The World in U.S. Courts:
Summer-Fall 2018

Decisions Discussed in This Issue |

Please click on the area of law you are interested in (for example, “Intellectual Property – Trademark,” and you will be brought to all of the case summaries relating to it. Also, clicking on the name of a linked statute will take you to a statutes summary page. Copies of any case discussed in this issue are available upon request.

Please note that Orrick may be representing parties in the cases discussed below. Nothing in the informal summaries contained in this publication should be taken as commenting on the merits of cases, or as binding constructions of court opinions that are discussed.

Foreign Sovereign Immunity Act (FSIA)

FSIA “Commercial Activity” Exception Applies to Transportation of Submarine Loaned to Australian National Museum at Nominal Cost

“Commercial Activity” Exception to FSIA Applicable to Claims that Sovereign Wealth Fund “Hacked” Computers of Former Business Partner

FSIA Precludes Enforcement of Arbitral Award Against Property Held by the Government of India Outside the US

FSIA Commercial Activity Exception Inapplicable Because Plaintiff’s Interest in Repayment of US Loans Was Indirect, and Plaintiff Otherwise Failed to Demonstrate Seizure of Bank was a Violation of International Law Rather than a “Regulatory Action”

Antitrust/Competition/Foreign Trade Antitrust Improvements Act (FTAIA)

FTAIA Does Not Block Antitrust Claims Based on Sales of Finished Products Containing Price-Fixed Component to US Customers

Conduct of Beneficially-Controlled US Company Imputed to Owners for Jurisdictional Purposes

Arbitration

FSIA Precludes Enforcement of Arbitral Award Against Property Held by the Government of India Outside the US

Computer Fraud and Abuse Act of 1984 (“CFAA”)

CFAA Applies Extraterritorially and Can Reach Claim of Violation by Expedia’s Use of “Data Scraping” Program on Ryanair’s Website in Ireland

"Domestic" Violation of CFAA Established by Gaining Illegal Access to Nearly 2,000 US Computers

Foreign Corrupt Practices Act (FCPA)

Conspiracy and Aiding-and-Abetting Charges Cannot Expand Territorial Reach of the FCPA to a Non-US Defendant Who Otherwise Would Not Be Liable for His Ex-US Conduct

Intellectual Property – Copyrights

No Copyright Infringement or Damages Where Infringing Videogame Was Uploaded to and Downloaded from Apple App Store Servers in California From Non-US Locations

Intellectual Property – Patents

Dutch Parent Exercises Insufficient Control over US Subsidiary to be Deemed its “Alter Ego”

Personal Jurisdiction Over Brazilian Company Upheld Despite Role of Third Party in Conduct Targeting the US

Appointment of US Distributor Showed Targeting of US Market Sufficient to Support Personal Jurisdiction Under Rule 4(k)(2)

Personal Jurisdiction in Texas Exists Where Chinese Cell Phone Manufacturer Distributed All its Products Through a Texas-Based US Subsidiary

In Patent Infringement Suit Between Two US Companies Selling a Component to Apple for Use in iPhones, 98.8% of Infringing Sales Excluded Because Patent Holder Could Not Establish that They Reflected US Domestic Sales

Supreme Court Holds that Damages Based on Export of Infringing Product from the US did not Implicate Potential Extraterritorial Application of Patent Act

Intellectual Property – Trademark

Claimed Use of US Trademark in Croatia Cannot Support Lanham Act Claim Where No Effect on US Commerce Shown

UK Boatbuilder that Shipped Partially-Completed Products to the US and Did Not Install Allegedly Counterfeit and Infringing Plaques in Them Not Subject to Lanham Act Claim

Personal Jurisdiction Asserted Over Operator of German Website Providing Cloud-Based Services Based on the Volume of Business Transacted with US Customers

Factual Disputes Over the Effect of Ex-US Sales of Infringing Tires on the US Market Require Trial Before Applicability of the Lanham Act can be Determined

Racketeer Influenced and Corrupt Organizations Act (RICO)

Failure of Chinese Company Does Not Constitute US “Domestic Injury” Even Though Precipitated by Loss of Potential US Customers

Securities Law/Commodities Exchange Act (CEA)

Focus of Inquiry in Determining Whether Cross-Border Transaction Is Subject to US Securities Laws Should Be Formation of the Agreement To Buy Shares

Personal Jurisdiction Over Non-US Executives Upheld Where They Each Signed US Securities Law Filings

CEA Applies to Trades Cleared and Settled on Korean Exchange Because their Earlier “Matching” on the Globex Exchange in Illinois Established a Binding US Contract

Complaint Failed To Establish That Acquisitions of Stock in Swiss Entity and Promissory Note From Swiss National Were Acquired in US “Domestic” Transactions

Court of Appeals Finds US Securities Laws Applicable to Trades in ADRs Because They Were Consummated in US

Personal Jurisdiction/Forum Non Conveniens

US Company’s Failure To Provide Evidence of an Adequate Alternative Forum Fatal to Its Motion To Dismiss on Forum non Conveniens Grounds

Forum non Conveniens Defense defeated in Part Because Choice of Law Provision Inadequate to Show that UK Forum was Adequate

Dutch Parent Exercises Insufficient Control over US Subsidiary to be Deemed its “Alter Ego”

Indiana Plaintiff Cannot Sue Korean Water-Heater Manufacturer for Defective Product Purchased in Forum State

Specific Personal Jurisdiction Exists Over UAE Resident Who Traveled to the Forum State to Meet Romantic Partner, Gave Gifts to Her there, and Persuaded Her to Leave with Him

Specific Personal Jurisdiction Based on Imputation of US Contacts by Alleged Co-Conspirator

Personal Jurisdiction Over Brazilian Company Upheld Despite Role of Third Party in Conduct Targeting the US

Personal Jurisdiction Cannot be Based on Sale of German Manufacturer’s Medical Device in Forum by its Distributor

District Court Finds Specific Personal Jurisdiction over Individual Nonresident Defendant Based on his Alter Ego Corporations’ Contracts

Personal Jurisdiction Asserted Over Operator of German Website Providing Cloud-Based Services Based on the Volume of Business Transacted with US Customers

Appointment of US Distributor Showed Targeting of US Market Sufficient to Support Personal Jurisdiction Under Rule 4(k)(2)

Swiss Company Found Not To Have “Transacted Business” in New York Where Complaint Failed To Allege Negotiation of Agreement in New York or “Ongoing Relationship” With an Entity in the State

Personal Jurisdiction in Texas Exists Where Chinese Cell Phone Manufacturer Distributed All its Products Through a Texas-Based US Subsidiary

Specific Personal Jurisdiction Over BMW AG Exists Despite Absence of Evidence of Targeting Forum State

Swiss Device Manufacturer Cannot Be Sued Based on Sales to Distributor with Subsidy in Forum State

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