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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0743%3A23. Public record. Not legal advice.