The World in U.S. Courts:
Summer 2017

Decisions Discussed in This Issue

Please click the links below to read a summary of the decision listed. 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)/Political Question Doctrine

US Supreme Court Holds That the Existence of Property and its Expropriation “in Violation of International Law” Must be Established at the Outset of Litigation for the FSIA’s “Expropriation Exception” to Apply

US Personal Injury Litigation Arising from Fukushima Nuclear Power Accident Found not Subject to Dismissal Under the Political Question Doctrine

Venezuela’s Repatriation of Assets From its US Subsidiary to Avoid Potential Enforcement of Arbitration Award in the US Does not Satisfy the FSIA’s “Commercial Activity” Exception

Alleged Fraud by Petrobas Inducing American Funds to Invest in Failed Project Satisfies “Commercial Activity” Exception to FSIA

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

“Import Commerce” and Effect on US Competition Exceptions to FTAIA Satisfied Where US was a Significant Direct and Indirect Target for Sales of Price-Fixed Components

Evidence That Non-US Transactions Were Initiated During Business Hours in New York by Traders Following New York Holiday Schedule Supported “Plausible” Claim That Securities Transactions Occurred on US Exchange


Three-Year Delay in Invoking Arbitration Clause in Contract and Active Pursuit of Litigation Leads to Waiver of Right to Arbitrate and to Invoke English Law

Intellectual Property – Patent

Personal Jurisdiction Over Non-US Defendant Does not Exist in Patent Infringement Case Where Title to Goods Transferred Outside US and Defendant’s Website is Merely “Semi-Interactive”

US Supreme Court Holds That Sale of Patented Product Anywhere in the World “Exhausts” US Patent

Intellectual Property – Trademarks/Lanham Act

Injunction Prohibiting Use of Allegedly Infringing Marks in China Based Solely on Potential Injury to US Plaintiff in US

Intellectual Property – Copyright

Forwarding of Publications From Subscriber in Canada to Nonsubscribers in the UK and Canada Outside the Scope of the Copyright Act

Racketeer Influenced and Corrupt Organizations Act (RICO)

District Court Certifies for Immediate Appeal its Holding That Economic Injury Suffered by the Plaintiff at its Headquarters Outside the US was not a “US Domestic Injury” and Therefore Could not Support a Private RICO Claim

Shipment of Allegedly Infringing Publications From New York Capable of Supporting Claim of US “Domestic Injury”

Securities Law/Commodities Exchange Act (CEA)

Court Discusses but Does not Resolve Question Whether US Federal Agencies may Apply Securities Laws Extraterritorially

Orchestration of Bribery Scheme Outside the US That Allegedly Made US Securities Filings Fraudulent Does not Support Assertion of Personal Jurisdiction Where the Defendant was not Involved in Preparing or Making the Filings

CEA Claim Involving Domestic Securities Transactions Deemed Impermissibly Extraterritorial Because of Potential Conflict With Securities Laws of Other Countries

CEA Applies to US Derivatives Transactions Initiated by Non-US Persons and Involving Non-US Underlying Assets

Circumstantial Evidence That Securities Transactions Were Implemented in New York Sufficient to Support Amendment of Complaint to Allege US “Domestic”

White Collar Criminal Law/Money Laundering

Criminal Forfeiture Upheld in Connection With Global Crimes Despite Underlying Violations not Having Extraterritorial Application

Criminal Violation of Wire Fraud and “Computer Intrusion” Statutes Based on Conduct Occurring Only in Italy

Use of US Banks as Clearinghouses for Dollar-Denominated Wire Transfers Between Non-US Companies and Non-US Accounts Supported Prosecution Based on Money Laundering and Transportation of Stolen Property Even Though Defendant Claimed to be Unaware of The US Connection

Personal Jurisdiction/Forum Non Conveniens

Personal Jurisdiction Exists over Non-US Non-Parties to Litigation That Have “Actual Notice” of Court’s Order

Jurisdiction Over Belgian Company Based on Dispute Resolution Provision in Bill of Lading That was Applied Even to Non-Parties to Shipment, and on Company’s Contacts With the US as a Whole

US Supreme Court Limits Jurisdictions Where Non-US Businesses May Be Sued

US Personal Injury Litigation Arising from Fukushima Nuclear Power Accident Continues—For the Time Being

Claim by Allegedly Defrauded US Funds Arising out of Petrobras Scandal Survives Motion to Dismiss on Forum Non Conveniens Grounds

Employment Agreement Governed by New York Law Inadequate to Obtain Jurisdiction Over Omani Defendants Alleged to Have Breached Contract Performed in Oman

Personal Jurisdiction Defeated Where US Contacts Were Made Principally by Defendant’s Affiliates, and Allegations Failed to Establish Jurisdiction Under “Agency” or “Conspiracy” Theories

No Personal Jurisdiction over Non-US Bank, Trader, and Exchange in Antitrust and Commodities Exchange Act Case because Price-Fixing Activity was Alleged to Have Occurred Exclusively in the UK

Personal Jurisdiction Over Non-US Defendant Does not Exist in Patent Infringement Case Where Title to Goods Transferred Outside US and Defendant’s Website is Merely “Semi-Interactive”

Encounter in the Dominican Republic Leading to Sexually-Transmitted Diseases Suffered by New York Resident Does not Establish Personal Jurisdiction in New York

District Court Finds German Choice-of-Law Contract Provision Enforceable and Dismisses Claim Forum non Conveniens Grounds

Employment Contract Providing That Disputes Should be Resolved in Germany Does not Divest US Court of Personal Jurisdiction Over German Executive

Failure to Allege US-Based Contacts Giving Rise to Claims Dooms Negligence Action Against non-US Airline and Airline-Parts Manufacturer

Ecuadorian Doctor for Florida Cruise Line has Insufficient Connections to Florida to Support Assertion of General Personal Jurisdiction

Eleventh Circuit Affirms Dismissal of Tort and Breach of Contract Claims Against Foreign Tour and Excursion Operator for Lack of Personal Jurisdiction

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