Opposition Brief — Goss International International Corp. Corp. v. Tokyo Kikai Seisakussho (No. 07-618)

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4

No. 07-618

JAN 9 - 2008

OFFICE OF as

SUPREME COURT

Supreme Court of the United States

GOSS INTERNATIONAL CORP.,

Petitioner,

v.

TOKYO KIKAI SEISAKUSHO, LTD. AND TKS (USA), INC.

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

BRIEF IN OPPOSITION

HOKEN S. SEKI CARTER G. PHILLIPS*

LAW OFFICES OF HOKEN LAWRENCE R. WALDERS

S. SEKI NEIL R. ELLIS

225 Deerpath Road RICHARD D. KLINGLER

- Suite 224 BRIAN E. NELSON

Lake Forest, IL 60045 SIDLEY AUSTIN LLP

(847) 234-5252 1501 K Street, N.W.

Washington, D.C. 20005

PETER J. TOREN (202) 736-8000

KASOWITZ, BENSON,

TORRES & FRIEDMAN LLP

1633 Broadway

New York, NY 10019

(212) 506-1700 ,

Counsel for Tokyo Kikai Seisakusho, Ltd. and TKS

(USA), Inc.

January 9, 2008 * Counsel of Record

ATA ILE NR TRAIN I EAS RON CACTI T NE ENR BO LOE Rt

Wicson-EPes PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

1. Whether a U.S. court may enjoin a foreign action

after satisfaction of the judgment entered by the U.S.

court when the foreign action does not involve a

relitigation of the issues or causes of action in the

domestic lawsuit and has been brought under a law

enacted by a foreign sovereign to vindicate its rights

established by the World Trade Organization.

2. Whether the Eighth Circuit’s treatment of

international comity as applied to an antisuit

injunction merits review when, as an independent

basis for its decision, the court found that the .

prerequisites for a foreign antisuit injunction were

plainly not satisfied.

(i)

v4

ll

STATEMENT PURSUANT TO RULE 29.6

The petition properly identifies the parties to this

proceeding. Pursuant to Rule 29.6 of the Rules of this

Court:

Respondent Tokyo Kikai Seisakusho, Ltd. does not

have any parent corporation, and no publicly held

corporation owns 10 percent or more of Tokyo Kikai

' Seisakusho, Ltd.’s stock. -

Respondent TKS.(U.S.A.), Inc. is 100% owned by °

Tokyo Kikai Seisakusho, Ltd. and is not a publicly

held corporation or other publicly held entity.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............ccesseeeeeeeeeees i

STATEMENT PURSUANT TO RULE 29.6........ i

TAs OF AUTOR TLS 60s .ceccccescsoscovecseesesecsese iv

II ti Nieichcrithtncciwinanieveinebacuscindunesévee

COUNTER-STATEMENT OF THE FACTS ....... 3

REASONS FOR DENYING THE PETITION ..... 8

I. NO CONFLICT EXISTS BETWEEN THE

DECISIONS OF THE EIGHTH CIRCUIT

AND THE SECOND CIRCUIT.................006 9

Il. THIS CASE PROVIDES NO OPPORTUN-

ITY FOR THIS COURT TO ADDRESS

PERCEIVED DIVERGENCES AMONG

THE CIRCUITS REGARDING THE

TREATMENT OF INTERNATIONAL

CFI TE Which ahcissaaiocegiieaseneintaleialeatebiiabies se 13

A. All Courts Of Appeals Concur That Only

Foreign Litigation Of The Same Issues

Is A Suitable Subject For A Foreign

PAA TRIO case scisnvitcticciscetsessersccovee 13

B. Under Any Circuit’s Comity Standard,

' Issuance Of A Foreign Antisuit In-

junction Would Be Inappropriate On

ee I So shtornsdediiataatannidieidbiines 17

Ill. THE EIGHTH CIRCUIT DECISION CON-

FLICTS WITH NO DECISION OF THIS

CRSP IITT dccitibinssecdinigtvastutnicnnbicadiiaiinhevieentiniiainvess 19

IV. THIS CASE PRESENTS NO IMPORTANT

QUESTION OF FEDERAL LAW ................. 22

SPOR ATNIET Chasilecicinidibcinscbinctnebitioebiinetniassases 24

peal

,

iv

TABLE OF AUTHORITIES

CASES Page

Allendale Mut. Ins. Co. v. Bull Data Sys.,

Inc., 10 F.3d 425 (7th Cir. 1993)................ 15

Canon Latin Am., Inc. v. Lantech (CR),

S.A., 508 F.3d 597 (11th Cir. 2007).......... 15, 16

Chick Kam Choo v. Exxon Corp., 486 U.S.

RET TERE SERGEY Sm On ORE 20

Commercializadora Portimex S.A. de CV v.

Zen-Noh Grain Corp., 373- F: Supp. 2d

i: Bi IID ccchectcssinceseccntesscvdconsesetens 16

Dataphase Sys., Inc. v. C L Sys., Inc., 640

Pe 10D TOE Cir. ROBY) asec cccccceccsccescccdscesse. 6

Dietzsch v. Huidekoper, 103 U.S. 494

SSRIS 9) 210 AOSD RO Es ROR |

E. & J. Gallo Winery v. Andina Licores

S.A., 446 F.3d 984 (9th Cir. 2006)............ 15, 16

French v. Hay, 89 U.S. (22 Wall.) 250

4 REPRE REARS EIA Se INE Ee ARR EA 21

Gau Shan Co. v. Bankers Trust Co., 956

F.2d 1349 (Gth Cir. 1992)............cccccccccoscoese 15

Gen. Elec. Co. v. Deutz AG, 270 F.3d 144

I alae ie irre ic sastbangeve 14

Goss Intl Corp. v. Man Roland Druck-

maschinen Aktiengesellschaft, 434 F.3d

1081 (8th Cir.), cert denied, 126 S. Ct.

I iaitictiiasenitienviianndsniopornibciaabibocsese 3

Kaepa, Inc. vy. Achilles Corp., 76 F. 3d 624

A MIE cil scsiiiinsdanicdacacecepsbesbeelaweninnies 14

Karaha Bodas Co. v. Perusahaan Pertam-

bangan Minyak Dan Gas Bumi Negara,

500 F.3d 111 (2d Cir. 2007) ................... passim

Laker Airways Ltd. v. Sabena, Belgian

World Airlines, 731 F.2d 909 (D.C. Cir.

idicibiicesiicitindessenitindstiinnkignestiabscwinaistaklatan 14

Vv

TABLE OF AUTHORITIES -— continued

Page

Paramedics Electromedicina Comercial,

Ltda v. GE Med. Sys. Info. Tech., Inc.,

369 F.3d 645 (2d Cir. 2004) ............0.<0s..000. 14

Peacock v. Thomas, 516 U.S. 349 (1996)...... 20

Quaak v. Klynveld Peat Marwick Goerdeler

Bedrijfsrevisoren, 361 F.3d 11 (1st Cir.

SE isc ctntieicscndbibslidiis let aiccuccabiccataaditbvaesiesvins 14, 16

Silva Run Worldwide Ltd. v. Gaming

Lottery Corp., Nos. 96 Civ. 3231(RPP), 96

Civ. 5567(RPP), 2002 WL 975623

(S.D.N.Y. May 9, 2002), aff'd, 53 F. App’x

OR eA IE sara ciosoenindceesxnnsioneohtboaménds 17

Silua Run Worldwide Ltd. v. Gaming

Lottery Corp., 53 F. App’x 597 (2d Cir.

SUR AIIS ier CERO ear ONES URE OR OTe oe HER 17

Société Nationale Industrielle Aérospatiale

v. U.S. Dist. Court for the S. Dist. of

Fone, 4B2 U.S. G27 CRGBT) on ccccccsccccscvcovessesee 19

STATUTES

15 U.S.C. § 72 (repealed 2004)...................... 3, 11

Bree ONE sec iveniccinceenceosconesecionres 3

LEGISLATIVE HISTORY

H.R. Rep. No. 108-415 (2004) ......... ee. 5, 6, 18

INTERNATIONAL AUTHORITIES

Communication from the Arbitrator,

WT/DS 162/21 (Mar. 4, 2002) ..................... 18

Complaint by Japan, Report of the Panel,

United States — Anti-Dumping Act of

1916, WT/DS162/R (May 29, 2000) ........... 4,18

vi

TABLE OF AUTHORITIES - continued

Page

Minutes of Dispute Settlement Body Meet-

ing of March 8, 2002, WT/DSB/M/121

(Apr. 3, 2002)............. iitcaadbtekiiadlikadonbeabetedes 6

Minutes of Dispute Settlement Body Meet-

ing of October 2, 2003, WT/DSB/M/156

CO air bcccccecrdsdalincitincin a 8

Minutes of Dispute Settlement Body Meet-

ing of November 7, 2003, WT/DSB/M/157.

+ GEIR Ts BP ikiitisnecinsesevcodctniasegespinsiedeseses 5

Recourse to Arbitration, Decision by the

Arbitrators, United States - Anti-

Dumping Act of 1916, WT/DS136/ARB

(Feb. 24, 2004)........... EAR STARS: EMSRS oe Oe 5

World Trade Org., United States — Anti-

Dumping Act of 1916, Summary of the

Dispute to Date (Aug. 20, 2007), available

at http://www.wto.org/English/tratop_e/

dispu_e/cases_e/ds136_e.htm .................... 4,5

FOREIGN STATUTE

Special Measures Law, Law No. 162 of

hea ealckauoubepabeban 6

OTHER AUTHORITY

17A Charles Alan Wright, Arthur R.

Miller, Edward H. Cooper & Vikram

David Amar, Federal Practice &

Procedure (perm. ed. 2007) ...................2..- 20

INTRODUCTION

Respondents Tokyo Kikai Seisakusho, Ltd. and

TKS (USA), Inc. (“TKS”) respectfully submit this

brief in opposition to the Petition for a Writ of

Certiorari (the “petition”) filed by petitioner Goss

International Corp. (“Goss”). The petition should be

denied.

Petitioner seeks review of a decision of the Eighth

Circuit reversing the district court’s grant of a foreign

antisuit injunction that prevented a Japanese

company from commencing an action in Japanese

court, against a Japanese affiliate of Goss’s, and

under a Japanese law that creates an entirely

different cause of action and requires proof of facts

totally distinct from those at issue in the domestic

lawsuit.

The Eighth Circuit opinion does not present the

questions, or the conflicts with other decisions, that

petitioner alleges. Rather, the Eighth Circuit’s

decision is a straightforward application of settled

law to a unique set of facts and has exceedingly

limited application to other cases.

There is no merit to petitioner's principal claim

that the Eighth Circuit’s decision conflicts with the

Second Circuit’s ruling in Karaha Bodas Co. v.

Perusahaan Pertambangan Minyak Dan Gas Bumi

Negara, 500 F.3d 111 (2d Cir. 2007). Both circuit

panels relied upon meaningfully similar tests to

determine whether a foreign antisuit injunction could

appropriately issue — namely, whether the foreign

action as to which the antisuit injunction is sought

would relitigate issues addressed in the domestic

action. Addressing quite different facts, the two

circuits ounremarkably arrived at_ different

2

conclusions. Indeed, the Second Circuit decision —

issued after the Eighth Circuit’s decision — expressly

acknowledged that the different facts involved in the

two cases explained why the two circuits resolved

them differently: What petitioner describes as a

circuit “split” is merely two circuits engaging in

highly fact-bound applications of consistent legal

principles. |

In addition, petitioner errs in asserting that the

Eighth Circuit decision would enable-this: Court to

address the circuits’ divergent approaches regarding

the weight to give to international comity in the

context of foreign antisuit injunctions. The Eighth

Circuit found that petitioner’s motion for an antisuit

injunction failed on the preliminary ground that the

foreign action is not a relitigation of the domestic

action. Thus, the court had no cause to discuss

comity issues except as general dicta. And, to the

extent international comity may be relevant, it

strongly supports the outcome in this case under any

of the applicable standards. This case thus provides

the Court with no meaningful opportunity to address

any perceived divergences among the circuits on this

comity issue.

While petitioner does not even suggest that the

Eighth Circuit decision conflicts with decisions of this

Court, certain amici argue that the Eighth Circuit

decision departs from broad jurisdictional principles

endorsed by the Court. In fact, the broad questions

presented by the amici briefs are neither raised here

nor addressed by the Eighth Circuit in deciding this

fact-bound case. To the contrary, the Eighth Circuit’s

decision is fully consistent with the jurisdictional

holdings of this Court and of the courts of appeals.

This is, at base, a unique case involving a repealed

U.S. statute, lengthy WTO proceedings, and a

3

Japanese law that is applicable only to the Japanese

affiliates of the parties now before this Court.

Certiorari should be denied.

COUNTER-STATEMENT OF THE FACTS

1. In 2000, petitioner brought suit against TKS

(and other parties) under the Antidumping Act of

1916, 15 U.S.C. § 72 (repealed 2004) (the “1916 Act”).

The Act prohibited foreign exporters from “dumping”

— i.e, selling merchandise in the United States at

prices substantially below those at which they sell

such products in their home countries, provided they

do so with certain prohibited intent. The 1916 Act

provided for a private cause of action for domestic

parties injured by such imports, and authorized the

automatic trebling of damages plus attorney’s fees.

Only one final judgment was entered against a

defendant under the Act during its nearly 90-year

history ~ the judgment against TKS in favor of Goss

in 2003. Goss Intl Corp. v. Man _ Roland

Druckmaschinen Aktiengesellschaft (Goss I), 434 F.3d

1081, 1083-84 (8th Cir.), cert denied, 126 S. Ct. 2363

(2006).

2. In the late 1990s, the European Communities

(“EC”) and Japan separately requested that the

World Trade Organization (“WTO”) establish a

dispute settlement panel to determine whether the

1916 Act was inconsistent with the WTO Anti-

Dumping Agreement. Pet. App. 5a n.3.' In 2000 both

'In 1994, Congress approved the WTO Agreement. 19 U.S.C.

§ 3501 et seq. The WTO Agreement incorporates the most

recent version of the General Agreement on Tariffs and Trade

(the “GATT 1994”) and its ancillary agreements, including the

Agreement on Implementation of Article VI of the General

Agreement on Tariffs and Trade 1994 (the “WTO Anti-Dumping

Agreement”).

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WTO panels found that the 1916 Act violated the

GATT 1994 and the Anti-Dumping Agreement. Jd.

The panel handling Japan’s complaint concluded that

“since violations have been established that have not

been rebutted by the United States, the United

States nullifies or impairs benefits accruing to Japan

under the WTO Agreement” and suggested that “one

way for the United States to bring the 1916 Act into

conformity with its WTO obligations would be to

repeal the 1916 Act.”::Complaint.by Japan, Report.of

the Panel, United States — Anti-Dumping Act of 1916,

WT/DS162/R, 7] 6.289(g), 6.292, at 204, 205 (May 29,

2000).

The United States appealed both decisions to the

WTO Appellate Body, which sustained the - panels’

rulings. Thereafter, in September 2000, the Dispute

Settlement Body (“DSB”) adopted the panel and the

Appellate Body reports and formally requested that

the United States bring the 1916 Act into conformity

with its obligations under the GATT 1994 and the

Anti-Dumping Agreement. Pet. App. 5a n.3. The

United States then informed the DSB that it would

implement the DSB’s rulings and recommendations

by repealing the 1916 Act. Id.

In January 2002 the United States still had not

repealed the 1916 Act so the EC and Japan sought

authorization from the WTO to suspend concessions

granted to the United States, and the matter was

referred to arbitration. Pet App. 6a n.3. The United

States, however, requested that the arbitration be

suspended because “a proposal to repeal the 1916 Act

and to terminate cases pending under the Act was

being examined by the U.S. Congress.” World Trade

Org., United States - Anti-Dumping Act of 1916,

Summary of the Dispute to Date (August 20, 2007),

available at http://‘www.wto.org/English/tratop_e/

5

dispu_e/cases_e/ds136_e.htm. Based in part on this

representation, Japan and the EC agreed to suspend

‘temporarily the arbitration with the right to resume

the proceedings if no substantial progress was made

by June 2002. Id. In September 2003, because of the

United States’ continued failure to repeal the 1916

Act, the EC reactivated the arbitral proceedings. See

Minutes of DSB Meeting of October 2, 2003, WT/

DSB/M/156, at 2 (Nov. 10, 2003); Minutes of DSB

Meeting of November 7, 2003, WT/DSB/M/157, at 3

(Dec. 18, 2003).

On February 24, 2004, the arbitrators in the EC’s

dispute concluded that the measure of “nullification

or impairment of benefits” should specifically include

“any final judgments entered against EC companies

or their subsidiaries under the 1916 Act ... up to the

cumulative dollar or monetary value of the final

judgments.” Recourse to Arbitration, Decision by the

Arbitrators, United States — Anti-Dumping Act of

1916, WT/DS136/ARB, 4 5.58, at 23 (Feb. 24, 2004).

The ruling also determined that future judgments

and settlements were to be included in the

calculation of “nullification or impairment,” and

“[w]hat would be relevant for the purpose of this

calculation would be the total monctary value of such

judgments under the 1916 Act .. . which could be

matched by the suspension of obligations by the

European Communities of an equivalent monetary

amount.” Id. 4 6.6, at 27.

3. Congress repealed the 1916 Act in December

2004. The legislative history acknowledged that the

repeal was undertaken to comply with the United

States’ obligations under the WTO Agreement. H.R.

Rep. No. 108-415, at 2 (2004). Likewise, the House

Report indicated that the 1916 Act was obsolete and

not necessary to protect the United States from

PP ee oe

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dumping of foreign products into the U.S. market.

See id at 3. Congress, however, repealed the 1916

Act prospectively, thus leaving the litigation then

pending between petitioner and TKS in the Northern

District of lowa unaffected. Consequently, Congress

reneged on the repeated promises made by the

Executive Branch to the DSB and our WTO partners

that the repeal of the 1916 Act would expressly

“provide that no judgments pursuant to actions under

such Act shall be entered on or after 26 September

2000” — the latter being the date of the DSB’s

adoption of the panel and Appellate Body reports.

See Minutes of DSB Meeting of March 8, 2002,

WT/DSB/M/121, at 2 (Apr. 3,.2002).

4. In light of the United States’ failure, despite its

assurances, to repeal the 1916 Act retrospectively,

Japan enacted legislation on December 8, 2004, “to

protect the persons who incurred losses pursuant to

[the 1916 Act], and thus contribute to the healthy

development of the nation’s economy.” Special

Measures Law, Law No. 162 of 2004, art. 1. The

Special Measures Law authorizes Japanese

companies, such as TKS, which are compelled to pay

damages under the 1916 Act, to seek indemnification

in Japanese courts from any Japanese affiliate of the

U.S. company that obtained such damages.

5. On June 15, 2006, the district court issued an

Order granting petitioner’s motion for a preliminary

injunction preventing ‘TKS from asserting or

pursuing its rights in Japan under the Special

Measures Law. The court concluded that all four

factors set forth by the Eighth Circuit in Dataphase

Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114

(8th Cir. 1981) (en banc), weighed in favor of the

issuance of a preliminary injunction. Pet. App. 83a.

7

The Eighth Circuit unanimously reversed.

Beginning its discussion with a _ review: -of - the

standards applied by various courts of appeals when

addressing comity issues in the context of foreign

antisuit- injunctions, the court of appeals noted

broadly that the courts of appeals come within one of

two camps: “conservative” circuits which tend to be

more deferential to comity considerations and

“liberal” circuits that tend to be less deferential. Pet.

App. 9a-lla., Should a court need to balance comity,

considerations “when reviewing a foreign antisuit

injunction, the Eighth Circuit decided to side with

those “conservative” circuits that are more respectful

of foreign interests. Id. at 11a.

The Eighth Circuit next noted that parallel

proceedings in a domestic and foreign court ——

generally be allowed to proceed simultaneously “a

least until a judgment is reached in one be

which can be pled as res judicata in the other. Pet.

App. 22a (quoting Laker Airways Lid. v. Sabena,

Belgian World Airlines, 731 F.2d 909, 939 (D.C. Cir.

1984)). The court further concluded that only after

this threshold point is reached, can a court consider

other factors, such as “protecting United States

jurisdiction, preserving important United States

public policies, and balancing domestic interests with

the principles of international comity.” Jd. at 17a

(citing Laker Airways, 731 F.2d at 926-465).

Based on this framework, the Eighth Circuit

determined that a foreign antisuit injunction

prohibiting TKS from pursuing its rights under the

Japanese Special Measures Law was inappropriate.

It reasoned that “the United States courts are being

asked to prevent TKS from seeking a remedy

available solely in Japan,” which is “entirely new and

original” and “of a different kind or. . . principle than

ye er, eee ee oe

8

that of the prior decree.” Pet. App. 22a (internal

quotation marks omitted). It thus held that the

foreign action was not a relitigation of the domestic

action. Because no relitigation was at issue, no

justification remained for the district court to assert

that its jurisdiction over the prior U.S. action vested

it with authority to enjoin proceedings wholly under

Japanese law. Id. at 28a-29a.

Although this jurisdictional ruling was dispositive,

the court of appeals also addressed the district court’s

treatment of international comity concerns. Noting

Japan’s strong interest in the Special Measures Law,

the Eighth Circuit held that the “United States

Executive and Legislative Branches, not the

Judiciary,” are the appropriate governmental

branches to address any diplomatic issues arising

from the Japanese law. Pet. App. 27a. Accordingly,

the court of appeals concluded that “the jurisdictional

circumstances and comity considerations .... under

the facts of this case, [lead to the determination that]

the maintenance of the antisuit injunction on a

satisfied judgment cannot be justified.” Jd. at 28a-

29a (emphasis added).

REASONS FOR DENYING THE PETITION

The unremarkable decision of the Eighth Circuit

does not warrant this Court’s review. Petitioner's

assertion that there is a conflict between the Eighth

and Second Circuits ignores the basic point that both

circuits simply reached different conclusions as they

applied similar standards to vastly different facts.

Similarly, petitioner's claim that the lower court

deepened divergence among the circuits on the

question of deference to international comity in the

context of foreign antisuit injunctions is fatally

undermined by the Eighth Circuit's threshold

9

determination that petitioner's foreign antisuit

injunction motion failed, apart from and before the

court addressed comity considerations. The vacatur

of the injunction and dismissal of this action were

entirely consistent with this Court’s precedents. The

Eighth Circuit applied well-settled principles to a

unique situation in which all the relevant laws are

either repealed or have no effect beyond the parties to

this case.

I. NO CONFLICT EXISTS BETWEEN THE

’ DECISIONS OF THE EIGHTH CIRCUIT

AND THE SECOND CIRCUIT.

Petitioner initially seeks to have this Court review

what it describes — wrongly ~— as a “direct conflict”

between the Eighth Circuit’s decision and the Second

Circuit's decision in Karaha Bodas Co. v. Perusahaan

Pertambangan Minyak Dan Gas Bumi Negara, 500

F.3d 111 (2d Cir. 2007). Pet. at 16. Petitioner asserts

that the “Second Circuit specifically rejected the

Eighth Circuit’s holding and rationale in this case.”

Se ae y 2 These assertions are, however,

demonstrably incorrect.

Ignoring the plain language of the opinions,

petitioner asserts that Goss and Karaha Bodas Co.

make sweeping holdings on the question whether a

federal court possesses jurisdiction to enjoin a

defendant from pursuing litigation in a foreign court

after the defendant has satisfied the court’s adverse

judgment. Pet. at 16-19. Neither case does so.

Rather, in both cases, the touchstone inquiry is

whether the foreign action was a relitigation of the

domestic action. The Second Circuit held that the

foreign action was a relitigation of the issues that had

already been presented and resolved in the domestic

proceeding and, consequently, the federal court had

ancillary jurisdiction to issue the antisuit injunction.

10

Karaha Bodas Co., 500 F.3d at 121-23. The Eighth

Circuit, by contrast, recognized that there would be

no relitigation in this case. Any foreign action under

Japan’s Special Measures Law could proceed only on

the basis that a valid U.S. judgment had been

rendered against TKS. So long as that judgment

could be challenged, proceedings could not be

commenced in Japan pursuant to: the Special

Measures Law. Accordingly, in the absence of any

relitigation of issues underlying the- domestic suit,

the district court had no basis upon which to assert

that its jurisdiction continued once the judgment had

been satisfied. Pet. App. 20a-23a. In other words,

although the Eighth Circuit and Second Circuit

reviewed very different sets of fact, their analyses are

fully consistent.

Specifically, in Karaha Bodas Co., the Karaha

Bodas Company (“KBC”) received a large award

arising out of a Swiss arbitral proceeding stemming

from a joint development deal with Pertamina, an

Indonesian oil and gas company. Pertamina refused

to pay this award and KBC initiated confirmation

and enforcement proceedings in federal courts in the

Southern District of Texas and Southern District of

New York. Both courts agreed that the arbitral

award should be enforced and were respectively

affirmed by the Fifth and Second Circuits.

Pertamina satisfied the judgment but then

immediately brought a lawsuit against KBC in the

Cayman Islands arguing that the arbitration award

had been won by fraudulent means. KBC then

sought and was granted an antisuit injunction by the

Southern District of New York.

The Second Circuit affirmed; holding that even

after satisfaction of the judgment “federal courts have

continuing jurisdiction . . . to enjoin a party properly

1]

before them from relitigating issues in a non-federal

forum that were already decided in federal court.”

500 F.3d at_129 (emphasis added). In other words, a

district court may issue a foreign antisuit injunction

post satisfaction of the judgment when ““a prior court

has reached a judgment on the same issues.” Id. at

120 (emphasis added) (quoting Paramedics Electro-

medicina Comercial; Ltda -v.: GE Med. Sys. Info.

Techs., Inc., 369 F.3d 645, 654 (2d Cir. — _—

Laker Airways, 731 F.2d.at 928.n. 53)). way

Goss, on the other hand, dose * ‘net raise a

relitigation issue. The domestic lawsuit concerned

whether TKS violated the 1916 Act by importing or

selling ‘large newspaper printing presses (“LNPPs’”)

from Japan in the United States at prices

substantially less than the actual market value or

wholesale prices of such presses in Japan with the

intent of destroying or injuring the U.S. LNPP |

industry. See 15 U.S.C. § 72 (repealed 2004). In >

contrast, the Special Measures Law authorizes

companies, such as TKS, which are compelled to pay

damages under the 1916 Act, to seek indemnification

in Japanese courts from any Japanese affiliate of the

U.S. company that obtained such damages. Findings

of liability and satisfaction of that judgment are a

prerequisite to commencing an action under the

Special Measures Law, and a Japanese court has no

authority to reconsider the issues decided in a

lawsuit under the 1916 Act or to conclude that TKS

did not violate that Act.

Accordingly, the court below found:

The issues previously decided below in the

district court are different from the issues sought

to be litigated in the foreign jurisdiction. TKS

now seeks to litigate in Japan a cause of action

solely available in Japan and not previously

Ire,

FS

12

litigated in the antidumping litigation. The

issues are not the same simply because TKS’s

cause of action under the Special Measures Law

rests on the imposition of an adverse judgment

against TKS under the 1916 Act.

Pet. App. 23a.?

_ Far from “expressly reject[ing]’ the Goss decision,

Pet. at 13, the Second Circuit recognized that its

determination that a particular judgment was being

relitigated distinguished its case from Goss. Indeed,

the court sought to forestall any claims based on an

asserted inconsistency with Goss by emphasizing the

lack of a conflict between the two courts: “/mjoreover

as Goss suggests, a federal court may in some

circumstances (not presented here) have a diminished

need for an anti-suit injunction to protect a judgment

once ancillary proceedings to satisfy the judgment

have run their course.” Karaha Bodas Co., 500 F.3d

at 129 n.20 (emphasis added). Goss, too, is

inconsistent with petitioner's broad premise. There

the court of appeals stated, “we reach no categorical

conclusion regarding the propriety of the issuance of

an anti-suit injunction in all cases involving the

preservation of a judgment.” Pet. App. 29a n.9. No

disagreement exists here; to the contrary, the

decisions reinforce one another.

2 The Eighth Circuit noted that “the doctrine of res judicata

should apply as a defense to further litigation of the same

issues.” Pet. App. 22a (emphasis added). Because, by

commencing an action under the Special Measures Law, TKS

would not be relitigating the issues involved in the litigation of

the 1916 Act, it would not be challenging the res judicata effect

of the U.S. court’s judgment.

13

II. THIS CASE PROVIDES NO OPPORTUNITY

FOR THIS COURT TO ADDRESS PER-

CEIVED DIVERGENCES AMONG THE

CIRCUITS REGARDING THE TREATMENT

OF INTERNATIONAL COMITY.

Petitioner points to an inter-circuit divergence over

the treatment of international comity when

considering a foreign antisuit injunction, Pet. at 19,

but this case presents an exceptionally poor vehicle

for addressing that issue. The Eighth Circuit

independently recognized petitioner’s failure to meet

the prerequisites that would justify any consideration

of international comity. Moreover, an antisuit

injunction in this case would offend principles of

international comity under any applicable standard.

A. All Courts Of Appeals Concur That Only

Foreign Litigation Of The Same Issues

Is A Suitable Subject For A Foreign

Antisuit Injunction.

At the outset, petitioner’s claim that this case

would be a good vehicle to address the inter-circuit

divergence over the treatment of international comity

fails because the Eighth Circuit rejected the antisuit

injunction on the threshold basis that any Japanese

action would not be a relitigation of the U.S. domestic

action. The court observed that once one court

reaches final judgment, “the doctrine of res judicata

should apply as a defense to further litigation of the

same issues.” Pet. App. 22a (citing Laker Airways,

731 F.2d at 93%).

Indeed, the Eighth Circuit’s approach is consistent

with that of every court of appeals that has

considered the. prerequisites for a foreign antisuit

injunction — namely, the First, Second, Third, Fifth,

Sixth, Seventh, Ninth, Eleventh, and D.C. Circuits.

14

In Laker Airways, the D.C. Circuit set the pattern by

recognizing that. a court may protect its jurisdiction

from relitigation of the same issues. 731 F.2d 909,

927-28 (D.C. Cir. 1984). The court was concerned

with protecting the res judicata effect of its judgment,

not with whether a party may commence an action in

a foreign jurisdiction under. foreign-law that has:

different elements from those involved in the

domestic action. Indeed, Laker Airways explicitly

endorsed the right of a foreign defendant to seek

relief against a U.S. plaintiff in. the courts of the

defendant’s country. Id. on

Other circuit courts have similarly focused on

whether the foreign and domestic suits present

identical or overlapping issues. See Quaak v.

Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren,

361 F.3d 11, 18 (ist Cir. 2004) (“The gatekeeping

inquiry is, of course, whether parallel suits involve —

the same parties and issues. Unless that condition is

met, a court ordinarily should go no further and

refuse the issuance of an international antisuit

injunction.”) (emphasis added); Paramedics

Electromedicina Comercial, Ltda v. GE Med. Sys.

Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004)

(“An anti-suit injunction against parallel litigation

may be imposed only if: (A) the parties are the same

in both matters, and (B) resolution of the case before

the enjoining court is dispositive of the action to be

enjoined.”); Gen. Elec. Co. v. Deutz AG, 270 F.3d 144,

158 (3d Cir. 2001) (finding that foreign antisuit

injunction may be granted to sustain res judicata

effect, which requires “a final judgment on the merits

in a prior suit involving the same parties or their

privies, and a subsequent suit based on the same

cause of action”) (emphasis added); Kaepa, Inc. v.

Achilles Corp., 76 F.3d 624, 626-27 (5th Cir. 1996)

15

(holding that the district court did not abuse its

discretion in issuing foreign antisuit injunction when

party alleged “mirror image claims” in foreign

jurisdiction); Gau Shan Co. v. Bankers Trust Co., 956

F.2d 1349, 1352 (6th Cir. 1992) (“[P]arallel

proceedings on the same in personam claim should

ordinarily be allowed to proceed simultaneously, at

least until a judgment is reached in one [jurisdiction]

which can be pled as res judicata in the other.)

(second alteration in original) (second emphasis

added) (quoting Laker Airways, 731 F.2d at 926-27);

Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 10

F.3d 425,433 (7th Cir. 1993) (considering that the

“inability to plead res judicata might deprive [the

plaintiff] of the benefit of its judgment,” affirmed the

district court’s issuance of an antisuit injunction

which involved simultaneous actions concerning the

same liability); E. & J. Gallo Winery v. Andina

Licores S.A., 446 F.3d 984, 991 (9th Cir. 2006) (“In

applying this test, we believe the first step in

determining whether an anti-suit injunction is

appropriate is to determine whether or not the

parties and the issues are the same, and whether or

not the first action is dispositive of the action to be

enjoined.” (internal quotation marks omitted)); Canon

Latin Am., Inc. v. Lantech (CR), S.A, 508 F.3d 597,

601 (11th Cir. 2007) (per curiam) (“As an initial

matter, a district court may issue an anti-suit

injunction only if: (1) the parties are the same in both

the foreign and domestic lawsuits, and (2) resolution

of the case before the enjoining court is dispositive of

the action to be enjoined.”) (internal quotations and

alteration omitted).

3 Further belying petitioner’s claim of a split with the Second

Circuit is Karaha Bodas Co.'s reiteration of this same principle:

“[A]n anti-suit injunction against foreign litigation may be

16

Because courts only consider comity concerns after

these threshold requirements are met, petitioner’s

assertion of the int*~-circuit split on this issue is

irrelevant to the pro.» disposition of this case. Pet.

App. 22a (noting that when relitigation is not at

issue, “the role of comity for antisuit injunction

purposes essentially is moot”); see, e.g., Canon Latin

Am., 508 F.3d at 601 (“Once these threshold

requirements are satisfied, courts must then consider

additional factors to determine whether an injunction

is appropriate.”); Quaak, 361 F.3d at 18 (stating that

“filf — and only — if’ threshold requirements are met

should the court analyze international comity.

considerations); Paramedics, 369 F.3d at 652 (“Once

past this threshold [for an anti-suit injunction],

courts are directed to consider a number of additional

factors, including whether the foreign action

threatens the jurisdiction or the strong public policies

of the enjoining forum.”); E. & J. Gallo Winery, 446

F.3d at 991 (reaching comity considerations after

determining that the threshold requirements were

met).4

imposed only if two threshold requirements are met: ‘(A) the

parties are the same in both matters, and (B) resolution of the

case before the enjoining court is dispositive of the action to be

enjoined.” 500 F.3d at 119 (quoting Paramedics, 369 F.3d at

652).

4Nor do any of the cases cited by petitioner support a

contrary conclusion. For example, in Commercializadora

Portimex S.A. de CV v. Zen-Noh Grain Corp., 373 F. Supp. 2d

645 (E.D. La. 2005), the district court permanently enjoined the

plaintiff from bringing suit in Mexico because: (1) it would be an

inequitable hardship for the defendant to litigate the same

claims again in a foreign jurisdiction; (2) it would be “clearly

inefficient to permit parties to thwart-the finality of judgments

by relitigating the same claims once they have been fully

adjudicated”; and (3) “the litigation in Mexico is duplicative of

17

B. Under Any Circuit’s Comity Standard,

Issuance Of A Foreign Antisuit In-

junction Would Be Inappropriate On

These Facts.

Even if this case did involve foreign court

relitigation of domestically-resolved issues, this case

would be-a poor vehicle ‘to address divergent

approaches to the treatment of-international comity,

because those considerations weigh heavily against

granting a’ foreign” antisuit:: injunction’ ‘urder’ any

standard. “Under either the conservative or liberal

approach, ‘[w]hen a preliminary injunction takes the

form of a foreign anti-suit injunction, [courts] are

required to balance domestic judicial interests

against concerns of international comity.” Pet. App.

10a (alterations in original) (quoting Karaha Bodas

Co., LLC v. Perusahaan Pertambangan Minyak Dan

Gas Bumi Negara, 335 F.3d 357, 366 (5th Cir. 2003)).

the litigation that took place before [the district court].” Jd. at

649-50 (emphasis added). Similarly, in Silva Run Worldwide

Ltd. v. Gaming Lottery Corp., 53 F. App’x 597 (2d Cir. 2002), the

Second Circuit affirmed the district court’s decision to enjoin the

former president of an internet gaming operation from pursuing

an incipient lawsuit for attorney malpractice brought in Canada

against his and the company’s former counsel. Jd. at 597-98.

The district court previously had resolved an ancillary dispute

between the former president, the company, and their counsel,

which included allegations of attorney malpractice that had

been raised but not pursued. Jd. at 598. In the second lawsuit,

the district court issued an antisuit injunction to avoid

“vexatious relitigation” of matters that were or could have been

raised in the first U.S. action. Silva Run Worldwide Ltd. v.

Gaming Lottery Corp., Nos. 96 Civ. 3231(RPP), 96 Civ.

5567(RPP), 2002 WL 975623, at *9-10 (S.D.N.Y. May 9, 2002).

None of these cases, or any other case cited by Goss, indicates

that a U.S. court may seek to prevent a foreign national, such as

TKS, from having recourse to its own courts for relief under a

foreign statute that does not involve issues that have been

resolved by U.S. courts.

18

The Special Measures Law reflects a wholly

legitimate act by the Government of Japan to protect

its nationals from a continuing violation by the

United States of its international obligations. Japan

enacted the Special Measures Law following

extensive proceedings in the WTO and the failure of

the United States fully to comply with the WTO

rulings. The 1916 Act was found by two WTO panels

to violate the WTO Agreement. Pet App. 5a n.3. The

panel handling Japan’s complaint suggested that

“one way for the United States to bring the 1916 Act

into conformity with its WTO obligations would be to

repeal the 1916 Act.” Complaint by Japan, Report of

the Panel, United States — Anti-Dumping Act of 1916,

WT/DS162/R, supra, § 6.292, at 205. Despite

repeated assurances by the United States to Japan

and other Members of the WTO to the contrary,

Congress only prospectively repealed the 1916 Act.

See Communication from the Arbitrator, WT/DS162/

21 (Mar. 4, 2002). The legislative history accompany-

ing the 1916 Act’s repeal suggests that Japan enacted

the Special Measures Law because the Japanese Diet

considered it a necessary response to the United

States’ continuing violation of its international

obligations. See H.R. Rep. No. 108-415, at 5.

In addition, petitioner's argument incorrectly

assumes that an action in Japan directly undermines

the federal courts’ jurisdiction and the particular

judgment here. Pet: at 16. As discussed above, an

action under the Special Measures Law is predicated

upon, and does not relitigate, the validity of the U.S.

judgment. Instead, the Special Measures Law allows

Japan to assert its rights under international law

pursuant to the WTO’s repeated findings that the

1916 Act was inconsistent with the United States’

obligations under the WTO Agreement.

19

The Government of Japan did not pass the Special

Measures Law simply because it disapproved of the

1916 Act or found the treble damages remedy

offensive. Japan passed the Special Measures Law

only after the WTO had determined that the 1916 Act

was inconsistent with the WTO Agreement, and that

the United States had “nullified” the rights of Japan

under that Agreement.

Consequently, . the issuance of..a. preliminary

injunction prohibiting. TKS from commencing.. an.

action under the Special Measures Law would be

clearly destructive of international comity under any

standard, inasmuch as it entirely disregards the

balance of remedies and obligations established by

the WTO, to which both the United States and Japan

have acceded. The court of appeals’ holding,

therefore, is wholly consistent with “the spirit of

cooperation in which a domestic tribunal approaches

the resolution of cases touching the laws and

interests of other sovereign states.” Société Nationale

Industrielle Aérospatiale v. U.S. Dist. Court for the S.

Dist. of Iowa, 482 U.S. 522, 544 n.27 (1987).

Ill. THE EIGHTH CIRCUIT DECISION CON-

FLICTS WITH NO DECISION OF THIS

COURT.

Amici law professors seek to demonstrate that the

court of appeals’ view of ancillary or supplemental

jurisdiction is somehow needlessly “confine[d],” in

conflict with this Court’s decisions. See Law

Professors’ Amicus Br. at 8. The most direct rebuttal

is that petitioner itself has failed to perceive or assert

any such conflict. In addition, the court of appeals

articulated its understanding that there may, indeed,

be reasons supporting ancillary jurisdiction more

broadly in other contexts, but that no jurisdiction

existed on these unique facts. Pet. App. 29a n.9. The

20

Goss court had no occasion to address the broad

question posed by the law professors — whether a

federal court will. usually possess _ ancillary

jurisdiction after a judgment has been satisfied.

Instead, the Eighth Circuit’s decision accords with

the general rule, articulated by this Court, that a

court retains jurisdiction “until satisfaction of the

judgment.” Pet. App. 2la (citing Peacock v. Thomas,

516 U.S. 349, 356-57 (1996) (emphasis in original)).

Once, however, a judgment is satisfied, there must

exist a close connection between the separate

proceedings before a court would have jurisdiction —

post satisfaction of a judgment — to enjoin litigation

occurring elsewhere. See Peacock, 516 U.S. at 358

(noting that “[iJn determining the reach of the federal

courts’ ancillary -jurisdiction, we have cautioned

against the exercise of jurisdiction over proceedings

that are entirely new and original, or where the relief

sought is of a different kind or on a different principle

than that of the prior decree” (internal quotation

marks, citations, and alteration omitted)). The Eighth

Circuit’s fact-bound jurisdictional determination does

not conflict with this, or any other, Court precedent.

See also Chick Kam Choo v. Exxon Corp., 486 U.S.

140, 147 (1988) (“[A] federal court [may] prevent state

litigation of an issue that previously was presented to

and decided by the federal court. [This power] is

founded in the well-recognized concepts of res

judicata and collateral estoppel.”); id. at 150-51,

(affirming anti-suit injunction protecting from

relitigating a ruling in earlier federal judgment of

dismissal); cf. 17A Charles Alan Wright, Arthur R.

Miller, Edward H. Cooper & Vikram David Amar,

Federal Practice & Procedure § 4226 (perm. ed. 2007) |

(“No independent basis of jurisdiction is required for

21

a federal court to entertain an application to enjoin

relitigation in state court.”) (emphasis added).

Nothing in the Eighth Circuit’s decision suggests

that it contains a broad holding, as implied by the

professors, that subject matter jurisdiction

terminates whenever a judgment is paid. Rather, the

court of appeals cited Peacock only for the limited

proposition that “the district court retained ancillary

enforcement jurisdiction until satisfaction of the

judgment.” Pet. App. 21a. Goss simply addresses the

particular issues that arise in this case when

ancillary jurisdiction cannot be immediately

assumed. Indeed, in reaching its conclusion that no

ancillary jurisdiction existed here, the court of

appeals largely agreed with the law professors that,

among the important jurisdictional considerations,

courts should look to the ability of the court to

function. See Law Professors’ Amicus Br. at 12 n.16.

The Goss court concluded, rightly, that the ability of a

court to function was not implicated by the foreign

action in this case and thus auxiliary jurisdiction

does not attach. Pet. App. 2la-23a. Whatever the

law professors may think of that ultimate

determination, the court of appeals’ reasoning was

sound and well grounded in this Court’s relevant

precedents.5

5 The law professors additionally rely on the Court's holdings

in’ French v. Hay, 89.U.S. (22 Wall.) 250 (1874), and Dietzsch v.

Huidekoper, 103 U.S. 494 (1880), to argue that antisuit

injunctions may be properly issued to prevent the nullification of

a federal judgment. As discussed above, Goss in no way holds

that federal courts are generally without the power to issue

antisuit injunctions. The professors’ emphasis of the Court's

recognition of this power in French and Dietzsch is therefore

without consequence here. Moreover, as discussed supra pp. 11-

12, the professors’ premise that a Japanese action brought

pursuant to the Special Measures Law would effect a

22

IV. THIS CASE PRESENTS NO IMPORTANT

QUESTION OF FEDERAL LAW.

Amici States of New Hampshire and Oregon argue

that this Court’s review is warranted because Japan’s

clawback statute -— indeed, all clawback statutes —

threatens to undermine U.S. domestic courts’ ability

to effectuate their domestic law judgments. The

States argue that this case provides an opportunity

for this Court to endorse an un, recedented policy

against recognizing foreign clawback statutes in U:S.

domestic courts. States’ Amici Br. at 4-6. As

important as these issues may be, no decision by this

Court supports the States’ desired outcome, and this

case presents no opportunity to address the broader

issues raised by the two States. Those issues are, at

their _core, quintessential foreign affairs

considerations traditionally addressed on a bilateral

diplomatic basis between nations.

Initially, the two States err in asserting that the

“judgments” of the district court would be affected in

any way by an action in Japan under the Special

Measures Law. See id. at 10-12. To the contrary,

what is at stake is the authority of a Japanese court

to entertain and adjudicate a claim by a Japanese

entity that was properly commenced pursuant to

domestic Japanese law. As canvassed above, the

Special Measures Law authorizes TKS’s claims

nullification of the domestic action is unsound. Any action

separately brought in Japan would be predicated not upon some

theory of the U.S. judgment’s impropriety but, rather, would

necessarily acknowlefge the validity of that domestic judgment.

Thus, any potential «apanese action could not be a relitigation

and would not then raise the question this Court addressed in

both French and Dietzsch — namely, the contours of federal court

power to issue an antisuit injunction in protection of its

judgment when a state court action would otherwise proceed to

address the same issues.

23

against the Japanese affiliate of Goss under an

entirely different cause of action, requiring distinct

facts and separate proofs. The U.S. lawsuit under the

1916 Act, other than the bare fact of TKS’s payment

of damages, will have no relevance to the action in

Japan. For this reason, the cases of this Court briefly

cited by the amici States, see id., are readily

distinguished.

More importantly, Japan’s clawback statute is

unlike other clawback statutes-that have generated.

controversies with foreign governments in the past.

Japan enacted the Special Measures Law only after

and pursuant to extensive WTO proceedings to

correct an unjust result arising from the continued

application of the 1916 Act affecting one of its

nationals. Japan’s law therefore focuses in a limited

way on the harm gererated by the United States’

violation of the WTO Agreement through its failure to

repeal the 1916 Act comprehensively — precisely the

calibrated response that is anticipated by the

Agreement. The international comity considerations

weighing in favor of this particular clawback statute

are far different from those supporting other

clawback statutes. If the two States nonetheless

believe that a clawback statute — even of this limited

nature — is improper, the appropriate form of redress

is diplomatic, not judicial.

Moreover, the Special Measures Law is also

distinguished from most other clawback statutes in

that it is a targeted measure that applies only to one

dispute. As the Eighth Circuit emphasized, “[t]he

Special Measures Law has a one-time application:

There is no pending litigation under the now-defunct

1916 Act; Goss received the only judgment ever

granted under the Act; thus, the only lawsuit possible

under the Special Measures Law can be brought

24

against Goss alone.” Pet. App. 24a. Consequently,

this case presents a poor backdrop to consider the

finding that the two States invite — a categorical

holding that all foreign clawback statutes deprive a

U.S. court of its jurisdiction and all foreign actions

under a clawback statute should be enjoined. States’

Amici Br. 4-6. In any case, if this is a recurring issue

as claimed by New Hampshire and Oregon in their

brief, significantly better vehicles to address this

issue will be available to the Court in the future.

CONCLUSION

For the foregoing réasons, the petition should be

denied. ;

Respectfully submitted,

HOKEN S. SEKI CARTER G. PHILLIPS*

LAW OFFICES OF HOKEN LAWRENCE R. WALDERS

S. SEKI NEIL R. ELLIS

225 Deerpath Road RICHARD D. KLINGLER

Suite 224 BRIAN E. NELSON

Lake Forest, IL 60045 SIDLEY AUSTIN LLP

(847) 234-5252 1501 K Street, N.W.

| Washington, D.C. 20005

PETER J. TOREN (202) 736-8000

KASOWITZ, BENSON,

TORRES & FRIEDMAN LLP

1633 Broadway

New York, NY 10019

(212) 506-1700

Counsel for Tokyo Kikai Seisakusho, Ltd. and TKS

(USA), Inc.

January 9, 2008 * Counsel of Record