's application of the discretionary function exception to Foreign Sovereign Immunities Act's (FSIA) territorial tort exception. The D.C. Circuit held that Turkey was not immune from claims arising from the use of force against protesters in the United States by a security detail for Turkey's president because the territorial tort exception to the FSIA applied and the use of force did not qualify as a discretionary function.
Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., cert. denied, 143 S.Ct. ___ (2022)
The petition asks the Court to consider whether a U.S. court may decline to apply U.S. antitrust law on grounds of international comity based on a multifactor balancing test and whether a court interpreting the meaning of foreign law under Federal Rule of Civil Procedure 44.1 is limited to reviewing the law on its face. The Second Circuit held that an antitrust case should have been dismissed after finding a facial conflict with Chinese law and concluding that the balance of factors favored dismissal.
Ukraine v. PAO Tatneft, cert. denied, 143 S.Ct. ___ (2022)
The petition asks the Court to resolve a circuit split about whether forum non conveniens is available in proceedings to confirm a foreign arbitral award. The Second Circuit has held that, under federal common law, forum non conveniens is available and that courts may dismiss proceedings to confirm arbitral awards when defendants can point to a better alternative forum. The D.C. Circuit, on the other hand, has held that forum non conveniens is categorically unavailable in proceedings to confirm foreign arbitral awards.
Deripaska v. Yellen, cert. denied, 143 S.Ct. ___ (2022)
The petition asks the Court to consider whether the Treasury Department's Office of Foreign Assets Control acted beyond the scope of its statutory authority under the International Emergency Economic Powers Act when it imposed sanctions on petitioner in response to a threat for which no national emergency had been declared.
ZF Automotive v. Luxshare (2022)
The Supreme Court held that, although 28 U.S.C. § 1782(a) permits a district court to order discovery "for use in a proceeding in a foreign or international tribunal,” only a governmental or intergovernmental adjudicative body may qualify as such a tribunal, and the arbitration panels in these cases were not such adjudicative bodies.
Cassirer v. Thyssen-Bornemisza Collection Foundation (2022)
The Supreme Court held that In a suit raising non-federal claims against a foreign state or instrumentality under the Foreign Sovereign Immunities Act, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party.