Comparing Extraterritoriality in the EU
How a court decides whether a statute applies extraterritorially is a fundamental question in transnational litigation. TLB has lots of information about the U.S. approach. Our Primer on Extraterritoriality describes the federal and state approaches, as well as the customary international law rules on jurisdiction to prescribe. Recent posts have discussed the extraterritorial application of…
Continue ReadingThe Extraterritorial Application of State Wage and Hour Laws
Many U.S. states have enacted wage and hour laws. These laws generally set a minimum wage and require employers to pay overtime. When a company headquartered in one state hires an employee to perform work in a foreign country, however, it is not always clear which jurisdiction’s laws will apply. Is the payment of wages…
Continue ReadingThrowback Thursday: American Banana and the Presumption Against Extraterritoriality
Today, it is “well established” that U.S. antitrust law applies extraterritorially to foreign conduct that causes substantial effects in the United States, but this was not always true. When the Supreme Court first addressed the geographic scope of the Sherman Act in 1909, it held that the act applied only to conduct in the United…
Continue ReadingSection 230 and the Presumption Against Extraterritoriality
The Ninth Circuit opinion in Gonzalez v. Google (2021) raises important questions about how the presumption against extraterritoriality applies to immunity defenses invoked by social media companies under 47 U.S.C. § 230.Section 230 shields internet companies from civil liability for user-generated content hosted on their platforms. Gonzalezholds, effectively, that there is no conceivable application of…
Continue ReadingA Primer on State Law in Transnational Litigation
The procedural and substantive rules that U.S. courts apply in transnational litigation come from many sources, including the U.S. Constitution, international treaties, customary international law, federal statutes, federal rules, and federal common law (both preemptive and non-preemptive)—but also, state statutes, state rules, and state common law. This primer focuses on the underappreciated role of state…
Continue ReadingNinth Circuit Deepens Split over Extraterritoriality of Civil RICO
In a recent decision, Smagin v. Yegiazaryan, the Ninth Circuit weighed in on a circuit split involving the extraterritorial application of RICO’s private right of action. In determining whether there is injury to business or property in the United States, the court rejected the Seventh Circuit’s residency-based test, siding instead with the Second and Third…
Continue ReadingDistrict Court Holds that Magnuson-Moss Warranty Act Does Not Apply Extraterritorially
In a recent decision, Eichhorn-Burkhard v. Hill’s Pet Nutrition, Inc., a district court in Kansas (Judge Julie Robinson) held that the Magnuson-Moss Warranty Act (MMWA) does not apply extraterritorially to a U.S. company’s sales of dog food in Europe. The case provides a nice illustration of how U.S. courts apply the presumption against extraterritoriality to…
Continue ReadingExtraterritorial Jurisdiction and Conflict of Laws
In a forthcoming Article, I take the Supreme Court’s recent jurisprudence on the presumption against extraterritoriality and view it through the lens of conflict of laws. In so doing, I attempt to show how the presumption mirrors features of conflicts doctrine and makes some of the same mistakes conflict law already has made. This list…
Continue ReadingThe ATS Clarification Act Can Protect Human Rights and Level the Playing Field for U.S. Businesses
As previously reported on TLB, Senators Durbin (D-IL) and Brown (D-OH) recently introduced the Alien Tort Statute Clarification Act (ATSCA), which, if passed, will clarify the extraterritorial reach of the Alien Tort Statute (ATS) and expand the statute’s jurisdiction to cover all defendants “present in” the United States. The ATS is one of our nation’s…
Continue ReadingDoe v. Meta and the Future of the Communications Decency Act
Two law firms recently filed a class action lawsuit on behalf of Rohingya refugees in the United States seeking at least $150 billion in compensatory damages from Meta (formerly Facebook). The plaintiffs in Doe v. Meta allege that Meta’s algorithms were designed to promote hate speech and misinformation about the Rohingya, a Muslim-minority population in Myanmar…
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