Opposition Brief — ZF Automotive US, Inc., et al., Petitioners v. Luxshare, Ltd.

Supreme Court briefOct 14, 2021

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No. 21-401

IN THE

Supreme Court of the United States

ZF AUTOMOTIVE US, INC .,

GERALD DEKKER , and CHRISTOPHE MARNAT,

Petitioners,

—v.—

LUXSHARE , LTD .,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

ANDREW RHYS DAVIES

Counsel of Record

BRADLEY S. PENSYL

KENDALL R. PAULEY

ALLEN & OVERY LLP

1221 Avenue of the Americas

New York, New York 10020

(212) 610-6300

andrewrhys.davies@allenovery.com

Attorneys for Respondent

QUESTION PRESENTED

Whether 28 U.S.C. § 1782(a), which authorizes

federal district courts to render assistance in

gathering evidence “for use in a proceeding in a

foreign or international tribunal,” encompasses

foreign arbitral tribunals.

RULE 29.6 DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court,

respondent Luxshare Ltd. hereby states that it

has no parent company and that no publicly held

company owns 10% or more of its stock.

iii

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED . . . . . . . . . . . . . . . . .

RULE 29.6 DISCLOSURE

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . .

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Statutory Background . . . . . . . . . . . . . .

II. Factual Background . . . . . . . . . . . . . . . .

A. Petitioner ZF US Defrauds

Respondent Luxshare . . . . . . . . . . . .

B. To Avoid Statute-of-Limitation Issues,

Luxshare Should Initiate an

Expedited Arbitration Proceeding

in Germany by the End of 2021 . .

III. Procedural Background . . . . . . . . . . . . .

A. The District Court Permits Luxshare

to Take Limited Discovery for Use

Before the German Arbitral

Tribunal . . . . . . . . . . . . . . . . . . . . . . . . .

B. The District Court Compels

Petitioners to Comply with the

Subpoenas, and Denies a Stay

Pending Appeal . . . . . . . . . . . . . . . . . .

PAGE

C. The Court of Appeals Denies

Petitioners’ Motion for a Stay

Pending Appeal . . . . . . . . . . . . . . . . . .

REASONS FOR DENYING THE

PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

This Case Does Not Present the Kind

of Extraordinary Circumstances that

Could Warrant Certiorari Before

Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . .

A. Whether 28 U.S.C. § 1782(a)

Encompasses Foreign Arbitral

Tribunals Is Not a Question of

Imperative Public Importance

Requiring Immediate Determination

in this Court . . . . . . . . . . . . . . . . . . . . .

B. Certiorari Before Judgment Should

Not Be Granted to Facilitate Review

of the Question Presented in the

Now-Dismissed Servotronics

Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

II. This Case Is a Poor Vehicle to Address

the Question Presented . . . . . . . . . . . . .

A. A Ruling on the Question Presented

May Not Be Dispositive of this Case,

and May Not Even Be Necessary .

B. Like Servotronics, this Case Is Likely

to Be Moot Before this Court Can

Decide the Question Presented . . .

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES

PAGE(S)

Cases

Coleman v. Paccar, Inc.,

424 U.S. 1301 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dames & Moore v. Regan,

453 U.S. 654 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019) . . . . . . . . . . . . . . . . . . . . . . 10

Fund for Prot. of Inv. Rts. in Foreign States

Pursuant to 28 U.S.C. § 1782 for Ord.

Granting Leave to Obtain Discovery for use in

Foreign Proceeding v. AlixPartners, LLP

5 F.4th 216 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . 17

Graham v. Goodcell,

282 U.S. 409 (1931) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Gratz v. Bollinger,

539 U.S. 244 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Hannah v. Larche,

363 U.S. 420 (1960) . . . . . . . . . . . . . . . . . . . . . 13, 14

In re Application to Obtain Discovery for Use

in Foreign Proceedings (Abdul Latif

Jameel Transp. Co. v. FedEx Corp.),

939 F.3d 710 (6th Cir. 2019) . . . . . . . . . . . . . 3, 16

In Re Guo,

965 F.3d 96 (2d Cir. 2020) . . . . . . . . . . . . . . . . . . 17

Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 258 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PAGE(S)

Johnson v. U.S. Shipping Bd. Emergency Fleet

Corp.,

280 U.S. 320 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lee v. Tam,

137 S. Ct. 30 (2016) . . . . . . . . . . . . . . . . . . . . . . . . 19

McCulloch v. Sociedad Nacional de Marineros

de Hond.,

372 U.S. 10 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . 13

McElroy v. U.S. ex rel. Guagliardo,

361 U.S. 281 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Mount Soledad Mem’l Ass’n v. Trunk,

573 U.S. 954 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

New Haven Inclusion Cases,

399 U.S. 392 (1970) . . . . . . . . . . . . . . . . . . . . . 13, 14

Porter v. Dicken,

328 U.S. 252 (1946) . . . . . . . . . . . . . . . . . . . . . 12, 13

Porter v. Lee,

328 U.S. 246 (1946) . . . . . . . . . . . . . . . . . . . . . 12, 13

Pro-Football, Inc. v. Blackhorse,

137 S. Ct. 44 (2016) . . . . . . . . . . . . . . . . . . . . . . . . 19

Reid v. Covert,

354 U.S. 1 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Robicheaux v. George,

574 U.S. 1108 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 11

Servotronics, Inc. v. Boeing Co.,

954 F.3d 209 (4th Cir. 2020) . . . . . . . . . . . . . . . . 17

vii

PAGE(S)

Servotronics, Inc. v. Rolls-Royce PLC,

975 F.3d 689 (7th Cir. 2020) . . . . . . . . . . . . . . . . 17

Trump v. Stockman,

139 S. Ct. 946 (2019) . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Booker,

543 U.S. 220 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Nixon,

418 U.S. 683 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Thomas,

361 U.S. 950 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Virginia, ex rel Cuccinelli v. Sebelius,

567 U.S. 951 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . 11

White v. Mechs.’ Sec. Corp.,

269 U.S. 283 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . 10

Statutes

28 U.S.C. § 1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 1782(a) . . . . . . . . . . . . . . . . . . . . . . . passim

Rules

Fed. R. Civ. P. 72(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

S. Ct. R. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 13, 14

S. Ct. R. 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

viii

PAGE(S)

Other Authorities

James Lindgren & William P. Marshall, The

Supreme Court’s Extraordinary Power to

Grant Certiorari Before Judgment in the Court

of Appeals, 1986 Sup. Ct. Rev. 259

(1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

S. Shapiro, et al., Supreme Court Practice

(11th ed. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16

INTRODUCTION

Petitioners seek a writ of certiorari before

judgment to address a narrow question of civil

procedure—whether 28 U.S.C. § 1782(a), which

authorizes federal district courts to render

assistance in gathering evidence “for use in a

proceeding in a foreign or international tribunal,”

encompasses foreign arbitral tribunals. This

Court granted certiorari to resolve that question

in Servotronics v. Rolls-Royce PLC, No. 20-794,

but Servotronics was dismissed by stipulation of

the parties on mootness grounds before this Court

could rule.

This unsettled question concerning the scope of

§ 1782(a) may support the grant of certiorari when

another suitable case is brought to this Court.

This is not that case. Neither this case nor the

question presented are of such imperative public

importance as to satisfy the exacting standard for

certiorari before judgment. And this Court’s

precedents offer no support for Petitioners’ novel

suggestion that certiorari before judgment should

be granted to create a vehicle to resolve the

question this Court would have answered in

Servotronics had that case not been dismissed.

Moreover, this case is a poor vehicle to address

the question of whether § 1782(a) applies to

foreign arbitral tribunals. A ruling on the

question presented may not be dispositive of this

case, and may not even be necessary to resolve

this case. Petitioners contend that, even if

§ 1782(a) applies to foreign arbitral tribunals as a

general matter, the order compelling § 1782(a)

discovery in this case must be vacated for several

case-specific reasons. Thus, a ruling by this Court

may not finally resolve this case. And a ruling on

the scope of § 1782(a) could be unnecessary here if

the court of appeals were to accept any of

Petitioners’ case-specific arguments. This is not,

therefore, a case that warrants skipping over the

court of appeals.

This is a poor vehicle for the further reason that

this case, like Servotronics, is likely to become

moot before this Court can rule. To avoid statuteof-limitation issues, the request for arbitration

should be filed by December 31, 2021. The arbitral

tribunal should render its award within six

months of the procedural hearing. Doubtless,

Petitioners would oppose any request to extend

the six-month deadline to wait for the § 1782(a)

discovery, and there can be no guarantee that the

arbitral tribunal would grant such an extension.

Moreover, due to the expedited process, as a

practical matter, Respondent’s December 2021

request for arbitration needs—if at all possible—

to incorporate the evidence that Respondent seeks

through this § 1782(a) proceeding.

Meanwhile, a petition for writ of certiorari was

recently filed in another case that presents the

question of whether § 1782(a) encompasses

foreign arbitral tribunals. 1 According to the

petitioner, that other case represents a superior

vehicle to address the question presented. Among

other factors, the parties to that case have agreed

AlixPartners, LLP v. The Fund for Prot. of Inv.

Rights in Foreign States, pet. for cert. docketed, No. 21-518

(Oct. 7, 2021).

a stay such that the case is not likely to become

moot before this Court can rule.

The petition for writ of

judgment should be denied.

certiorari

before

STATEMENT

I. Statutory Background

28 U.S.C. 1782(a) authorizes a district court to

order a person “to give his testimony or statement

or to produce a document or other thing for use in

a proceeding in a foreign or international tribunal,

including criminal investigations conducted

before formal accusation.” 28 U.S.C. § 1782(a)

(emphasis added).

In In re Application to Obtain Discovery for Use

in Foreign Proceedings (Abdul Latif Jameel

Transp. Co. v. FedEx Corp.), 939 F.3d 710 (6th Cir.

2019), the United States Court of Appeals for the

Sixth Circuit performed a thorough analysis of the

statutory language and context, and concluded

that § 1782(a) encompasses foreign arbitral

tribunals. See id. at 717–31.

Earlier this year, this Court granted certiorari

to resolve a circuit split on the applicability of

§ 1782(a) to foreign arbitral tribunals, but that

case was recently dismissed by stipulation.

Servotronics v. Rolls-Royce PLC, No. 20-794, cert.

granted, 141 S. Ct. 1684 (2021), cert. dismissed,

No. (R46-44 / OT 2020), 2021 WL 4619271 (U.S.

Sept. 29, 2021).

II. Factual Background

A. Petitioner ZF US Defrauds Respondent

Luxshare

Respondent Luxshare Ltd. is a Hong Kong

limited liability company. Dkt. No. 1-5 at 1 (¶ 3). 2

Through its equity investments, Luxshare

engages in manufacturing in the areas of

consumer electronics, communications, and

automotive. Id. Petitioner ZF Automotive US Inc.

(“ZF US”) is a Michigan-based manufacturer of

automotive parts. Dkt. No. 1-6 at 2–3 (¶ 6); see

Pet. at 6. Petitioners Marnat and Dekker are

Michigan residents, and, respectively, current and

former senior officers of ZF US. Dkt. No. 1-6 at 3

(¶¶ 7–8), No. 1-7 at 3 (¶ 7); see Pet. at 6.

In August 2017, Luxshare purchased two

business units from ZF US for approximately $1

billion. Dkt. No. 1-5 at 2 (¶ 5). The parties entered

into

the

German

law-governed

purchase

agreement in Germany. Id.; Dkt. No. 6-2

(PageID.266) (¶ 20.10.1). The transaction closed

in Germany in April 2018. Dkt. No. 1-5 at 6 (¶ 18).

Luxshare subsequently learned that ZF US had

concealed

material

negative

developments

concerning several of the acquired businesses’

largest customers. Dkt. No. 1-5 at 3 (¶ 7), 6 (¶ 19),

No. 1-7 at 4–9 (¶¶ 9–22). Petitioners Dekker and

Marnat were directly involved in the due diligence

Citations to “Dkt. No. __” refer to documents filed

below in In re Application for an Order Pursuant to 28

U.S.C. § 1782 to Conduct Discovery for Use in Foreign

Proceedings, No. 2:20-mc-51245 (E.D. Mich.). Citations to

“CA6 ECF No. __” refers to documents filed in Luxshare,

Ltd. v. ZF Automotive US, Inc., No. 21-2736 (6th Cir.). The

Appendix to the Petition is cited as “App. __”.

process and they were aware of at least some of

the undisclosed information. Dkt. No. 1-5 at 8

(¶ 24), No. 1-6 (¶ 9), No. 1-7 at 6 (¶ 17), 8 (¶ 20).

ZF US’s concealment of material negative

information violated the applicable German law

and inflated the purchase price paid by Luxshare

by hundreds of millions of dollars. Dkt. No. 13-1

at 2 (¶ 3).

B. To

Avoid

Statute-of-Limitation

Issues,

Luxshare Should Initiate an Expedited

Arbitration Proceeding in Germany by the

End of 2021

Pursuant

the

purchase

agreement,

Luxshare’s claims must be arbitrated in Munich,

Germany, under the fast-track Supplementary

Rules for Expedited Proceedings of the

Arbitration Rules of the German Institution of

Arbitration e.V. (known as the “DIS Rules”). Dkt.

No. 1-6 at 6 (¶ 18); see Dkt. No. 6-2 (PageID.266)

(¶ 20.10.2). Luxshare intends to initiate that

arbitration. Dkt. No. 1-6 at 5 (¶ 14), 10 (¶¶ 28–

30). To avoid statute-of-limitation issues, the

request for arbitration should be filed by

December 31, 2021. Dkt. No. 13-2 at 14–15 (¶ 32).

Once Luxshare has filed its request for

arbitration and ZF US has answered, the parties

are limited to one written submission each, and

there will be only one oral hearing. Dkt. No. 1-6 at

7 (¶ 19), No. 13-2 at 13–14 (¶ 29). The tribunal

should render its award within six months of the

case management conference. Dkt. No. 1-6 at 7

(¶ 19), No. 13-2 at 13–14 (¶ 29). As a practical

matter, the expedited process requires that

Luxshare’s

December

2021

request

for

arbitration—if at all possible—incorporate the

evidence in support of Luxshare’s case, including

the evidence to be gathered through this § 1782

proceeding. Dkt. No. 13-2 at 13–14 (¶ 29).

III.

Procedural Background

A. The District Court Permits Luxshare to

Take Limited Discovery for Use Before the

German Arbitral Tribunal

In October 2020, the district court authorized

Luxshare to issue subpoenas to Petitioners

pursuant to 28 U.S.C. § 1782(a), to secure

evidence pertaining to ZF US’s concealment of

material information from Luxshare. App. 20a–

21a; see Dkt. No. 1-6 (¶ 15). ZF US asserts that

Luxshare will not prevail on its claims without the

evidence of fraudulent intent that Luxshare seeks

through this § 1782 proceeding. Dkt. No. 6-2

(PageID.258) (¶ 18); see also Dkt. No. 1-6 at 7

(¶ 19).

In May 2021, a magistrate judge granted in part

and denied in part Petitioners’ motion to quash

the subpoenas. Id. at 22a–56a. The magistrate

judge weighed the discretionary “factors that bear

consideration in ruling on a § 1782(a) request,”

Intel Corp. v. Advanced Micro Devices, Inc., 542

U.S. 258, 264–66 (2004), and rejected Petitioners’

contention that those factors required the denial

of discovery. App. 30a–56a. Instead, the

magistrate judge determined that, under the facts

and circumstances of this case, the “Intel” factors

militate in favor of limiting the scope of discovery

from that requested. App. 30a–56a. Therefore,

Luxshare would be permitted to depose Dekker or

Marnat, but not both, and document discovery

would be limited in several ways, including

through the imposition of a narrowed time frame

and search terms, and by limiting the search to

the emails of two custodians and documents held

on ZF US’s shared drives. App. 49a–56a. 3

In July 2021, the district court rejected

Petitioners’ objections to the magistrate judge’s

ruling. App. 1a–19a. The district court also

affirmed the magistrate judge’s decision not to

stay the proceeding pending this Court’s decision

in Servotronics, Inc. v. Rolls-Royce PLC, No. 20794, as to whether § 1782 authorizes assistance in

gathering evidence for use before a foreign

arbitral tribunal. App. 17a–19a. The district court

noted, in particular, the imminent expiration of

the German limitation period, and the significant

limitations the magistrate judge imposed on the

scope of the discovery. Id.

B. The District Court Compels Petitioners to

Comply with the Subpoenas, and Denies a

Stay Pending Appeal

Even after the district court declined to quash

the § 1782 subpoenas, Petitioners refused to

comply with them. Therefore, in July 2021,

Luxshare filed a motion to compel, Dkt. No. 31,

which the district court granted in August 2021,

App. 57a.

The magistrate judge also rejected Petitioners’

argument that § 1782(a) is inapplicable because Luxshare

has not yet commenced an arbitration. As the magistrate

judge correctly held, § 1782 is satisfied because Luxshare’s

arbitration is “‘within reasonable contemplation.’” App. 28a

(emphasis in original) (citing Intel Corp. v. Advanced Micro

Devices, Inc., 542 U.S. 258–59 (2004)). Under Federal Rule

of Civil Procedure 72(a), Petitioners waived any objection

to that ruling by not raising it with the district judge. Dkt.

No. 27.

For their part, in July 2021, Petitioners moved

for a stay pending appeal, Dkt. No. 30, which the

district court denied in August 2021, App. 57a. In

doing so, the district court recognized the harm

that Luxshare would suffer if it does not receive

the requested discovery in time for the expedited

arbitration, and aptly determined that “[f]or a

multi-billion company like ZF US, the time and

money required to produce a limited category of

emails and conduct a single deposition is clearly

not irreparable harm.” App. 64a, 66a–67a.

C. The Court of Appeals Denies Petitioners’

Motion for a Stay Pending Appeal

Without waiting for the district court to rule on

their motion for a stay pending appeal, in July

2021, Petitioners filed a notice of appeal, Dkt. No.

32, and sought a stay pending appeal from the

court of appeals, CA6 ECF No. 8.

Petitioners contend that the district court

committed three errors that require reversal,

independent of the question of whether § 1782(a)

encompasses foreign arbitral tribunals: (1) the

district judge applied the wrong standard of

review to the magistrate judge’s ruling—an issue

that, according to Petitioners “may well be

outcome-determinative;” and (2) the district court

erred in its consideration of two of the Intel

discretionary factors: (a) the receptivity of the

German arbitral tribunal to § 1782 discovery, and

(b) whether Luxshare is seeking to evade foreign

proof-gathering restrictions. CA6 ECF No. 8 at

16–17; see also CA6 ECF No. 19. According to

Petitioners, each of these arguments “provides an

independent basis” to vacate the grant of § 1782

discovery. CA6 ECF No. 8 at 13–15.

Without waiting for the court of appeals to rule

on the motion to stay, in September 2021,

Petitioners filed the present petition for a writ of

certiorari before judgment.

On October 13, 2021, the court of appeals denied

Petitioners’ motion to stay pending appeal. CA6

ECF No. 31-2. The court of appeals determined

that Petitioners had “failed to show that the

minimal and nonconfidential discovery here would

constitute irreparable harm,” and that they also

had “not shown the requisite likelihood of success

on the merits of [their] appeal.” Id. at 3.

REASONS FOR DENYING THE PETITION

I. This Case Does Not Present the Kind of

Extraordinary Circumstances that Could

Warrant Certiorari Before Judgment

A. Whether 28 U.S.C. § 1782(a) Encompasses

Foreign Arbitral Tribunals Is Not a

Question of Imperative Public Importance

Requiring Immediate Determination in

this Court

This Court grants certiorari before judgment

“only upon a showing that the case is of such

imperative public importance as to justify

deviation from normal appellate practice and to

require immediate determination in this Court.”

S. Ct. R. 11. This is a “very demanding standard.”

Mount Soledad Mem’l Ass’n v. Trunk, 573 U.S.

954, 954 (2014) (Alito, J., respecting denial of

certiorari before judgment); see also Coleman v.

Paccar, Inc., 424 U.S. 1301, 1304 n.* (1976) (grant

of certiorari before judgment is an “extremely rare

occurrence”) (Rehnquist, J., in chambers).

Thus, certiorari before judgment has been

granted in cases that are of “great constitutional

significance” or that have “extraordinary national

importance for other reasons.” S. Shapiro, et al.,

Supreme Court Practice § 4.20 (11th ed. 2019,

online) (collecting cases). But even then, “the

public interest in a speedy determination” must be

sufficiently “exceptional” to “warrant skipping the

court of appeals in this fashion.” Id. 4 Certiorari

before judgment was therefore granted to address

a time-sensitive constitutional and statutory

challenge to the 2020 census questionnaire, Dep’t

of Com. v. New York, 139 S. Ct. 2551, 2565 (2019),

a constitutional challenge to the federal

sentencing guidelines that had caused “disarray

among the Federal District Courts,” Mistretta v.

United States, 488 U.S. 361, 371 (1989), a dispute

that threatened to cause the United States to

violate the executive agreement that ended the

Iranian hostage crisis, Dames & Moore v. Regan,

453 U.S. 654, 660 (1981), and challenges to

President Nixon’s refusal to turn over the

Watergate tapes to a federal grand jury, United

States v. Nixon, 418 U.S. 683, 686–87 (1974), and

to President Truman’s wartime seizure of the

national steel industry, Youngstown Sheet & Tube

Co. v. Sawyer, 343 U.S. 579, 584 (1952).

This case and the civil-procedure question it

presents cannot hold their own alongside the

These cases have been classified into three broad

categories: constitutional challenges to federal statutes;

foreign policy cases; and cases implicating the institutional

authority of the federal government. See James Lindgren &

William P. Marshall, The Supreme Court’s Extraordinary

Power to Grant Certiorari Before Judgment in the Court of

Appeals, 1986 Sup. Ct. Rev. 259, 288–95 (1986).

kinds of extraordinary cases in which this Court

has granted certiorari before judgment. Indeed,

certiorari before judgment has been denied in

much more significant cases than this, including

cases concerning restrictions on military service

by transgender individuals, Trump v. Stockman,

139 S. Ct. 946 (2019), state-law non-recognition of

same-sex marriages, Robicheaux v. George, 574

U.S. 1108 (2015), and the Affordable Care Act’s

individual mandate, Virginia, ex rel Cuccinelli v.

Sebelius, 567 U.S. 951 (2012).

To be sure, the question of whether § 1782(a)

encompasses foreign arbitral tribunals was

sufficiently important to warrant a grant of

certiorari under Rule 10 in Servotronics v. RollsRoyce PLC, No. 20-794, cert. granted, 141 S. Ct.

1684 (2021). But—contrary to Petitioners’

assertion, Pet. at 18—it does not follow that that

issue or this case is sufficiently extraordinary to

warrant certiorari before judgment under Rule 11,

or that this case is an appropriate vehicle to

review the issue. Illustrating the significantly

higher standard applicable to certiorari before

judgment, there are numerous examples of this

Court denying certiorari before judgment, and

later granting certiorari after a decision by the

court of appeals. 5

Petitioners’ arguments about the need to resolve

the circuit split on the question of whether

§ 1782(a) encompasses foreign arbitral tribunals,

Pet. at 13–16, may support the grant of certiorari

after judgment when this Court is presented

See The Supreme Court’s Extraordinary Power to

Grant Certiorari Before Judgment in the Court of Appeals,

supra, at 289 n.159 (collecting cases).

another suitable vehicle. For the

articulated below, this is not that case.

reasons

B. Certiorari Before Judgment Should Not

Be Granted to Facilitate Review of the

Question Presented in the Now-Dismissed

Servotronics Case

No basis exists for Petitioners’ novel argument

that this Court should grant certiorari before

judgment so that this case can serve as a vehicle

to answer the question that Servotronics

presented before it was dismissed. Pet. at 16–19.

The parties in Servotronics recently stipulated to

dismissal under Rule 46, apparently because the

arbitration had ended, rendering the case moot.

Servotronics, No. 20-794, cert. dismissed, No.

(R46-44 / OT 2020), 2021 WL 4619271 (U.S. Sept.

29, 2021); see Pet. at 16.

Petitioners are not assisted by their reference to

“eleven examples” over the last eighty-five years

in which this Court has granted certiorari before

judgment “‘when a similar or identical question of

constitutional or other importance was before the

Court in another case,’” and where granting

review in a second case would facilitate review of

the question presented in the first case. Pet. at 19

(quoting Supreme Court Practice, supra, ¶ 4.20).

None of those examples involved a grant of

certiorari before judgment to permit review of a

question presented in a prior case that had been

dismissed. In particular, and contrary to

Petitioners’ theory, Pet. at 19, this Court granted

certiorari before judgment in Porter v. Dicken, 328

U.S. 252 (1946), not because the first case, Porter

v. Lee, 328 U.S. 246 (1946), was moot, but rather

“by reason of the close relationship of the

important question raised to the question

presented in [Lee].” Dicken, 328 U.S. at 254. 6

Moreover, even if Servotronics were still

pending, the examples that Petitioners reference

do not support the issuance of a writ of certiorari

here. Most of those examples involved cases that

formed part of a single overarching controversy,

arising from a single event or course of conduct, or

involving the same or overlapping parties. 7 In at

Porter v. Lee, 328 U.S. 246 (1946), and Porter v.

Dicken, 328 U.S. 252 (1946), involved cases brought by the

same petitioner, the Price Administrator, to vindicate his

powers under the Emergency Price Control Act. Id. at 253;

Lee, 328 U.S. at 249.

See New Haven Inclusion Cases, 399 U.S. 392, 398,

413–18 (1970) (two cases presenting related issues arising

from the same railroad merger); McCulloch v. Sociedad

Nacional de Marineros de Hond., 372 U.S. 10, 12 & n.1

(1963)

(two

cases

challenging

NLRB

determinations); Hannah v. Larche, 363 U.S. 420, 421–22

& n.3 (1960) (two cases challenging the conduct of the

Commission on Civil Rights in Louisiana); McElroy v. U.S.

ex rel. Guagliardo, 361 U.S. 281, 307 (1960) (two cases

challenging the armed forces’ application of the Uniform

Code of Military Justice to civilian employees); Reid v.

Covert, 354 U.S. 1, 3–5 (1957) (two cases challenging the

armed forces’ application of the Uniform Code of Military

Justice to the spouses of service members); Graham v.

Goodcell, 282 U.S. 409 (1931) (several taxpayer cases

pressing the same argument against the Internal Revenue

Service); Johnson v. U.S. Shipping Bd. Emergency Fleet

Corp., 280 U.S. 320, 322–25 (1930) (three cases presenting

the applicability of the Suits in Admiralty Act to vessels

owned by the United States); White v. Mechs.’ Sec. Corp.,

269 U.S. 283, 298–99 (1925) (several cases challenging the

availability of funds held by the U.S. government to satisfy

debts of the Imperial German government). The last three

examples also pre-date the 1954 addition of the “imperative

public importance” requirement to the predecessor of Rule

least two of those instances, certiorari before

judgment was granted because the first case was

a direct appeal from a three-judge district court

under 28 U.S.C. § 1253, and therefore arrived in

this Court while the second, related case was in

the court of appeals. 8 These examples offer no

support for Petitioners’ request for certiorari

before judgment to take up this case that—save

for the legal question presented—has nothing do

with any other case before this Court.

In the remaining examples, the “second” case,

Pet. at 19, would independently satisfy Rule 11’s

strict standard by raising urgent constitutional

questions of imperative public importance, such

as the permissibility of imposing an enhanced

sentence based on facts not found by a jury or

admitted by the defendant, United States v.

Booker, 543 U.S. 220, 229 (2005), the use of racial

preferences in college admissions, Gratz v.

Bollinger, 539 U.S. 244, 259–60 (2003), and the

obstruction of minority voter registration, United

States v. Thomas, 361 U.S. 950, 950 (1960). These

examples offer no support for Petitioners’ request

for certiorari before judgment to review the

important but undeniably esoteric question of

civil procedure presented here.

II. This Case Is a Poor Vehicle to Address the

Question Presented

Even if the demanding Rule 11 standard were

otherwise satisfied, certiorari before judgment

11. S. Ct. R. 20, 346 U.S. 968 (adopted April 12, 1954,

effective July 1, 1954).

See New Haven Inclusion Cases, 399 U.S. at 418;

Hannah, 363 U.S. at 422 & n.3.

should still be denied because this case is a poor

vehicle to address the question of whether 28

U.S.C. § 1782(a) encompasses foreign arbitration

tribunals. First, Petitioners have told the court of

appeals that the district court’s order must be

vacated even if § 1782(a) encompasses foreign

arbitral tribunals. If that is correct, a ruling on

the question presented will not be dispositive of

the present case. And if the court of appeals

reverses the district court’s order on other

grounds, there may be no need in this case for a

definitive ruling on the question presented.

Second, as in Servotronics, this case is likely to

become moot before this Court can rule on the

question presented.

A. A Ruling on the Question Presented May

Not Be Dispositive of this Case, and May

Not Even Be Necessary

This case is a poor vehicle to address the

question

presented

because,

contrary

Petitioners’ assertion, it does not “cleanly

present[] the same pure legal question presented

in Servotronics.” Pet. at 16.

Petitioners contend that the district court

committed three errors, each of which they say

“provides an independent basis” to vacate the

order granting § 1782 discovery even if § 1782(a)

encompasses foreign arbitral tribunals: (1) the

district court applied the wrong standard of

review to the magistrate judge’s ruling—an issue

that, according to Petitioners “may well be

outcome-determinative;” and (2) the district court

misapplied two of the Intel discretionary factors

when it considered: (a) the receptivity of the

German arbitral tribunal to § 1782 discovery, and

(b) whether Luxshare is seeking to evade foreign

proof-gathering restrictions. CA6 ECF No. 8 at

13–17; see also CA6 ECF No. 19.

Under these circumstances, a ruling on the

question presented may turn out to be advisory,

and unnecessary to the adjudication of the present

case. If this Court grants certiorari before

judgment and rules that § 1782(a) encompasses

private arbitral tribunals, Petitioners would press

their “independent” case-specific arguments on

remand. If the court of appeals accepts any of

those arguments, the applicability of § 1782(a) to

foreign arbitral tribunals will be academic in the

present case. Granting certiorari here would

therefore represent the antithesis of the “efficient

assistance” that Congress intended § 1782 to

facilitate. In re Application to Obtain Discovery

for Use in Foreign Proceedings (Abdul Latif

Jameel Transp. Co. v. FedEx Corp.), 939 F.3d 710,

730 (6th Cir. 2019).

If, on the other hand, this Court denies

certiorari before judgment and the court of

appeals

reverses

based

Petitioners’

“independent” case-specific arguments, then,

again, whether § 1782(a) encompasses foreign

arbitral tribunals will be academic here. In short,

this is not a case that “warrant[s] skipping the

court of appeals” through a grant of certiorari

before judgment. Supreme Court Practice, supra,

§ 4.20.

Moreover, although there is no reason for the

court of appeals to revisit its well-reasoned and

correct 2019 holding that § 1782(a) encompasses

foreign arbitral tribunals, Abdul Latif Jameel

Transp. Co., 939 F.3d 710, Petitioners could

request en banc review, pointing to the

proliferation of intervening appellate rulings on

the issue. See Fund for Prot. of Inv. Rts. in Foreign

States Pursuant to 28 U.S.C. § 1782 for Ord.

Granting Leave to Obtain Discovery for Use in

Foreign Proceeding v. AlixPartners, LLP, 5 F.4th

216 (2d Cir. 2021), pet. for cert. docketed, No. 21518 (Oct. 5, 2021); Servotronics, Inc. v. RollsRoyce PLC, 975 F.3d 689 (7th Cir. 2020); In Re

Guo, 965 F.3d 96 (2d Cir. 2020); Servotronics, Inc.

v. Boeing Co., 954 F.3d 209 (4th Cir. 2020). And

the question of whether § 1782(a) encompasses

foreign arbitral tribunals is presented by two

further cases that have been briefed, argued, and

submitted to the Third and Ninth Circuits. See In

re EWE Gasspeicher GmbH, No. 20-1830 (3d Cir.);

HRC-Hainan Holding Co. v. Yihan Hu, Case No.

20-15371 (9th Cir.). In the event Petitioners

persuaded the court of appeals to change course

on the question presented, there would be no need

for them to seek certiorari.

B. Like Servotronics, this Case Is Likely to Be

Moot Before this Court Can Decide the

Question Presented

This case is a poor vehicle to review the

question presented for the additional reason that

it is likely—as in Servotronics—to become moot

before this Court can decided the question

presented.

To avoid statute-of-limitation issues, the

request for arbitration should be filed by

December 31, 2021. Supra at 5–6. Once Luxshare

has filed its request for arbitration and ZF US has

answered, the parties are limited to one written

submission each, and there will be only one oral

hearing. Supra at 5. Given the expedited process,

as a practical matter Luxshare needs—if at all

possible—to incorporate the discovery sought

under § 1782(a) into its December 2021 filing.

Supra at 5–6. The arbitrators should render their

award within six months of the procedural

hearing. Supra at 6. Doubtless, Petitioners would

oppose any request to extend the six-month

deadline to wait for the § 1782(a) discovery, and

there can be no guarantee that the arbitral

tribunal would grant such an extension.

Therefore, it is not likely that this Court will be

able to render a decision on the question

presented in time for the § 1782 discovery to be

used before the arbitral tribunal, especially given

that Petitioners would seek on remand to press

their “independent” arguments for vacatur of the

order compelling discovery.

ZF US cannot avoid mootness by making

shifting suggestions about a potential willingness

to toll the German limitation period. ZF US has

repeatedly represented that it would be “happy” to

enter into a formal tolling stipulation, Dkt. No. 36

at 13 n.6; CA6 ECF No. 20 at 7, but it has never

proffered such an instrument, signed by ZF US or

by a person with authority. To the contrary, it has

offered only statements from counsel, in which the

hypothetical waiver becomes more and more

limited and conditional with each retelling. It

began as a commitment to “toll the statute of

limitations on any claims that Luxshare is

purporting to bring in the foreign arbitration

related to the parties’ agreement” through the

resolution of proceedings in the court of appeals,

but apparently did not extend to proceedings

before this Court. Dkt. No. 30 at 3, 16. That

commitment was soon further conditioned upon

the court of appeals granting a stay. CA6 ECF No.

20 at 7, 9–10. Most recently, the hypothetical

tolling would apply only “until four months after

any stay of discovery entered by the Sixth Circuit

or this Court expires.” Pet. at 17. Luxshare cannot

risk losing claims worth hundreds of millions of

dollars on statute-of-limitation grounds based on

these insubstantial, ever-changing statements.

As such, Luxshare intends to initiate the

arbitration by December 31, 2021.

Meanwhile, other cases that are pending in or

that have recently been resolved by the courts of

appeals may present this Court one or more

appropriate vehicles to decide the question

presented. Supra at 17. In particular, a petition

for writ of certiorari was recently filed in

AlixPartners, LLP v. The Fund for Protection of

Investor Rights in Foreign States, pet. for cert.

docketed, No. 21-518 (Oct. 7, 2021), raising the

question of whether § 1782(a) applies to arbitral

tribunals. 9 The parties in AlixPartners have

entered into a stipulation that obviates the

mootness risk that caused the dismissal of

Servotronics and that very likely will afflict the

present case. See AlixPartners Pet. at 22–23.

Moreover, the AlixPartners case arises from an

investor-state arbitration. Id. at 2. The United

States has expressed “particular concern” about

This Court recently denied certiorari before

judgment when—as here—another case presented the same

questions in the context of an ordinary post-judgment

petition for writ of certiorari. See Pro-Football, Inc. v.

Blackhorse, 137 S. Ct. 44 (2016) (denying certiorari before

judgment); Lee v. Tam, 137 S. Ct. 30 (2016) (granting

certiorari).

the application of § 1782(a) to investor-state

arbitral tribunals. Servotronics, Br. for the United

States as Amicus Curiae Supporting Respondents

at 15 (June 28, 2021). Granting certiorari in

AlixPartners

will

afford

this

Court

the

opportunity to address the applicability of

§ 1782(a) to foreign arbitral tribunals and to

address any additional considerations presented

by investor-state arbitrations, all with the benefit

of the Second Circuit’s ruling.

Finally, there is no reason for this Court to hold

this case in the event it grants certiorari in

AlixPartners. The present case should proceed in

the ordinary course before the court of appeals,

where Petitioners can press, at a minimum, their

“independent” arguments for reversal. Supra at 8.

If this case remains live when the court of appeals

disposes of the appeal, and the question of

whether § 1782(a) encompasses foreign arbitral

tribunals remains relevant in this case and

unresolved by this Court, the losing party can

then file a petition for a writ of certiorari to

resolve that question.

CONCLUSION

The petition for writ of certiorari before

judgment should be denied.

Respectfully submitted,

Andrew Rhys Davies

Counsel of Record

Bradley S. Pensyl

Kendall R. Pauley

A LLEN & O VERY LLP

1221 Avenue of the Americas

New York, New York 10020

Tel: (212) 610-6300

andrewrhys.davies@allenovery.com

Attorneys for Respondent

Dated October 14, 2021

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