Amicus Curiae Brief — Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 137 S. Ct. 2320 (2017) (No. 16-1220)

No. 16-1220

IN THE

Supreme Court of the United States

ANIMAL SCIENCE PRODUCTS, INC., ET AL.,

Petitioners,

V.

HEBEI WELCOME PHARMACEUTICAL Co. LTD., ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—————

BRIEF OF PROFESSORS OF INTERNATIONAL

LITIGATION AS AMICI CURIAE

IN SUPPORT OF NEITHER PARTY

————————————————— OS 580OOOOm—o—-

JONATHAN S. MASSEY

Counsel of Record

MASSEY & GAIL, LLP

1325 G St. N.W., Suite 500

Washington, D.C. 20005

Tel: (202) 652-4511

jmassey@masseygail.com

Dated: March 2, 2018

BATEMAN & SLADE, NC BOSTON, MASBACH USETTS

TABLE OF AUTHORITIES

I EE Ap icrticsccsasnsenincstiniensncissnecientnntnnnisie l

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY OF

ARGUMENT

I.

IT IS NOT NECESSARY TO

ADDRESS ABSTENTION

BASED ON INTERNATIONAL

COMITY IN ORDER TO

ANSWER THE QUESTION

THE SECOND CIRCUIT'S

DOCTRINE OF ABSTENTION

BASED ON INTERNATIONAL

COMITY CONFLICTS WITH

THE DECISIONS OF THIS

COURT AND THREATENS TO

SUPPLANT MORE

NARROWLY TAILORED

DOCTRINES OF

INTERNATIONAL COMITY..............

A. THE SECOND CIRCUIT'S

ABSTENTION

DOCTRINE CONFLICTS

WITH THE DECISIONS

OF THIS COURT........................

OPPO eee eee eee ee eee eee ee ee eee

SEER EEE EEE EEE EEE EEE EEED

CR The Second Circuit's

Abstention Doctrine

Conflicts With This

Court’s Prescriptive

Comity Decisions............ 10

2. The Second Circuit's

Abstention Doctrine

Conflicts With This

Court’s Adjudicative

Comity Decisions............ 15

B. THE SECOND CIRCUIT'S

ABSTENTION

DOCTRINE THREATENS

TO SUPPLANT MORE

NARROWLY TAILORED

DOCTRINES OF

INTERNATIONAL

SIT vciccosrincicopnetiassinnpnisnetatinicinniecesviicubabaat 21

Fe i ctrtsiniaslasuniessscinnstanperieaninniavtiianviioniaunsens 23

i

TABLE OF AUTHORITIES

CASES:

AAR Int'l, Inc. v. Nimelias Enters. S.A.,

260 F.3d 510 (7th Cir. 3001) .............0....---+.-.. 10

Al-Abood v. El-Shamari,

317 F.3d SB6 (4th Cir. S000) .........00cc00.c0ccceeee. 10

Am. Dredging Co. v. Miller,

ey IEE saenasinccsssnxiindecssnantrvniseonnsesds 7

Answers in Genesis of Kentucky, Inc. v.

Creation Ministries Int'l, Ltd.,

556 F.3d 459 (6th Cir. 2009) .......................... 10

Banco Nacional de Cuba v. Sabbatino,

DUP I I sas 7

Bank of Augusta v. Earle,

- 3h Rel DRY). Fe: Re ReCeeneneneen 6

Cohens v. Virginia,

ED Ue. GB Wr meee.) BG CIGD). ckcccccccsciccrccvesss 15

Colorado River Water Conservation Dist. v.

United States,

a TE wecncsecatkcarsiccetines 4, 10, 15, 16

Continental Ore Co. v.

Union Carbide & Carbon Corp.,

re es ee I pebeiaintcsadcbadsis cvcerctenioontoides 18

ill

Day & Zimmerman, Inc. v. Challoner,

I nn oe a 8

Dole Food Co. v. Patrickson,

RR RIE a ay ae eae 7

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

4 f @ | EERE creenrnee 4,6, 13, 15

French v. Liebmann (In re French),

440 F.3d 146 (4th Cir. 2006) .......................... 14

Gross v. German Found. Indus. Initiative,

466 F.3d 363 (39d Cir. 3006)............................ 10

Hartford Fire Ins. Co. v. California,

Oe, PI CE ceiuikcavncscccncovecensnscess 2, 12, 18

Hilton v. Guyot,

es PE ITI oo nace ccadenemesaticnsdsnsbsecsmenenes 6

In re Vitamin C Antitrust Litigation,

837 F.3d 176 (2d Cir. 2016)..................+. passim

Interamerican Refining Corp. v.

Texaco Maracaibo, Inc.,

307 F. Supp. 1291 (D. Del. 1970)................... 18

Klaxon Co. v. Stentor Elec. Mtg. Co.,

Be Me IR aicectecectarecasencaccousdevantieocies 7.0

Landis v. N. Am. Co.,

a Ie I inctcicniecdncsbcnbsbbbesceodinbacteting 16

iv

Mannington Mills, Inc. v. Congoleum Corp.,

595 F.2d 1287 (3d Cir. 1979).......... 2. 11, 13, 18

Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp.,

A I oii ie ridensisaeas 18

Maxwell Commce’n Corp. v. Societe Generale

(In re Maxwell Commce’n Corp.),

93 F.3d 1036 (2d Cir. 1996).....................2.0002 14

Morrison v. National Australia Bank Ltd,

RE RE en ee 4,13, 14

Muyica v. AirScan Inc.,

OR ee ee te es Gy occcvsccsccrecnsnesccees 10

O.N.E. Shipping Ltd. v.

Flota Mercante Grancolombiana, S.A.,

830 F.2d 449 (2d Cir. 1987)..................... 11, 20

Oetjen v. Cent. Leather Co.,

ee Se agi ciincrdccincsnnminncusbeinininddanighwonsd 6

Piper Aircraft Co. v. Reyno,

ey IE soiaceisccnpercesecsencsarstncesedons 9, 16

Quackenbush v. Allstate Ins. Co.,

ee ts I aac ancctocacceceurensntadbaabesnooies 16

Ricaud v. American Metal Co.,

Be Eee te I sidecdccercoseconcnitccovinaiesosen 19, 20

RJR Nabisco, Inc. v. European Community,

BE Be Ce Fe Gee si cceccccvecccsincscenes 4, 6, 7, 14

Royal & Sun All. Ins. Co. of Canada v.

Century Int'l Arms, Inc.,

466 F.3d 88 (2d Cir. 2006).......................... 9, 10

Societe Internationale pour Participation

Industrielles et Commerciales, S.A. v.

Rogers, 357 U.S. 197 (19658)....................0..200 17

Timberlane Lumber Co. v.

Bank of Am., N.T. & S.A.,

549 F.2d 597 (9th Cir. 1976)...................... 2,11

Trugman-Nash, Inc. v. N.Z. Dairy Bd.,

954 F. Supp. 733 (S.D.N.Y. 1997).................. 18

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004)...................... 10

WS. Kirkpatrick & Co. v.

Environmental Tectonics Corp., Int'l,

ge eee 17, 19, 20

STATUTES:

Mier IIE Tis \nicncaubnbiictcntnintgntatnamadianendstecenacgubegees 1, 2, 16

I i earl hacinitsecdiosinbaeinnnienneniennennys 13

Securities Exchange Act § 10(b),

a I pics Sncosissmepensccorensenecsennsess 13

Saal aA OT en 7

Be es Oe iis essrtececsscecssnessntnseccnessnsses 7

rac nrinientnicepecsigninaliiedsncbhipscmmesiuits 7

Se sais ln nia hovinhgnhiaiescontnatineonsinectnsions 7

ee Rs Se ticle iciccintinekcariendeincteadddipdtlihitinias 7

Pub. L. No. 94-583, 90 Stat. 2891 (1976) ................... 7

vi

RULES:

Federal Rule of Civil Procedure 44.1.................00..00... 8

OTHER AUTHORITIES:

A. Ahlstrém Osakeyhtié v. Comm'n

(“Wood Pulp’), 1988 E.C.R. 5193

(European Court of Justice)........................... 12

Department of Justice & Federal Trade

Commission, Antitrust

Guidelines for International

Enforcement and Cooperation

Be INT had cctccalindadadteckersagedendtanmssesentnt 18

Jurisdictional Immunities of the State

(Germ. v. It.), 2012 1.C.J. 97 (Feb.

North Sea Continental Shelf (Germ. v.

Den.; Germ. v. Neth.), 1969 1.C.J.

BI teats Lincciec tank sah dipsiniciadbacaivaidnssicedepuscoseneds 12

Restatement (Third) of Foreign

Relations Law of the United

States § 403 (Am. Law Inst.

REVERIE ESS SS A NR 12

Restatement (Fourth) of Foreign

Relations Law of the United

States: Jurisdiction (Am. Law

Inst., Tentative Draft No. 2,

MARNE RC EEE FPR Peo 10, 12, 16, 18, 19

Vii

Restatement (Fourth) of Foreign

Relations Law of the United

States: Jurisdiction (Am. Law

Inst., Tentative Draft No. 3,

Uniform Foreign-Country Money

Judgments Recognition Act (Nat’!

Conference of Comm’rs on Unif.

I es css d cach csawadurecaonsinnseite 7

William S. Dodge, /nternational Comity

in American Law, 115 Colum. L.

Bs See I iiscchotchcccatuancssonescursdenciestvcoved 6, 8

Vili

INTEREST OF AMICT

Amici curiae are professors of international

litigation with expertise in the various doctrines of

U.S. law based on international comity. They have a

strong interest in the proper application of these

doctrines by U.S. courts. A list of amici and their

qualifications is provided in the appendix. !

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioners alleged that respondents and their

co-conspirators established a cartel to fix the prices

of vitamin C exported to the United States in

violation of Section 1 of the Sherman Act. 15 U.S.C.

§ 1. Respondents did not deny the allegations but

rather claimed that their actions had been required

by Chinese law, and respondents moved to dismiss

the complaints under the act of state doctrine, the

doctrine of foreign sovereign compulsion, and

principles of international comity. /n re Vitamin C

Antitrust Litigation, 837 F.3d 175, 180 (2d Cir.

2016). The Ministry of Commerce of the People’s

Republic of China filed an amicus brief supporting

respondents, which represented that under Chinese

law all vitamin C legally exported during the

relevant time had to be sold at coordinated prices.

ld. at 182. The district court rejected each of

respondents’ three defenses, both upon a motion to

' All parties have consented to the filing of this brief.

Petitioners’ consent is on file with the Clerk. On February 15,

2018, Respondents filed a blanket consent letter with the

Clerk. No counsel for any party has authored this brief in whole

or in part, and no person other than amici or their counsel has

made any monetary contribution intended to fund the

preparation or submission of this brief.

dismiss and, following discovery, upon a motion for

summary judgment. /d After a jury found

respondents liable for violating the Sherman Act, the

district court awarded petitioners approximately

$147 million in damages and permanently enjoined

respondents from further violations of the Sherman

Act. Jd.

On appeal, the Second Circuit declined to

address the act of state doctrine or the doctrine of

foreign sovereign compulsion. /d. at 194. Instead, the

court of appeals held that “principles of international

comity required the district court to abstain from

exercising jurisdiction in this case.” /d. at 179. The

court of appeals applied a “multi-factor balancing

test,” id. at 184-85, developed by the Ninth and

Third Circuits in Timberlane Lumber Co. v. Bank of

Am., N.T. & S.A., 549 F.2d 597, 614-15 (9th Cir.

1976), and Mannington Mills, Inc. v. Congoleum

Corp., 595 F.2d 1287, 1297-98 (3d Cir. 1979). The

Second Circuit read this Court’s decision in Hartford

Fire Ins. Co. v. California, 509 U.S. 764, 798 (1993),

as establishing a prerequisite to any such analysis:

that complying with both U.S. and foreign law would

be impossible. Vitamin C, 837 F.3d at 185-86. To

answer that preliminary question, the court of

appeals had to determine the content of Chinese law

and thus “the amount of deference that we extend to

the Chinese Government's explanation of its own

laws.” /d. at 186. The court held that it was “bound

to defer” to the Chinese Government's

representations. /d at 189. It found that

respondents could not comply with both U.S. and

Chinese law, id. at 192, and after weighing the other

factors in its multi-factor test, the court of appeals

concluded that “the district court abused its

discretion by failing to abstain on international

comity grounds from asserting jurisdiction.” /d. at

194.

Petitioners filed a petition for certiorari

presenting three questions: (1) whether the court of

appeals erred in reviewing the motion to dismiss

rather than the final judgment; (2) whether the court

of appeals erred in _ treating the Chinese

Government's representation as conclusive; and (3)

whether the court of appeals erred in holding that it

could abstain from exercising jurisdiction on a case-

by-case basis. In response to this Court’s call for the

views of the United States, the Solicitor General

recommended that the petition be granted limited to

the second question presented, noting possible

procedural problems with the first and _ third

questions. This Court granted certiorari limited to

the second question in the petition.

In answering that question, the Court should

take care not to endorse the Second Circuit's

doctrine of abstention based on international comity.

First, as this Court acknowledged when it limited its

grant to the second question, it is not necessary to

address abstention to answer the question

presented. The principle of international comity is

the foundation for many doctrines of U.S. law, each

of which has specific requirements tailored to a

particular context. How much weight a U.S. court

should give as a matter of international comity to

the representation of a foreign government about the

content of its own law is a separate question from

whether a U.S. court should be allowed to dismiss a

case over which it has subject matter jurisdiction on

the basis of international comity.

Second, the Second Circuit's doctrine of

abstention based on international comity conflicts

with the decisions of this Court and threatens to

supplant more narrowly tailored doctrines of

international comity. Viewed as a doctrine of

prescriptive comity, the Second Circuit’s doctrine

conflicts with this Court’s decisions finding that a

case-by-case balancing approach is “too complex to

prove workable.” -. Hoffmann-La Roche Ltd. v.

Empagran S.A., 542 U.S. 155, 168 (2004); see also

RJR Nabisco, Inc. v. European Community, 136 S.

Ct. 2090, 2108 (2016) (rejecting “case-by-case

inquiry”); Morrison v. National Australia Bank Ltd.,

561 U.S. 247, 259 (2010) (criticizing the

“methodology of balancing interests”). Viewed as a

doctrine of adjudicative comity, the Second Circuit’s

doctrine runs against the “virtually unflagging

obligation of the federal courts to exercise the

jurisdiction given them.” Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800,

817 (1976). The Second Circuit’s doctrine also

threatens to supplant more narrowly tailored

doctrines of international comity, such as the

doctrine of foreign sovereign compulsion and the act

of state doctrine that were raised below in this case.

This Court has carefully placed limits on each of

those doctrines, limits that would effectively become

irrelevant if this Court were to endorse the broad

doctrine of abstention that the Second Circuit

applied.

Having granted certiorari limited to the

second question presented, this Court should answer

that question only and should not prejudge any of

the other comity questions raised by this case.

ARGUMENT

I. IT IS NOT NECESSARY TO ADDRESS

ABSTENTION BASED ON

INTERNATIONAL COMITY IN ORDER TO

ANSWER THE QUESTION PRESENTED

As argued to the courts below, this case

involves a number of doctrines based on

international comity. Those doctrines include the

three defenses raised by respondents and addressed

by the district court: the act of state doctrine, the

doctrine of foreign sovereign compulsion, and

abstention based on international comity. They also

include the recognition of foreign law, and as part of

that analysis, the question presented in this case of

what deference to give a foreign government's

representations in determining the content of foreign

law. The Second Circuit answered the question

presented in the context of applying a doctrine of

abstention based on international comity. But those

two comity questions are distinct, and it is not

necessary for this Court to address abstention based

on international comity in order to answer the

question presented.

“International comity reflects deference to

foreign states that international law does not

mandate.” Restatement (Fourth) of Foreign

Relations Law of the United States: Jurisdiction

§ 101 cmt. a (Am. Law Inst., Tentative Draft No. 3,

2017).2 American law contains many doctrines based

2 All tentative drafts of the Fourth Restatement cited in

this brief have been approved by the membership of the

American Law Institute (ALI") and represent its official

position. The numbering of some of the cited sections will

change in the final version of the Fourth Restatement,

on international comity. See William S. Dodge,

International Comity in American Law, 115 Colum.

L. Rev. 2071, 2099-2019 (2015) (reviewing doctrines).

Prescriptive comity is the basis for recognizing

foreign law, both under conflict-of-laws rules, see,

e.g., Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519,

589 (1839) (“[T]he !aws of one [country], will, by the

comity of nations, be recognized and executed in

another ... .”), and under the act of state doctrine,

see, e.g., Oetjen v. Cent. Leather Co., 246 U.S. 297,

303-04 (1918) (noting that the act of state doctrine

“rests at last upon the highest considerations of

international comity and expediency”). This Court

has also held that “principles of prescriptive comity”

may limit the reach of U.S. law. Empagran, 542 U.S.

at 169; see also RJR, 136 S. Ct. at 2100 (noting that

presumption against extraterritoriality “serves to

avoid the international discord that can result when

U.S. law is applied to conduct in foreign countries’).

Adjudicative comity is the basis for

recognizing foreign court judgments in the United

States. See, e.g., Hilton v. Guyot, 159 U.S. 113, 163

(1895) (noting that recognition of foreign judgments

depends on “the comity of nations”). Doctrines of

adjudicative comity like forum non conveniens may

also restrain the jurisdiction of U.S. courts. See 2/2,

136 S. Ct. at 2115 (Ginsburg, J., concurring and

dissenting) (noting that “comity concerns” can be

met through “the doctrine of forum non conveniens

[that] enables U.S. courts to refuse jurisdiction”);

publication of which is expected in 2018. Although some of the

amici worked on the Fourth Restatement, they file this bref in

their individual capacities. This brief should not be taken to

represent the views of the ALI.

Am. Dredging Co. v. Miller, 510 U.S. 443, 467 (1994)

(Kennedy, J., dissenting) (noting that “the “rum non

conveniens defense promotes comity”).

Sovereign-party comity is the basis for

recognizing foreign governments as plaintiffs in U.S.

courts, see, e.g. Banco Nacional de Cuba v.

Sabbatino, 376 U.S. 398, 408-09 (1964) (“Under

principles of comity . .. , sovereign states are allowed

to sue in the courts of the United States.”), and for

restraining the jurisdiction of U.S. courts over

foreign governments as defendants under the

doctrine of foreign sovereign immunity, see, e.z.,

Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2004)

(“Foreign sovereign immunity” is meant “to give

foreign states and their instrumentalities some

protection from the inconvenience of suit as a

gesture of comity between the United States and

other sovereigns.”).

Some doctrines of international comity are

codified in federal or state statutes. See, e.g., Foreign

Sovereign Immunities Act, Pub. L. No. 94-583, 90

Stat. 2891 (1976) (codified at 28 U.S.C. §§ 1330,

1332(a)(2)-(4), 1391(f), 1441(d), 1602-1611); Uniform

Foreign-Country Money Judgments Recognition Act

(Nat'l Conference of Comm’rs on Unif. State Laws

2005) (adopted in 21 states and the District of

Columbia). Some are principles of statutory

interpretation. See, e.g., RJR, 136 S. Ct. at 2100

(noting presumption against extraterritoriality as “a

canon of statutory construction”). Some are doctrines

of federal common law, see, e.g., Sabbatino, 376 U.S.

at 427 (“We conclude that the scope of the act of

state doctrine must be determined according to

federal law.”), and some are doctrines of state

common law, see Alaxon Co. v. Stentor Elec. Mfg.

Co., 313 U.S. 487, 496 (1941) (holding that federal

7

courts must apply state conflict-of-laws rules); see

also Day & Zimmerman, Inc. v. Challoner, 423 U.S.

3, 4 (1973) (holding that A/axon applies in

international cases). But each doctrine of

international comity has its own requirements.

There is no overarching doctrine of international

comity that applies in all cases.

In federal courts, the determination of foreign

law is governed by Federal Rule of Civil Procedure

44.1. How much weight to give a_ foreign

government's representations about the content of

its own law under Rule 44.1 is a question of

international comity. See Restatement (Fourth) of

Foreign Relations Law of the United States:

Jurisdiction § 101 cmt. a (Am. Law Inst., Tentative

Draft No. 3, 2017) (“International comity reflects

deference to foreign states that international law

does not mandate.”); see also Dodge, /nternational

Comity, 115 Colum. L. Rev. at 2078 (“International

comity is deference to foreign government actors that

is not required by international law but is

incorporated in domestic law.”). Amici take no

position on the question presented, but they note

that it is a separate comity question from the

question whether a federal court may abstain from

exercising jurisdiction based on international comity.

Having granted certiorari limited to the second

question presented, this Court should answer that

question only and should not prejudge any of the

other comity questions raised by this case.

Il. THE SECOND CIRCUIT’S DOCTRINE OF

ABSTENTION BASED ON

INTERN ATIONAL COMITY CONFLICTS

WITH " HE DECISIONS OF THIS COURT

AND THREATENS TO SUPPLANT MORE

NARROWLY TAILORED DOCTRINES OF

INTERNATIONAL COMITY

This Court should be particularly careful not

to endorse the Second Circuit's doctrine of abstention

based on international comity because that doctrine

conflicts with the decisions of this Court and

threatens to supplant more narrowly tailored

doctrines of international comity.

A. THE SECOND CIRCUIT'S

ABSTENTION DOCTRINE

CONFLICTS WITH THE DECISIONS

OF THIS COURT

It is not entirely clear whether the court of

appeals decided to abstain as a matter of

prescriptive comity or adjudicative comity. On the

one hand, the court of appeals reviewed the district

courts denial of the motion to dismiss on

international comity grounds for abuse of discretion,

Vitamin C, 837 F.3d at 183, which is typically the

standard of review for doctrines of adjudicative

comity. See, e.g., Piper Aircraft Co. v. Reyno, 454

U.S. 246, 257 (1981) (adopting abuse of discretion

standard for forum non conveniens); Royal & Sun

All. Ins. Co. of Canada v. Century Int’] Arms, Inc.,

466 F.3d 88, 92 (2d Cir. 2006) (adopting abuse of

discretion standard for international comity

abstention). On the other hand, the court of appeals

did not apply the requirements for its own

adjudicative comity doctrine of “international comity

abstention,” Royal & Sun All. Ins., 466 F.3d at 92,

which requires both the existence of a pending and

parallel foreign proceeding and _ exceptional

circumstances justifying dismissal, id. at 93.5 But no

matter how the abstention doctrine applied below is

characterized, it conflicts with the decisions of this

Court.

Viewed as a doctri..e of prescriptive comity,

the Second Circuit’s abstention doctrine conflicts

with this Court’s decisions, which have rejected

’ The adjudicative comity doctrine called “international

comity abstention” is an extension of Colorado River abstention

to foreign proceedings. See Royal & Sun All Ins., 466 F.3d at

93 (relying on Colorado River, 424 U.S. 800). Most of the other

circuits to have adopted this doctrine also require a showing of

pending and parallel foreign proceedings and exceptional

circumstances justifying dismissal. See Answers in Genesis of

Kentucky, Inc. v. Creation Ministries Int Ltd., 556 F.3d 459,

466-69 (6th Cir. 2009); Gross v. German Found. Indus.

Initiative, 456 F.3d 363, 392-94 (3d Cir. 2006); AAR Int'l Inc. v.

Nimelias Enters. S.A., 250 F.3d 510, 517-23 (7th Cir. 2001); A/-

Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. 2000). Only

the Ninth and Eleventh Circuits have authorized such

abstention in the absence of a pending and parallel foreign

proceeding and exceptional circumstances. See Mujica v.

AirScan Inc., 771 F.3d 580, 596-615 (9th Cir. 2014); Ungaro-

Benages v. Dresdner Bank AG, 379 F.3d 1227, 1237-40 (11th

Cir. 2004); see also Restatement (Fourth) of Foreign Relations

Law of the United States: Jurisdiction § 304 reporters’ note 9

(Am. Law Inst., Tentative Draft No. 2, 2016) (discussing

international comity abstention). This case presents no

occasion for the Court to address whether Colorado River

abstention should apply to foreign proceedings.

10

multi-factor balancing as an approach _ to

determining whether federal statutes apply

extraterritorially. The Second Circuit relied on the

“multi-factor balancing test,” Vitamin C, 837 F.3d at

184, developed by the Ninth Circuit in 7imber/ane,

549 F.2d 597, and by the Third Circuit in

Mannington Mills, 595 F.2d 1287. The court distilled

those cases into a ten-factor test, which it referred to

as the “comity balancing test.” /d at 184-85.

Applying those factors to the facts of this case, see

id. at 192-94, the Second Circuit concluded “that

China’s ‘interests outweigh whatever antitrust

enforcement interests the United States may have in

this case as a matter of law.” /d. at 194 (quoting

O.N.E. Shipping Ltd. vv. Flota Mercante

Grancolombiana, S.A., 830 F.2d 449, 450 (2d Cir.

1987)).

‘ The ten factors are: “(1) Degree of conflict with foreign

law or policy; (2) Nationality of the parties, locations or

principal places of business of corporations; (3) Relative

importance of the alleged violation of conduct here as compared

with conduct abroad; (4) The extent to which enforcement by

either state can be expected to achieve compliance, the

availability of a remedy abroad and the pendency of litigation

there; (5) Existence of intent to harm or affect American

commerce and its foreseeability; (6) Possible effect upon foreign

relations if the court exercises jurisdiction and grants relief, (7)

If relief is granted, whether a party will be placed in the

position of being forced to perform an act illegal in either

country or be under conflicting requirements by both countries;

(8) Whether the court can make its order effective; (9) Whether

an order for relief would be acceptable in this country if made

by the foreign nation under similar circumstances; and (10)

Whether a treaty with the affected nations has addressed the

issue.” Vitamin C, 837 F.3d at 184-85 (citing Mannington Mills,

595 F.2d at 1297-98; Timberlane, 549 F.2d at 614).

1]

In Hartford Fire, the petitioners raised a

similar argument, but this Court found it

unnecessary to decide whether a federal court may

decline to exercise jurisdiction “under the principle

of international comity.” 509 U.S. at 797. Because

the petitioners in Hartford Fire did not claim that

compliance with both U.S. and foreign law was

“impossible,” this Court reasoned that there was “no

need in this litigation to address other

considerations that might inform a decision to

refrain from the exercise of jurisdiction on grounds of

international comity.” /d. at 799.5 The Second

Circuit read Hartford Fire “narrowly,” “as suggesting

that the remaining factors in the comity balancing

5 In Hartford Fire, Justice Scalia argued in dissent that

customary international law requires a balancing of factors in

each case to determine if the exercise of jurisdiction is

reasonable, relying on Section 403 of the Restatement (Third)

of Foreign Relations Law of the United States (Am. Law Inst.

1987). See Hartford Fire, 509 U.S. at 818-19 (Scalia, J.,

dissenting). However, customary international law imposes no

such obligation. The International Court of Justice has held

that “the existence of a rule of customary international law

requires that there be ‘a settled practice’ together with opinio

juris.” Jurisdictional Immunities of the State (Germ. v. /t.),

2012 L.C.J. 97, 122 (Feb. 3) (quoting North Sea Continental

Shelf (Germ. v. Den.; Germ. v. Neth), 1969 1.C.J. 3, 44 (Feb.

20)). Other jurisdictions have not followed a practice of case-by-

case balancing. See, e.g, A. Ahistrém Osakeyhtié v. Comm'n

(‘ Wood Pulp’), 1988 E.C.R. 5193, {4 19-23 (European Court of

Justice). In the absence of settled state practice, no customary-

international-law obligation can exist. For this reason, the

Restatement (Fourth) of Foreign Relations Law concludes that

“state practice does not support a requirement of case-by-case

balancing to establish reasonableness as a matter of

international law.” Restatement (Fourth) of Foreign Relations

Law of the United States: Jurisdiction § 211 reporters’ note 3

(Am. Law Inst., Tentative Draft No. 2, 2016).

12

test are still relevant to an abstention analysis.”

Vitamin C, 837 F.3d at 185. In so doing, the court of

appeals ignored this Court’s subsequent decisions,

which have repeatedly disapproved a discretionary,

case-by-case approach.

In Empagran, an antitrust case governed by

the Foreign Trade Antitrust Improvements Act

(FTAIA), 15 U.S.C. § 6a, respondents argued that

courts could take “account of comity considerations

case by case, abstaining where comity considerations

so dictate.” Empagran, 542 U.S. at 168. This Court

rejected that argument, concluding that such a case-

by-case approach was “too complex to prove

workable.” /d. As an example of this unworkable,

balancing approach, the Court cited Mannington

Mills, see id., one of the two cases from which the

Second Circuit drew its multi-factor test. See

Vitamin C, 837 F.3d at 184. The FTAIA does not

apply in the present case because the antitrust

claims involve import commerce. See 15 U.S.C. § 6a

(limiting FTAIA to cases involving trade or

commerce “other than import trade or import

commerce”). But there is no reason to believe that a

case-by-case comity approach is any more workable

in antitrust cases not mediated by the FTAIA.

This Court has rejected a _ case-by-case

balancing approach to determine the geographic

scope of other statutes as well. Considering the scope

of Securities Exchange Act § 10(b) in Morrison, the

Court criticized the lower courts’ “methodology of

balancing interests,” 561 U.S. at 259, which had led

to “the unpredictable and inconsistent application of

§ 10(b) to transnational cases.” /d. at 260. Instead,

this Court adopted a “clear test” that simply asks

“whether the purchase or sale is made in the United

States, or involves a security listed on a domestic

13

exchange.” /d. at 269-70. In AJR, this Court

considered the geographic scope of RICO, holding

that two of its substantive provisions apply

extraterritorially to the same extent as RICO’s

underlying predicate acts, 136 S. Ct. at 2101-03, and

that RICO’s private right of action requires proof of

domestic injury to business or property. /d. at 2111.

The European Community asked this Court to

consider the absence of international friction in cases

where foreign governments themselves’ were

plaintiffs, but the Court refused to “permit

extraterritorial suits based on a case-by-case inquiry

that turns on or looks to the consent of the affected

sovereign.” /d. at 2108.

There may be statutes for which additional

comity limitations are appropriate even if the

presumption against extraterritoriality has been

overcome. See Restatement (Fourth) of Foreign

Relations Law of the United States: Jurisdiction

§ 204 cmt. c (Am. Law Inst., Tentative Draft No. 3,

2017) (noting that the presumption § against

extraterritoriality “does not preclude U.S. courts

from interpreting a statute to include other comity

limitations if doing so is consistent with the text,

history, and purpose of the provision”). For example,

some courts of appeals have applied a choice-of-law

analysis to determine the applicability of the

avoidance provisions of the Bankruptcy Code. See

French v. Liebmann ([n re French), 440 F.3d 145,

152-54 (4th Cir. 2006); Maxwell Commc’n Corp. v.

Societe Generale (In re Maxwell Commc’n Corp.), 93

F.3d 1036, 1049 (2d Cir. 1996); see also Restatement

(Fourth) of Foreign Relations Law of the United

States: Jurisdiction § 204 reporters’ note 4 (Am. Law

Inst., Tentative Draft No. 3, 2017) (discussing

bankruptcy cases).

14

But there is no overarching doctrine of

international comity that gives federal courts case-

specific authority not to apply federal law in

international cases. See Restatement (Fourth) of

Foreign Relations Law of the United States:

Jurisdiction § 204 cmt. a (Am. Law Inst., Tentative

Draft No. 3, 2017) (“Reasonableness is a principle of

statutory interpretation and not a discretionary

judicial authority to decline to apply federal law.”).

What comity limitations are appropriate will vary

from statute to statute. See id. cmt. d (“U.S. courts

have construed statutory provisions to include a

variety of other comity limitations depending on the

text, history, and purpose of the particular

provision.”). In the context of antitrust law, in

particular, this Court has rejected the Second

Circuit’s approach as “too complex to prove

workable.” Empagran, 542 U.S. at 168.

2. The Second Circuit's

Abstention Doctrine

Conflicts With This

Court’s Adjudicative

Comity Decisi

Viewed as a doctrine of adjudicative comity,

the Second Circuit’s doctrine runs against the

“virtually unflagging obligation of the federal courts

to exercise the jurisdiction given them.” Colorado

River, 424 U.S. at 817; see also Cohens v. Virginia,

19 U.S. (6 Wheat.) 264, 404 (1821) (Marshall, C.J.)

(observing that federal courts “have no more right to

decline the exercise of jurisdiction which is given,

than to usurp that which is not given”). This

obligation to exercise jurisdiction is subject to certain

exceptions. Federal courts may decline to hear a case

“where the relief being sought is equitable in nature

or otherwise discretionary,” such as a declaratory

15

judgment. Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 721 (1996). In actions at law, federal courts

may stay their proceedings in deference to other

federal courts, see Landis v. N. Am. Co., 299 U.S.

248, 254 (1936), and may decline jurisdiction in favor

of state courts under narrowly circumscribed

abstention doctrines and in other “exceptional”

circumstances, Colorado River, 424 U.S. at 818.

Federal courts may also decline jurisdiction in favor

of foreign courts under the doctrine of forum non

conveniens, provided that “there exists an

alternative forum.” Piper, 454 U.S. at 254 n.22; see

also Restatement (Fourth) of Foreign Relations Law

of the United States: Jurisdiction § 304 cmt. i (Am.

Law Inst., Tentative Draft No. 2, 2016) (noting that

“forum non conveniens is the only doctrine under

which the Supreme Court has approved dismissal in

favor of foreign courts”).

None of these exceptions to the federal courts’

general obligation to exercise their jurisdiction

authorizes the abstention doctrine based on

international comity that the Second Circuit applied

in this case. Petitioners’ Sherman Act claim was an

action for damages, although the district court also

granted injunctive relief. The Second Circuit did not

abstain in favor of another federal or state court.

Respondents did not seek dismissal under the

doctrine of forum non conveniens. Indeed, the

Second Circuit conceded that petitioners “may be

unable to obtain a remedy for Sherman Act

violations in another forum.” Vitamin C, 837 F.3d at

193. The court of appeals’ suggestion that

“complaints as to China’s export policies can

adequately be addressed through diplomatic

channels and the World Trade Organization's

processes,” id., ignores petitioners’ rights to seek

16

compensation for antitrust injuries under federal

law and the federal court’s obligations to decide

those claims. As Justice Scalia noted, writing for a

unanimous Court in WS. Kirkpatrick & Co. v.

Environmental Tectonics Corp., Int'l, 493 U.S. 400

(1990), “[t}he short of the matter is this: Courts in

the United States have the power, and ordinarily the

obligation, to decide cases and controversies properly

presented to them.” /d@. at 409.

B. THE SECOND CIRCUIT'S

The Second Circuit's doctrine threatens to

supplant more narrowly tailored doctrines of

international comity, such as the doctrine of foreign

sovereign compulsion and the act of state doctrine

that were raised below in this case. This Court has

carefully placed limits on each of those doctrines,

limits that would effectively become irrelevant if this

Court were to endorse the doctrine of abstention that

the Second Circuit applied.

This Court has recognized the doctrine of

foreign sovereign compulsion in the context of U.S.

court orders for the production of evidence. See

Societe Internationale pour Participation

Industrielles et Commerciales, S.A. v. Rogers, 357

U.S. 197 (1958). Rogers held that dismissal of a

complaint was too harsh a_ sanction for

noncompliance with a pretrial production order

“when it has been established that failure to comply

has been due to inability, and not to willfulness, bad

faith, or any fault of petitioner.” /d at 212. This

Court has not found it necessary to decide whether

17

foreign sovereign compulsion is a valid defense to

antitrust claims, see Hartford Fire, 509 U.S. at 799

(noting that compliance with both U.S. and foreign

law was not “impossible”); Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 598

(1986) (‘Our decision makes it unnecessary to reach

the sovereign compulsion issue.”); Continental Ore

Co. v. Union Carbide & Carbon Corp., 370 U.S. 690,

706-07 (1962) (noting that there was “nothing to

indicate that [Canadian] law in any way compelled

discriminatory purchasing”), but lower courts have

recognized the doctrine as a defense in antitrust

cases. See, e.g., Mannington Mills, 595 F.2d at 1293-

94; Trugman-Nash, Inc. v. N.Z. Dairy Bd., 954 F.

Supp. 733, 736 (S.D.N.Y. 1997); Jnteramerican

Refining Corp. v. Texaco Maracaibo, Inc., 307 F.

Supp. 1291, 1304 (D. Del. 1970); see also

Department of Justice & Federal Trade Commission,

Antitrust Guidelines for International Enforcement

and Cooperation § 4.2.2 (2017) (recognizing foreign

sovereign compulsion defense to antitrust claims).

Where courts have recognized the doctrine of foreign

sovereign compulsion, they have generally imposed

two requirements: (1) that “the person in question

appears likely to suffer severe sanctions for failing to

comply with foreign law’; and (2) that “the person in

question has acted in good faith to avoid the

conflict.” Restatement (Fourth) of Foreign Relations

Law of the United States: Jurisdiction § 222 (Am.

Law Inst., Tentative Draft No. 2, 2016).

The Second Circuit's discretionary abstention

doctrine would supplant the more narrowly tailored

doctrine of foreign sovereign compulsion. Before

abstaining on grounds of international comity, the

court of appeals did not require a showing that

respondents would be likely to suffer severe

18

sanctions or even that respondents’ conduct had

been compelled. Instead, the court held that “[e]ven

if Defendants’ specific conduct was not compelled by

[Chinese law], that type of compulsion is not

required” under the comity balancing test. Vitamin

C, 837 F.3d at 192. Neither did the court of appeals

require a showing that respondents had acted in

good faith to avoid the conflict. Instead, the court

held that “[w]hether Defendants had a hand in the

Chinese government's decision to mandate some

level of price-fixing is irrelevant” under the test it

applied. /d. at 191. By allowing dismissal of an

antitrust claim as a matter of international comity

without a showing of either severe sanctions or good

faith, the Second Circuit's abstention doctrine

effectively makes the more limited doctrine of

foreign sovereign compulsion obsolete.

This Court has also emphasized the limits of

the act of state doctrine. That doctrine provides that,

“fiJn the absence of a treaty or other unambiguous

agreement regarding controlling legal principles,

courts in the United States will assume the validity

of the official act of a foreign sovereign performed

within its own territory.” Restatement (Fourth) of

Foreign Relations Law of the United States:

Jurisdiction § 221(1) (Am. Law Inst., Tentative Draft

No. 2, 2016). This Court unanimously held in

Kirkpatrick that the act of state doctrine applies

only when a suit “requires the Court to declare

invalid, and thus ineffective as ‘a rule of decision for

the courts of this country,’ the official act of a foreign

sovereign.” 493 U.S. at 405 (quoting Aicaud v.

American Metal Co., 246 U.S. 304, 310 (1918)).

Kirkpatrick emphasized that “[t]he act of state

doctrine is not some vague doctrine of abstention.”

Id. at 406.

19

The Second Circuit's comity balancing test is

precisely the sort of “vague doctrine of abstention”

that this Court rejected in Airkpatrick. Id. at 406.

Although the court of appeals did not reach

respondents’ act of state defense, Vitamin C, 837

F.3d at 194, the court did rely on one of its own pre-

Kirkpatrick act of state decisions to support the

comity balancing analysis. In considering the

relevance of respondents’ conduct in establishing the

Chinese export regime, the Second Circuit reasoned

that “inquiring into the motives behind the Chinese

Government's decision to regulate the vitamin C

market in the way it did is barred by the act of state

doctrine.” /d. at 191 (citing ONE. Shipping, 830

F.2d at 452). Under Airkpatrick, however, the fact

that a claim requires “imputing to foreign officials”

even “an unlawful motivation,” 493 U.S. at 401, is

not sufficient to invoke the act of state doctrine,

which applies only when a suit “requires the Court

to declare invalid, and thus ineffective as ‘a rule of

decision for the courts of this country,’ the official act

of a foreign sovereign.” /d. at 405 (quoting Aicaud,

246 U.S. at 310). Under the Second Circuit’s doctrine

of abstention, that limitation of the act of state

doctrine becomes irrelevant. Although the act of

state doctrine is limited to claims that require a U.S.

court to declare invalid the official act of a foreign

sovereign, the Second Circuit's discretionary

abstention doctrine is not.

At the end of its opinion, the Second Circuit

noted: “Because we reverse and remand for dismissal

on the basis of international comity, we do not

address the act of state, foreign sovereign

compulsion, or political question defenses.” Vitamin

C, 837 F.3d at 194. If this Court were to endorse the

Second Circuit's abstention doctrine, this is likely to

20

become an _ increasingly frequent disposition.

Discretionary abstention as a matter of international

comity would come to supplant the more narrowly

tailored international-comity doctrines that this

Court has developed.

CONCLUSION

How much weight to give the representations

of foreign governments about the content of their

own laws is a question of international comity, but it

is a question that is separable from whether a

federal court may abstain from _ exercising

jurisdiction on grounds of international comity. In

answering the question presented, this Court should

not endorse the abstention doctrine applied by the

Second Circuit, which conflicts with the decisions of

this Court and threatens to supplant more narrowly

tailored doctrines of international comity.

Respectfully submitted,

JONATHAN 8S. MASSEY

Counsel of Record

MASSEY & GAIL, LLP

1325 G St. N.W., Suite 500

Washington, D.C. 20005

Tel: (202) 652-4511

jmassey@masseygail.com

Dated: March 2, 2018

21

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22

APPENDIX

Ronald A. Brand is Charcecllor Mark A.

Nordenberg University Professor and John E.

Murray Faculty Scholar at the University of

Pittsburg School of Law. He is the author of The

Continuing Evolution of U.S. Judgments Recognition

Law, 55 Colum. J. Transnat’ L. 276 (2017), and

Transaction Planning Using Rules of Jurisdiction

and the Recognition and Enforcement of Judgments,

Hague Academy Collected Courses (Hague Academy

of International Law 2014). From 1993 to 2005, he

was a member of the U.S. Delegation to the Hague

Conference on Private International Law.

Anthony J. Colangelo is Gerald J. Ford

Research Fellow and Professor of Law at Southern

Methodist University, Dedman School of Law. His

publications include Absolute Conflict of Laws, 91

Indiana L.J. 718 (2016), and What /s Extraterritoria/

Jurisdiction?, 99 Cornell L. Rev. 1303 (2014).

William S. Dodge is Martin Luther King, Jr.

Professor of Law at the University of California,

Davis, School of Law. He is a co-reporter of the

American Law Institute’s Restatement (Fourth) of

the Foreign Relations Law of the United States and

the author of /nternational Comity in American

Law, 115 Colum. L. Rev. 2071 (2015). From 2011 to

2012, he served as Counselor on International Law

to the Legal Adviser at the U.S. Department of

State.

Maggie Gardner is an Assistant Professor at

Cornell Law School. Her publications include

Retiring Forum Non Conveniens, 92 N.Y.U. L. Rev.

390 (2017), and Parochial Procedure, 69 Stan. L.

Rev. 941 (2017).

23

Stephen C. McCaffrey is Distinguished

Professor of Law at the University of the Pacific,

McGeorge School of Law. He is the author of

Transnational Litigation in Comparative Perspective

(Oxford Univ. Press 2010). He served as Counselor

on International Law to the Legal Adviser at the

U.S. Department of State from 1984 to 1985 and as a

member of the International Law Commission from

1982 to 1991.

John T. Parry is Associate Dean of Faculty

and Edward Brunet Professor of Law at Lewis &

Clark School of Law. His publications include Cases

and Problems in Civil Rights Litigation: State,

Federal, and International Perspectives (Semaphore

Press 2016) and Rethinking Personal Jurisdiction

After Bauman and Walden, 19 Lewis & Clark L.

Rev. 607 (2015).

Michael D. Ramsey is Hugh and Hazel

Darling Foundation .’rofessor of Law at _ the

University of San Diego School of Law and an

adviser to the American Law Institute’s Restatement

(Fourth) of the Foreign Relations Law of the United

States. His publications include Transnational Law

and Practice (Wolters Kluwer 2015), The

Constitution’s Text in Foreign Affairs (Harvard

Univ. Press 2007), and Escaping “International

Comity”, 83 lowa L. Rev. 893 (1998).

Aaron D. Simowitz is an Assistant Professor

at Willamette University College of Law and an

Affiliated Scholar at the Classical Liberal Institute

at New York University. His publications include

Recognition and Enforcement of Foreign Judgments

and Awards: What Hath Daimler Wrought? 91

N.Y.U. L. Rev. 344 (2016), and Transnational

24

Enforcement Discovery, 83 Fordham L. Rev. 3293

(2015).

Adam N. Steinman is University Research

Professor of Law at the University of Alabama

School of Law. He is a co-author of Wright, Miller, et

al., Federal Practice and Procedure (Thomson

Reuters 2018) and the author of The Pleading

Problem, 62 Stan. L. Rev. 1293 (2010).

Edward T. Swaine is Professor of Law at the

George Washington University Law School. He is a

co-reporter of the American Law Institute’s

Restatement (Fourth) of the Foreign Relations Law

of the United States and the author of The Loca/

Law of Global Antitrust, 43 Wm. & Mary L. Rev. 627

(2001). From 2005 to 2006, he served as Counselor

on International Law to the Legal Adviser at the

U.S. Department of State.

25