Amicus Curiae Brief — Reebok Internationale Ltd. v. Banque Internationale A. Luxembourg S. A.

° aa

(a) Supreme Court, U.S.

No. 95-85 FILED

SEP 8 1995

Supreme Cet of the Bot Stat al

October Term, 1995

REEBOK INTERNATIONAL LTD. and

REEBOK INTERNATIONAL LIMITED

Petitioners,

v.

BANQUE INTERNATIONALE

A LUXEMBOURG S.A.,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE NINTH CIRCUIT

RESPONSE OF BANQUE INTERNATIONALE A

LUXEMBOURG S.A. IN OPPOSITION TO MOTION

OF AMICUS CURIAE FOR LEAVE TO FILE

OUT-OF-TIME BRIEF

LAWRENCE M. HARNETT

Counsel of Record

DIANE C. HERTZ

MARKS & MURASE L.L.P.

399 Park Avenue

New York, New York 10022

(212) 318-7700

Counsel for Respondent

Banque Internationale

a Luxembourg S.A.

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RESPONSE OF BANQUE INTERNATIONALE A

LUXEMBOURG S.A. IN OPPOSITION TO MOTION OF

AMICUS CURIAE FOR LEAVE TO FILE

OUT-OF-TIME BRIEF

The Respondent, Banque Internationale a Luxembourg S.A.

(“BIL”), respectfully submits this Response in Opposition to the

Motion for Leave to File Out-of-Time Brief (the “Motion”) of

Amicus Curiae International AntiCounterfeiting Coalition (the

“IACC”). As demonstrated below, the IACC’s Motion and the

brief submitted therewith are untimely pursuant to Sup. Ct. R.

37.2. As such, the Motion should be denied and the brief should

be given no consideration by the Court.

ARGUMENT

Rule 37.2 of the Supreme Court Rules governs the filing of

amicus curiae briefs on a petition for writ of certiorari and

provides in pertinent part:

A brief of an amicus curiae submitted

prior to the consideration of a petition for a

writ of certiorari or a jurisdictional statement,

accompanied by the written consent of all

parties, may be filed only if submitted

within the time allowed for filing a brief in

opposition to the petition for a writ of

certiorari or for filing a motion to dismiss or

affirm. A motion for leave to file a brief

amicus curiae when consent has been refused

is not favored. Any such motion must be

filed within the time allowed for the filing

of the brief amicus curiae....

Sup. Ct. R. 37.2 (emphasis added).

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2

This rule is mandatory in nature — an untimely amicus

curiae brief or motion for leave to file same will not be

considered by the Court. See, e.g., J. Moore, 13 Moore’s Federal

Practice { 837.11 at SC37-11 (1995) (providing that “timeliness

on the part of the amicus in filing the brief is very important” and

that any motion for leave to file an amicus brief “must be filed

within the [Rule 37.2] time periods for filing of the brief.”).

The Motion by the IACC in the instant case is untimely. The

IACC first requested BIL’s consent to the filing of an amicus brief

on August 23, 1995 — five days after the August 18, 1995 due

date for BIL’s submission of its Brief in Opposition to the Petition

for Writ of Certiorari filed by Reebok.’ In light of the fact that any

amicus brief or motion for leave to file same would already have

been untimely, BIL’s counsel advised the IACC’s counsel by

letter dated August 24, 1995 that BIL would not consent to the

IACC’s submission of an amicus brief. Thereafter, by Motion

dated August 28, 1995, the IACC sought leave to file an

untimely amicus brief.

The IACC has conceded that its Motion is untimely, but has

requested that it be excepted from the timeliness requirement of

Sup. Ct. R. 37.2 on the basis that its brief raises important issues

that the Court should consider. IACC Motion at 1-2. Rule 37.2

provides for no such exception. Accordingly, the IACC’s Motion

for leave to file an untimely brief should be denied and the brief

should not be considered by the Court.

In any event, the simple fact is that the IACC’s brief does not

raise any issues of importance for this Court. While the IACC’s

brief boldly proclaims that the decision of the Ninth Circuit will

' The definitions and abbreviations used in BIL’s Brief in Opposition to

Reebok’s Petition for Writ of Certiorari (“BIL Brief”) will also be used herein.

BIL’s List of Interested Parties is included in BIL’s Brief at ii-iii.

3

be a boon for counterfeiters (IACC Brief at 2-5), it fails to present

any support for this statement. Indeed, the IACC has not cited a

single other case in which a plaintiff has failed to prevent a

defendant such as McLaughlin from violating a United States

injunction by withdrawing restrained funds from a foreign bank

where, as here, the plaintiff had prior knowledge of the

identity of the foreign bank. This omission is not surprising

since other countries, like Luxembourg in this case, typically

have available procedures that allow a plaintiff to obtain legal

effect for a United States court order and thereby ensure the

continued restraint of illegally laundered funds. See BIL Brief at

16-17. The IACC’s “boon to counterfeiters” argument ignores

reality.

Moreover, the IACC’s brief raises no issues of importance

because it is built upon a complete misunderstanding of the

factual record below. Thus, the IACC liberally sprinkles its brief

with findings adverse to BIL made by the District Court, all of

which were based upon the District Court’s clearly erroneous

conclusion that the Heatherdale court in Luxembourg had not

been apprised of the Restraining Order when it ordered BIL to

release the funds. See IACC Brief at 3, 10, 11. In fact, as the

Court of Appeals correctly concluded, “[t]he Heatherdale Order

was issued with full knowledge of both the TRO and its

ineffectiveness under Luxembourg law.” App. at 59a.

Finally, the IACC brief raises no issues of importance

because it reflects a fundamental misunderstanding of the Ninth

Circuit’s decision. The IACC complains that the Ninth Circuit

did not perform the balancing test required when applying a

United States judicial decree extraterritorially. IACC Brief at

15-18. In fact, however, the Ninth Circuit conducted an

exhaustive balancing test, weighing the various factors in favor

of and against the exercise of jurisdiction over BIL in this case.

App. at 59a-61a. In light of the specific factual record which

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established, inter alia, that BIL had no presence in the forum, that

all relevant conduct took place in Luxembourg and that BIL was

compelled by Luxembourg law, including the Heatherdale Order,

to release the funds to McLaughlin, the Ninth Circuit ultimately

concluded:

Thus, on balance, fairness .. . dictates that

personal jurisdiction must fail in this case.

App. at 61a (emphasis added).”

The IACC’s real complaint is that the Ninth Circuit

conducted a balancing test at all. According to the IACC, the

location of BIL’s conduct was irrelevant and, therefore, the Ninth

Circuit should have disregarded the fact that BIL was a foreign

national located on foreign soil acting under compulsion of

foreign law, and simply decreed a per se rule that the Restraining

Order was binding upon BIL because United States injunctions

bind the world. See IACC Brief at 11-13. Needless to say, the

IACC has presented no good reason for this Court to create such

an expansive rule of law and thereby disregard the well-settled

principles of comity and due process that guided the Ninth Circuit

in reaching its decision.’

2 The IACC attempts to make much of the fact that BIL maintains a small

representative office in New York. IACC Brief at 8 n.5, 11. However, the

record below confirmed that BIL’s New York representative office had

absolutely no involvement in the relevant events and, in fact, is strictly

prohibited under New York banking laws from engaging in any banking

business whatsoever. Ex.R. at 64. Based upon this factual record, both the

District Court and the Court of Appeals recognized that BIL does not do

business anywhere in the United States. App. at 21a, 47a, 53a. Upon

weighing all of the facts of this case, the Court of Appeals correctly determined

that BIL could not be subject to jurisdiction.

>In an effort to suggest that the Ninth Circuit’s decision conflicts with

decisions of this Court and other Courts of Appeal, the IACC has effectively

(Cont'd)

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CONCLUSION

The IACC’s brief is untimely and raises no issues of

importance warranting consideration by this Court. BIL

respectfully submits that the Motion for Leave to File Out-of-

Time Brief should be denied.

Dated: September 8, 1995

Respectfully submitted,

LAWRENCE M. HARNETT

Counsel of Record

DIANE C. HERTZ

MARKS & MURASE L.L.P.

399 Park Avenue

New York, New York 10022

(212) 318-7700

Counsel for Respondent

Banque Internationale

a Luxembourg S.A.

(Cont'd)

adopted the same arguments advanced by Reebok in its Petition. See IACC

Brief at 8-17. Just as with Reebok’s showing, all of the cases cited by the IACC

are distinguishable from this case and do not even remotely conflict with the

Ninth Circuit's decision. See BIL Brief at 12-16.

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