# Opposition Brief — Saldajeno v. Ishihara Sangyo Kaisha, Ltd. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1674%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2003 - **Citation:** 540 U.S. 821 ## Text &) Nos. 02-1773, 02-1778 | Alig 4 — 2003 IN THE |) LOPFICE OF THE CLERK Supreme Court of the Gnited States — Do GEUN OH, ET AL., Petitioners, MITSUI & Co., LTD., ET AL., Respondents. ZHENHUAN MA, ET AL., Petitioners, KAJIMA CORPORATION, ET AL., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RESPONDENTS’ BRIEF IN OPPOSITION Margaret K. Pfeiffer Joseph J. Reilly SULLIVAN & CROMWELL LLP 1701 Pennsylvania Ave., NW Washington, DC 20006 (202) 956-7500 Counsel for Respondents Nippon Steel U.S.A., Inc. and Nippon Steel Corp. August 4, 2003 Arne D. Wagner Counsel of Record Kathleen V. Fisher John A. Kelley MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 Counsel for Respondents Mitsubishi Corp. and Mitsubishi International Corp. (Additional counsel listed within) Barbara L. Croutch PILLSBURY WINTHROP, LLP 725 S. Figueroa St., Suite 2800 Los Angeles, CA 90017 (213) 488-7100 Counsel for Respondents Mitsubishi Heavy Industries America, Inc. and Mitsubishi Heavy Industries, Ltd. Sara D. Schotland CLEARY, GOTTLIEB, STEEN & HAMILTON 2000 Pennsylvania Ave., NW Washington, D.C. 20006 (202) 974-1500 Counsel for Respondent Showa Denko America, Inc. Bruce E. H. Johnson DAVIS WRIGHT TREMAINE LLP 1501 Fourth Avenue 2600 Century Square Seattle, WA 98101 (206) 662-3150 Counsel for Respondents Mitsubishi Heavy Industries, Lid. and Mitsubishi Heavy Industries America, Inc. (in Choe) A. Victor Antola Daniel L. Martens LATHAM & WATKINS 633 West Fifth Street Suite 400 Los Angeles, CA 90071-2007 (213) 485-1234 Counsel for Respondents Kajima USA, Inc., Kajima International, Inc., Kajima Engineering & Construction, Inc., Kajima Development Corp., and Kajima Construction Services, Inc. John H. Beisner John F. Niblock Pammeta-Quinn O’MELVENY & MYERS LLP 1625 Eye Street, N.W. Washington, D.C. 20006-4001 (202) 383-5300 Counsel for Respondents Mitsubishi Materials Corp. and Mitsubishi Materials U.S.A. Corp. Arthur W. Harrigan Garth Wojtanowicz DANIELSON, HARRIGAN & TOLLEFSON, LLP 999 Third Avenue, Suite 4400 Seattle, WA 98104 (206) 623-1700 Counsel for Respondents . Mitsubishi Heavy Industries, Lid. and Mitsubishi Heavy Industries America, Inc. (in Choe) TRI ne ae ae raga agitate Nathan Lane III Joseph A. Meckes SQUIRE, SANDERS & DEMPSEY, LLP One Maritime Plaza, Suite 300 San Francisco, CA 94111 (415) 954-0200 Counsel for Respondents Paceco Corp. and Mitsui Engineering & Shipbuilding Co., Ltd Thomas D. Yannucci, P.C. Christopher Landau Brant W. Bishop KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 (202) 879-5000 Counsel for Respondents Sumitomo Heavy Industries (U.S.A.) and Sumitomo Heavy Industries, Ltd. Lloyd W. Aubry, Jr. Kathryn M. Davis MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 (415) 268-7000 Counsel for Respondents Ishikawajima-Harima Heavy Industries Co., Ltd. and THI, Inc. Stephen V. Bomse Neil A.F. Popovic HELLER EHRMAN WHITE & MCAULIFFE LLP 333 Bush Street San Francisco, CA 94104-2878 (415) 772-6000 Counsel for Respondent Showa Denko America, Inc. David M. Balabanian Christopher B. Hockett Thomas S. Hixson BINGHAM MCCUTCHEN LLP 3 Embarcadero Center 18th Floor San Francisco, CA 94111 (415) 393-2000 Counsel for Respondents Mitsui & Co., Ltd. and Mitsui & Co. (U.S.A.), Inc. Matthew E. Digby Heidi A. Leider BINGHAM MCCUTCHEN LLP 355 S. Grand Avenue Suite 4400 Los Angeles, CA 90071 (213) 680-6400 Counsel for Respondents Mitsui Mining Co., Ltd. and Mitsui Mining U.S.A., Inc. Question Presented Whether the Ninth Circuit correctly held that a 1999 California statute purporting to create a private night of action on behalf of “Second World War forced labor victim[s]” is preempted under the foreign affairs doctrine as recently explicated by this Court’s decision in American Insurance Association v. Garamendi, where the United States’ foreign policy-— exemplified in its drafting, negotiation and ratification of the multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169 — has already resolved the war and all war-related claims as a matter of United States law, including consigning such claims by Korean and Chinese nationals to diplomatic resolution. i Rule 29.6 Corporate Disclosure Statement Ishikawajima-Harima Heavy Industries Co., Ltd. is a Japanese public company and is listed on the Tokyo Stock Exchange. Ishikawajima-Harima Heavy Industries Co., Ltd. has no parent company, and no publicly held company owns 10% or more of its stock. IHI, Inc. is a wholly owned subsidiary of Ishikawajima-Harima Heavy Industnes Co., Ltd. Kajima Construction Services, Inc. is a wholly owned subsidiary of Kajima International, Inc., which is a wholly owned subsidiary of Kajima USA, Inc., which is a wholly owned subsidiary of Kajima Corporation, a Japanese corporation. Kajima Corporation has no parent company, and no publicly held company owns 10% or more of its stock. Kajima Development Corporation is a wholly owned subsidiary of Kajima Real Estate Development, Inc., which is a wholly owned subsidiary of Kajima USA, Inc., which is a wholly owned subsidiary of Kajima Corporation. Kajima Engineering and Construction, Inc. is a wholly owned subsidiary of Kajima Corporation. Kajima International, Inc. is a wholly owned subsidiary of Kajima USA, Inc., which is a al owned subsidiary of Kajima Corporation. Kajima USA, Inc. is a wholly owned subsidiary of Kajima Corporation. Mitsubishi Corporation is a public company listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of the outstanding stock of Mitsubishi Corporation. Mitsubishi International Corporation is a wholly owned subsidiary of Mitsubishi Corporation. Mitsubishi Heavy Industries, Ltd. is a Japanese public company and is listed on the Tokyo Stock Exchange. No - ill - publicly held company owns 10% or more of its stock. Mitsubishi Heavy Industries America, Inc. is a wholly owned subsidiary of Mitsubishi Heavy Industries, Ltd. Mitsubishi Materials Corporation has no _ parent corporation, and no publicly held company owns 10% or more of its stock. Mitsubishi Materials U.S.A. Corporation’s _ parent corporation is Mitsubishi Materials Corporation, and no other publicly held company owns i0% or more of Mitsubishi Material U.S.A. Corporation’s stock. Mitsui & Co., Ltd. is a public company listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of the outstanding stock of Mitsui & Co., Ltd. Mitsui & Co. (U.S.A.), Inc. is a wholly owned subsidiary of Mitsui & Co., Ltd. Mitsui Engineering & Shipbuilding Co., Ltd. has no parent corporation, and no publicly traded company owns 10% or more of its stock. Mitsui Mining Co., Ltd. is a Japanese public company and is listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of its stock. Mitsui Mining U.S.A., Inc. is a wholly owned subsidiary of Mitsui Mining Co., Ltd. Nippon Steel Corporation is a Japanese public company, listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of its stock. Nippon Steel U.S.A., Inc. is a wholly owned subsidiary of Nippon Steel Corporation. Paceco Corp.’s parent corporation is Mitsui Engineering & Shipbuilding Co., Ltd., and Mitsui & Co., Ltd. owns over 10% of its stock. Showa Denko America, Inc. is a wholly owned subsidiary of Showa Denko K.K. Showa Denko K.K. is a Japanese public company, listed on the Tokyo Stock Exchange. No -iV- . publicly held company owns more than 10% or more of Showa Denko K.K.’s stock. Sumitomo Heavy Industries, Ltd. 1s a Japanese public company and is listed on the Tokyo Stock Exchange. No publicly held company owns 10% or more of its stock. Sumitomo Heavy Industries (U.S.A.), Inc. is a wholly owned subsidiary of Sumitomo Heavy Industries, Ltd. “Ve TABLE OF CONTENTS Page NNN NII caclcancetaiidisibccisditendtaiahihea voieesiancisdienpmaleaecenasonecinataaniaes 3 Pertinent Constitutional Provisions, Treaties and Statutes ................... sahendaidaeiedaasinmenin iencaall 3 SNS NT HD Isiah canstscctrycnsesnacassihcnepoacengudecineanbedejacedons 5 A. NINE ss se csslsescsteninideniiciokadsanlinerNeuancebboias 6 B. Petitioners’ ATegations...........0...c.secsseseseseees 9 i Proceedings in the District Court................ 10 D. The Court of Appeals Decision................... 1] PE saiiscaciccladissccccinheceniiinmssiacsaiasleiesnbeunsainnaiediapiiintile 13 I. Because the Ninth Circuit’s Decision Accords with Garamendi, the Petitions Should Be A. As Applied to Respondents, Section 354.6 Is Preempted Under the “Field” Theory Described in Garamendi................. 14 zs This Case Presents Precisely the Circumstances that Make Field Preemption “the [A]ppropriate [D]joctrine” Under Garamendi.................0.csss000 14 pa Field Preemption Is Particularly Appropriate Where, as Here, the Federal Government Has Exercised Its Pe a. saiicietastetinccaniacgenpanioine 16 B. Particularly As Applied to Respondents, Section 354.6 Is Equally Preempted Under the “Conflict” Theory Described in Garamendi................. 17 os TABLE OF CONTENTS (continued) Page l. The State’s Interest Is SII iicesesnsiniecncseniiellaianintiocens 18 y The Conflict with the Allied CE seididescidlacenctbilnpnnitbbipivarinninniennens 18 x The Overwhelming Federal Foreign Policy Interest.................... 22 4 Garamendi Expressly Rejected Many of Petitioners’ Specific Attacks on the PE Sica datcastitsaicotnvtediiniictinasanssitenteesi 23 II. Alternative Grounds for Dismissal Make Grant of Certiorari Inappropriate ...................::ceeee 25 A. Applying California Law Would VERN SHUT FIND incitintictvesecicvetsvivsvornenets 26 3 Due Process Requires Significant Contacts Between California and the Conduct It i icsenisitdiaeiienseelesnianteaiecsieiinidinenes 26 2. The Presence Today of Some Petitioners and Respondents in California Does Not Satisfy Be i aesticennineniasenncthiaianensinaie 27 3. Calling the Statute “Procedural” Does Not Cure the Due Process Violation............... 28 B. Petitioners’ Claims Are Precluded by Japan’s Treaties with Korea and China.......30 c. Petitioners’ Claims Are Nonjusticiable....... 30 Conclusion ............ Ne a 31 Ip ata 8 -Vii- TABLE OF AUTHORITIES Page Cases Allstate Ins. Co. v. Hague, Sa ea Pe Ce Pita intinintccchceieintaitacheninddaiiininetiiic 26, 27 Am. Ins. Ass’n v. Garamendi, a ie Sree et Pe TE cicisireneasiehivetinidhabisinnietncttiintin passim Baker v. Carr, es EE iinet eincilatciianaaielarsiiiliniintiaiadenniial 30 Boyle v. United Techs. Corp., ee RAs INTE sneisiitiiihiisnptisndituicebniiineadaoubtiicacibane ef ae Burger-Fischer v. Degussa AG, FF. BO. 20 Be Id. FFG) esiscevesssccninesconsnrxinicsnnsis 31 Crosby v. Nat'l Foreign Trade Council, Pg ee ner, Sa 14 n.13, 17, 19-20 Deutsch v. Turner Corp., ; No. CV 00-4405 SVW (AJ WX), 2000 WL 33957691, estes aie CRE. aay DI ettinsestiniorsrinneenncnnsducsantantioines 11n.12 English v. Gen. Elec. Co., ls Fee ee idiisesbareiesiitinbaiatiiaabassadabsnscascenei 14n.13 Franchise Tax Bd. v. Hyatt, 2 8 SF ___, a Er ee re EE 27 Gerling Global Reins. Corp. v. Low, . Ee Fe ee es BE ici ttsntctininsennvainavenionss 11, 23 - Vili - TABLE OF AUTHORITIES (continued) Page Gerling Global Reins. Corp. v. Nelson, 123 F. Supp. 2d 1298 (N.D. Fla. 2000), aff'd, 267 F.3d Se 8 Fie Gels PIE Bi icesicspniichenauicdcieiniaigueancseaanntn 28 n.19 Helfand v. Gerson, BGS Fe Fre CGE. Ca cecescstiiventeercieniinsiinteseniconsioiatel 28 Joo v. Japan, Sak Os Oe Tes GE, FED srsricsiercienibacnsamnpninemnianinn 20 Landgraf v. USI Film Prods., SE 8 EE ee itininiesineicicenienannnatiloan 29 Phillips Petroleum Co. v. Shutts, Te i. FP Ce RED iicntitititigtiicicnaiamininainee 18, 26-27, 28 Stewart v. Kahn, Fe he I Ce iets vitiictinticeussecuiiniianeetbinninuilamiian 15 Stogner v. California, Se i hs I I ciscnenessirinccnnictneieeicinentoiad ennai 29 Sumitomo Shoji Am., Inc. v. Avagliano, SST VID... EFS CE tecich vers sstinerssieticinnipaninictionbiaitias 19 n.16 Taiheiyo Cement Co. v. Superior Court (Jeong), OBOE S258 Te BED tisiirnteitivetinmininniians 29 n.20 Ware v. Hylton, BUA Fa OS FI incrisninvvinttiinncideinsomniniiameaian 15,19 | - 1X - : TABLE OF AUTHORITIES (continued) Page Zschernig v. Miller, ee aint cacti ciceneenansvcenscerecves 12, 13, 16 Constitutional Provisions, Statutes, and Rules U.S. Const. art. I, LS ET 4 Ca nsccscenccccesess 4,17 U.S. Const. art II, SMe RAE oe ee SN ainciiienrieveervece 3,17 Cal. Civ. Proc. Code LSS passim EEN ESE 23, 24 Caen ee eee csnccccngees 29 Cal. Ins. Code §§ 13800-13807 ............ eee eeeeeeeeeeeeee passim LSD 29 n.20 Treaties Agreement on the Settlement of Probiems Concerning Property and Claims and on Economic Cooperation, Japan-Republic of Korea, June 22, 1965, Neen ce ceeresesersccens 4,6, 9, 21 Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China, Be: ae Re tinindineirinsnrnecrsrveceee 4, 6,9, 21, 22 -X- TABLE OF AUTHORITIES (continued) Page Treaty of Peace and Friendship Between Japan and the People’s Republic of China, Aug. 18, 1978 ............... 5, 6, 9, 21, 22 Treaty of Peace Between China and Japan, Apr. 28, 1952, 38 U.N.T.S. ORI so.ssksnsciesicasibioidictabainp ess ddieataeinaduleaiatsaaaie 4,6, 9,21, 22 Treaty of Peace with Japan (Allied Treaty), . Sap. ©, ESSE, FB. FIG sccnictisevvesiocreveasnvcinesaenrnin passim Other Authorities The Federalist No. 3 (John Jay) ..................cssesssssssenes 16n.15 IN THE Supreme Court of the Gnited States Do GUEN OH, ET AL., Petitioners, Vi MITSUI & Co., LTD., ET AL., Respondents. ZHENHUAN MaA, ET AL., Petitioners, Vi KAJIMA CORPORATION, ET AL., : Respondents. RESPONDENTS’ BRIEF IN OPPOSITION This Court should deny the Oh and Ma petitions for a writ of certiorari.’ The judgment of the U.S. Court of Appeals for the Ninth Circuit correctly holds that a California statute creating a cause of action for conduct of Japanese nationals in Asia during World War II is preempted ' Two certiorari petitions were filed by petitioners in seven cases. Petition 02-1773 (Oh) includes Kim v. Ishikawajima Harima Heavy Indus., Ltd., et al. (01-17197); Sin v. Mitsui & Co., Ltd, et al. (01- 17203); Choe v. Nippon Steel Corp., et al. (01-17211); and Oh, et al., v. Mitsui & Co. Ltd, et al. (01-17251). Petition 02-1778 (Ma) includes Mav. Kajima Corp., et al. (01-17201); Sung v. Mitsubishi Corp., et al. (01-17207); and Su, et al., v. Mitsubishi Corp., et al. (01-17243). me a by the core federal power to make and resolve war, which the United States “already exercised” when it “resolve[d] the war, including claims arising out of it,” in the multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169 (“Allied Treaty” or “Treaty”). See Appendix to Petition for Certiorari of the Oh petitioners (“Oh Pet. App.”) at 24a, 27a. The Ninth Circuit’s ruling is supported by the amicus curiae position of the United States below.” The Oh and Ma petitions rely on a decision of a different Ninth Circuit panel, which this Court reversed in American Insurance Ass'n v. Garamendi, 123 S. Ct. 2374 (2003) just three weeks after the petitions were filed. Garamendi held another World War II-related California statute to be preempted under the foreign affairs doctrine by virtue of Executive agreements aimed at resolving claims arising out of World War II in Europe. Here the federal interest — the exercise of the war powers through a peace treaty — is even stronger than in Garamendi, and is in direct conflict with the state statute, whose only purpose is “to redress wrongs committed in the course of the Second World War.” Oh Pet. App. at 23a. As the Ninth Circuit recognized in distinguishing its own earlier decision, which was subsequently reversed in Garamendi, these factors make this a clear case for foreign affairs preemption. No conflict exists among the U.S. Courts of Appeal or state courts of last resort with respect to the foreign affairs preemption issue raised by the petitions. The statute, section 354.6 of the California Code of Civil Procedure, is also invalid for other reasons not reached by the Ninth Circuit. Among these are California’s lack of legislative jurisdiction to create a cause of action for events ? The Brief for Amicus Curiae the United States of America, filed with the Ninth Circuit on June 6, 2002, appears at respondents’ Appendix F. o that occurred beyond its borders, on behalf of persons such as petitioners who, at the time of the events, were all foreign nationals having no ties to California or the United States. Petitioners had no right to sue in U.S. courts a half century ago and they have none now. The petitions should be denied. Opinions Below ~ The pertinent opinion of the Court of Appeals is that reported.at 324 F.3d 692 (9th Cir. 2003) and not, as the Oh petition asserts, the amended and superseded opinion reported at 317 F.3d 1005 (9th Cir. 2003). Oh Pet. at 1. The version of the opinion attached to the Oh petition is, however, the correct one. Pertinent Constitutional Provisions, Treaties and Statutes Constitution of the United States ~_ The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States .... He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present CONCUr; ....: U.S. Const. art. II, § 2, cls. 1, 2. The Congress shall have Power To... provide for the common Defense . . .; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; athe To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies . . .; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Ferces .. . . U.S. Const. art. I, § 8, cls. 1, 10-14. No State shall enter into any Treaty, Alliance, or Confederation; [or] grant Letters of . Marque and Reprisal... . No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with ... a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. U.S. Const. art. I, § 10, cls. 1, 3. Treaties The Allied Treaty appears at respondents’ Appendix A. The Agreement on the Settlement of Problems Concerning Property and Claims and on Economic Cooperation, Japan-Republic of Korea, June22, 1965, 583 U.N.T.S. 258 (“Japan-Korea Treaty”), appears at respondents’ Appendix B. The Treaty of Peace Between China and Japan, Apr. 28, 1952, 38 U.N.T.S. 1858 (“Japan-ROC Treaty”), appears at respondents’ Appendix C. The Joint Communiqué of the Government of Japan and the Government of the People’s Republic of China, Sept. 29, + 1972 (“Joint Communiqué”), appears at respondents’ Appendix D. The Treaty of Peace and Friendship Between Japan and the People’s Republic of China, Aug. 18, 1978 (“Japan-PRC Treaty”), appears at respondents’ Appendix E. Statutes Section 354.6 of the California Code of Civil Procedure is set forth in full in the Ninth Circuit’s opinion. See Oh Pet. App. at 10a-12a. Statement of the Case Petitioners and the classes they claim to represent’ were all foreign nationals and nonresidents of the United States at all relevant times.* All rely on section 354.6 of the California Code of Civil Procedure, enacted in 1999, which creates a cause of action for persons aliegedly forced to labor during World War II by, or in areas occupied by, “the Nazi > No class has been certified; putative class members allegedly number in the “thousands” or “hundreds of thousands.” ER 7 (Kim Complaint); ER 39 (Choe Complaint); ER 94; (Sin Complaint); ER 120 (Oh Complaint); ER 75 (Sung Complaint); ER 151 (Su Complaint); ER 245 (Ma Complaint). “ER” refers to the Excerpts of Record filed jointly in the U.S. Court of Appeals for the Ninth Circuit by the Oh and Ma groups of petitioners. “SER” refers to the Supplemental Excerpts of Record filed jointly in the Ninth Circuit in the Oh and Ma cases by respondents. * Although the Oh petitioners generally are referred to as “Koreans” ‘in this brief, they actually were subjects of Japan at all relevant times; Japan annexed Korea in 1910, and Korea became independent only after World WarlII. ER11 (Kim Complaint); ER 43 (Choe Complaint); ER 123 (Oh Complaint). The Ma petitioners were Chinese nationals at all relevant times. ER 68-69 (Sung Complaint); ER 143-45 (Su Complaint); ER 237-39 (Ma Complaint). she regime or its allies,” which, petitioners allege, include Japan.” A. Background Because petitioners’ claims are bound up in the prosecution and conclusion of World War II in Asia, it is essential (as the courts below recognized) to understand the foreign policy that the United States formulated, incorporated into the Treaty and persuaded 47 other Allied Nations to adopt. Of special importance are the Treaty’s requirements that claims of Korean nationals be resolved, not by litigation, but through “special arrangements” between the governments of Japan and Korea, art. 4(a) (which eventuated in the Japan-Korea treaty), and that Japan conclude treaties with Korea and China on “substantially the same terms” as the Allied Treaty, including the latter’s resolution of war-related claims, art. 26 (which eventuated, in the case of China, in the Japan-ROC Treaty, the Joint Communiqué and the Japan-PRC Treaty). See App. A at 3a, 19a-20a. The United States viewed a “free, prosperous and democratic Japan” as “an important stabilizing influence in the Far East” in the face of “mount[ing] international tensions” in that region. SER 545-46 (S. Exec. Rep. No. 82-2). Convinced that peace would be jeopardized “if the treaty validated, or kept contingently alive, monetary reparation claims against Japan,” the United States convinced its Allies that “it is our duty not to dwell on the past, but to turn our eyes toward the future.” SER 304, 309 (Record of Proceedings of the Conference for the Conclusion 5 Respondents are Japanese companies and certain of their contemporary U.S. subsidiaries. The latter are sued not for their own acts, but for the alleged acts of their Japanese parents — in most cases for acts of purported predecessors of their parents. See, e.g., ER 36 (Choe Complaint); ER 118 (Oh Complaint); ER 71 (Sung Complaint); ER 147- 48 (Su Complaint); ER 239-40 (Ma Complaint). = and Signature of the Treaty of Peace with Japan (1951) (“Proceedings”)). The Treaty’s reparations provisions were premised on the recognition that it “would have been a short sighted policy and would certainly have laid the foundation of a lasting resentment” to leave Japan and its nationals open to future war-related claims. SER 311 (Proceedings). Consistent with the well-settled principle that “reparations for war losses is a ... matter to be settled between governments” and “‘it is the . responsibility of each government to provide such compensation for persons under its protection as that government deems fair and equitable .. . out of reparations that may be received from Japan or from other sources,” SER 556 (S. Exec. Rep. No. 82-2), the United States negotiated and crafted a Treaty that conclusively provided for resolution of all war-related claims.® Allied signatories of the Treaty were accorded specified reparations and waived all further claims of their own and their nationals against Japan and its nationals (and vice versa). App. A at 10a-17a (arts. 14-19); see generally Brief of Respondents in Opposition to the petitions for a writ of certiorari filed in Tenney, et al., v. Mitsui & Co., Ltd, et al. (02-1776) and Saldajeno, et al., v. Ishihara Sangyo Kaisha Lid., et al. (02-1784) (“Signatory Brief”). The funds to pay these reparations came principally from assets of Japanese businesses and individuals located in Allied and neutral nations. App. A at 10a-15a-(arts. 14(a), 16); see generally Signatory Brief. Although Korea could not sign the Treaty “because [it] was never at war with Japan,” the Treaty “in many ways, treat[ed] Korea like an Allied Power,” “obtain[ing] for Korea Japan’s formal recognition of Korea’s independence, and * Emphasis in quotations is added throughout this brief, unless otherwise specified. a ofa Japan’s consent to the vesting in the Republic of Korea, of the very considerable Japanese property in Korea,” and placing Korea “on a parity with the Allied powers as regards... commercial arrangements.” SER 305 (Proceedings). Because of disagreement among the Allies as to which “China” should sign the Treaty — Nationalist or Communist — neither did. SER 305 (Proceedings). Nevertheless, “[t]he Treaty preserve[d], in full, the rights of China as one of the Allied Victors,” by, inter alia, awarding China all Japanese property in Chinese territory. /d. at SER 306. At the same time, the United States insisted that China’s nonparticipation not defeat the policy of achieving final resolution of all war claims; “it would ... be wrong, cruel and stupid to penalize Japan because there is civil war in China and international disagreement regarding China.” Jd. at SER 305. While acknowledging that nonsignatory nations, particularly Korea and China, had suffered enormously from “Japanese aggression,” SER 304,305 (Proceedings), the United States concluded that requiring reparations from Japan “in any proportion commensurate with the claims of the injured countries and their nationals” would be “contrary to the basic purposes and policy of the free nations, the Allied Powers, and the United States in particular.” SER 555 (S. Exec. Rep. No. 82-2). Peace “would be impossible if the Treaty kept alive the right[s] of the [injured countries] to demand monetary reparations payments.” SER 424 (Memo, Sec’y of State to President, Aug. 7, 1951). Accordingly, article 26 of the Treaty obligated Japan to conclude separate treaties with Korea and China “on the same or substantially the same terms” as the Allied Treaty, SER 289-90, including the latter’s reparations provisions. See App. A at 10a-13a (art. 14); see generally Signatory Brief. Article 4(a) also directed that “claims. .. of [Korea] and [its] residents against Japan and its nationals, shall be the subject of special arrangements between Japan and -9- [Korea],” App.A at 3a, thus mandating that Korean nationals’ claims “be resolved through inter-governmental agreements rather than litigation.” App. F at 54a. Faithful to the Allied Treaty, Japan negotiated the Korea- Japan Treaty and, consistent with U.S. foreign policy, three agreements with China: one with the Republic of China (the Japan-ROC Treaty) and, later, two with the People’s Republic of China (the Joint Communiqué and the Japan- PRC Treaty). As discussed in sections I.B.2. and II.B. infra, these treaties also address reparations and independently preclude adjudication of petitioners’ claims. B. Petitioners’ Allegations Petitioners admittedly have never had any contact with California, except for a handful who emigrated after World War II. None of the conduct underlying their claims occurred in California, or even in the United States. Petitioners allege that their forced labor was in furtherance of the Japanese war effort.’ Several of the complaints’ details attest to the Japanese Government’s deep involvement in the forced labor regime, e.g., through laws and government directives requiring companies to use forced labor to achieve Japan’s war aims,’ and through the use of police and other government agencies to dragoon forced laborers.? Some ” See, e.g, ER34 (“To assist in the war effort the Japanese government directed that Korean Nationals be forcibly deported and put to work by Japanese industry.”); see also ER 36 § 10, 52 4 60; ER 2, 4; ER 67; ER 93; ER 123; ER 142; ER 235-36. See, e.g., ER 43-44 (“National General Mobilization Law directed . authorities to ‘draft Imperial subjects and make them serve the purposes of general mobilization.””); ER 12 (“[T]he Japanese Cabinet . . . prescribed ... numbers of Koreans ... deported for forced and slave labor and detailed allocations [of laborers] to particular industries.”). See, e.g., ER 98 (“[Plaintiff] was raided by a policeman and an officer of the [regional] office while asleep in [his] home,... handcuffed [,] . . . taken to a gathering place... , and was transported to Japan forcibly.”); ER 12 (“Japanese Welfare Ministry issued a directive (continued ...) \ _' complaints allege that respondents’ predecessors “turned over” petitioners’ wages to the Japanese Government, which never remitted the money to petitioners. '° C. Proceedings in the District Court The Judicial Panel on Multidistrict Litigation consolidated petitioners’ cases in the U.S. District Court for the Northern District of California, along with 21 others based on section 354.6. SER 16-23, 265-67, 578. That court dismissed all 28 cases, holding section 354.6 unconstitutional “because it infringes on the exclusive foreign affairs power of the United States.”'! Oh Pet. App. at 52a, 73a. The District Court had the benefit of a Statement of Interest of the United States, explaining the Treaty’s negotiating and legislative history, U.S. foreign policy underlying it, and the Treaty’s status as the cornerstone of U.S. Far Eastern policy over the last half century. The court was also provided with a Note Verbale from the Government of Japan to the United States. Both governments explained that section 354.6 would frustrate the operation of the Treaty — which contemplated resolution of all war claims by “state-to-state negotiations’-— and would “jeopardize relations between the United States and Japan and Japan and its Asian neighbors.” SER 517, 520 (U.S. Statement of Interest); see SER 525 (Note Verbale). (... continued) that confirmed that the forcible deportation of Koreans was systematic and calculated.”). '0 See ER 10; ER 42; ER 97. - '! The District Court also ruled that petitioners’ other claims were all time-barred. Oh Pet. App. at 82a, 84a. That ruling, affirmed by the Ninth Circuit, id. at 32a-35a, is not challenged in the certiorari petitions. ‘eesti D. The Court of Appeals Decision The Ninth Circuit affirmed the District Court’s judgments 7 in all 28 consolidated cases.'? Like the District Court, the Ninth Circuit had the benefit of the views of the United States, which supplemented its Statement of Interest with an i amicus curiae brief and presented oral argument on the Treaty and U.S. foreign policy issues. In its analysis, the panel expressly distinguished an carlier decision of a different panel — later reversed by this Court in Garamendi— in Gerling Global Reins. Corp. v. Low, 240 F.3d 739 (9th Cir. 2001). Low involved another World War II statute enacted by California, the Holocaust Victim Insurance Relief Act, Cal. Ins. Code §§ 13800-13807 (“HVIRA”). HVIRA, unlike Section 354.6, did not create a private right of action; rather, it required insurers\ doing business in California to provide disclosure about policies sold to persons in Europe, which were in effect between 1920 and 1945. The panel deciding the present tases ! recognized that the basis for preemption is much stronger for section 354.6 than for HVIRA. While section 354.6 has no purpose except “to provide a monetary remedy for decades- old wartime wrongs,” Oh Pet. App. at 3la, HVIRA /was a “forward-looking regulatory statute” that “merely” required disclosure and at least purported to safeguard contemporary consumer interests. Jd. In assessing where the line between federal and state power is to be drawn in the context of a law to remedy war- related injuries, the Ninth Circuit considered that, of the eleven clauses of the Constitution dealing with the foreign affairs powers of the President and Congress, seven 2 In addition, the Ninth Circuit affirmed dismissal of Deutsch v. Turner Corp., No. CV 00-4405 SVW (AJWX), 2000 WL 33957691 (C.D. Cal. Aug. 25, 2000), which alleged World War II wrongs by German, not Japanese corporations. No certiorari petition was filed in Deutsch. 12. enumerate war powers, including “settling war.” Oh Pet. App. at 2la. Conversely, “[m]Jost of the Constitution’s express limitations on States’ foreign affairs powers also concern war.” Jd. The court found that the power “to resolve war, including the power to establish the procedure for resolving war claims” is “part of the inner core” of the “foreign relations power that is denied to the states.” Oh Pet. App. at 20a-21la. It also noted that the state statute struck down by this Court in Zschernig v. Miller, 389 U.S. 429 (1968), although not by its terms war-related, “was seen by a Court operating at the height of the Cold War as a potential provocation to foreign powers.” Oh Pet. App. at 21a-22a. The Ninth Circuit went on to note that the federal government had “already exercised its own exclusive authority to resolve” World War II, “including claims arising out of it,” by the ratification of the Allied Treaty. Oh Pet. App. at 24a, 27a. As the parties agreed, that resolution neither created “a private right of action against Japan or its nationals” nor authorized “states of the United States to create such a right.” Oh Pet. App. at 27a. Because section 354.6 would “modify” that resolution, the court held that the statute was preempted. Oh Pet. App. at 27a-28a & n.14. This holding did not depend on the nationality of any particular plaintiff who might invoke section 354.6 in a US. court; accordingly, it was “immaterial” that petitioners were citizens of nations that did not sign the Treaty. Oh Pet. App. at 28a n.14. Petitioners requested rehearing and rehearing en banc, which were unanimously denied on March 6, 2003. No active judge requested a vote on rehearing en banc, although two of the Low panel members are active judges. Oh Pet. App. at 41a. Nevertheless, the Ninth Circuit held issuance of its mandate pending this Court’s decision in Garamendi. After this Court decided Garamendi on June 23, 2003, the Ma petitioners asked the Ninth Circuit to reconsider its pa abe A the a sin ~ decision. The Ninth Circuit denied the request for reconsideration-and issued its mandate on July 30, 2003. Argument I. Because the Ninth Circuit’s Decision Accords with Garamendi, the Petitions Should Be Denied The Ninth Circuit’s ‘decision is fully consistent with Garamendi — indeed, had the Ninth Circuit not invalidated section 354.6, Garamendi would require __ reversal. Preemption is required under either, or both, preemption theories discussed in Garamendi- the “field” theory Garamendi identified as the basis of the majority opinion in Zschernig and the “conflict” theory of Justice Harlan’s Zschernig concurrence. Garamendi, 123 S. Ct. at 2388-89. As Garamendi explained, under the “field” approach, all “state action with more than incidental effect on foreign affairs is preempted, even absent any affirmative federal activity in the subject area of the law, and hence without any showing of conflict.” Id. at 2388 (citing Zschernig, 389 U.S. at 441; Hines v. Davidowitz, 312 U.S. 52, 63 (1941); United States v. Belmont, 301 U.S. 324, 331 (1937); and United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316-19 (1936)). “Conflict” preemption requires an actual conflict between state law and a federal foreign policy interest. Garamendi, 123 S. Ct. at 2389. Garamendi found it unnecessary to make a “categorical choice” between the two theories; there was a “sufficiently clear conflict” between the federal policy and state law in that case to result in preemption. Jd. at 2389-90. The Court further observed that no such choice may be necessary in other cases, or, indeed ever, for the two theories “can be seen as complementary.” Jd at 2389 n.1l. Thus, “field preemption might be the appropriate doctrine” where a state “take[s] a position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility,” while “it might make good sense to require a «th. conflict” where “a state has acted within” its “‘traditional competence,’ but in a way that affects foreign relations.” Id. (quoting Zschernig, 389 U.S. at 459 (Harlan, J., concurring)). The Ninth Circuit also did not explicitly choose one preemption theory, nor did it need to.” As shown below, either theory could apply here and, under either analysis, section 354.6 is invalid. A. As Applied to Respondents, Section 354.6 Is Preempted Under the “Field” Theory Described in Garamendi 1. This Case Presents Precisely the Circumstances That Make Field Preemption “the [A]ppropriate [D]octrine” Under Garamendi Garamendi teaches that field preemption may be “the appropriate doctrine” where astate acts in the area “of foreign policy with no serious claim to be addressing a traditional state responsibility.” 123 S.Ct. at 2389 n.11. Here California has fashioned its own war reparations cause of action and can make no “serious claim” that it is addressing a “traditional state responsibility” — not even one with the “tangential relation to present-day” regulatory objectives asserted (albeit unsuccessfully) to justify the statute struck down in Garamendi. Id. at 2394." '? This Court has previously held that the “categories of preemption are not ‘rigidly distinct.”” Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 373 n.6 (2000) (quoting English v. Gen. Elec. Co., 496 U.S. 72, 79 n.5 (1990)). “Indeed, field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre- empted field conflicts with Congress’ intent (either express or plainly implied) to exclude state regulation.” English, 496 U.S. at 79 n.5. '* In seeking rehearing of Garamendi, even California has stressed that “HVIRA is simply a disclosure statute that does not force the payment of any claim” and that the conduct that prompted it is the “present refusal of companies to disclose,” Am. Ins. Ass’n v. Garamendi, (continued ...) +, eo As the Ninth Circuit correctly recognized, section 354.6 permits suit “only” by “‘Second World War slave labor victims’” and ““Second Worid War forced labor victims.’” Oh Pet. App. at 23a (quoting § 354.6(b)). The “wrong-doers under the statute’-— “‘the Nazi regime, its allies and sympathizers, or enterprises transacting business in any of the areas occupied by or under control of the Nazi regime or its allies or sympathizers’” — were, “by definition, wartime enemies of the United States,” or at least “were operating in enemy territory . . . with the consent and for the benefit of our wartime enemy.” Jd. (quoting § 354.6(a)(1), (2)). By enacting section 354.6, California plainly sought “to create its own resolution to a major issue arising out of the war — a remedy for wartime acts that California’s legislature believed had never been fairly resolved.” Jd. Since this country’s founding, the law has been clear: resolution of war claims is for the federal government to address through treaties or other state-to-state agreements. Warev. Hylton, 3U.S. (Dall.) 199, 229-30 (1796) (compensation for losses sustained “during [a] war . . . [may] only be provided for by the treaty of peace” because “a treaty of peace abolishes the subject of the war..., [and alll violences, injuries or damages sustained by the government or people of either [belligerent] during the war, are buried in oblivion ... by the very treaty of peace”); see also Stewart v. Kahn, 78 U.S. 493, 506-07 (1870) (states cannot interfere with federal war- and peace-making powers, which include the power to “remedy the evils which have arisen from [war’s] rise and progress”). This principle is grounded, as the Ninth Circuit recognized, in the Constitution’s textual \ (... continued) No. 02-722, Pet. Reh. at 7— wholly unlike section 354.6. See also Garamendi, 123 S.Ct. at 2397 (Ginsberg, J., dissenting) (noting that “statutory provisions enabling the litigation of Holocaust era insurance claims” were “not at issue” there). « 16- commitment of war powers to the federal government, while withholding them from the states.'° The Ninth Circuit’s conclusion that the “power to establish the procedure for resolving war claims” is “part of the inner core” of the “foreign relations power that is denied to the states,” Oh Pet. App. at 20a-21a, seems to anticipate Garamendi’s observation that “[v]indicating victims injured by acts and omissions of enemy corporations in wartime is... within the traditional subject matter of foreign policy in which the national, not state, interests are overriding.” Garamendi, 123 S. Ct. at 2390. Thus California’s attempt to provide its own war reparations law is surely subject to preemption under Garamendi. 2. Field Preemption Is Particularly Appropriate Where, as Here, the Federal Government Has Exercised Its Treaty Powers Under the field preemption theory of the Zschernig majority opinion, state action may be preempted “even absent any affirmative federal activity’ in the field. Garamendi, 123 S. Ct. at 2388; see also Zschernig, 389 U.S. at 441 (preemption found in the “absence of a treaty,” statute or executive agreement). Here, unlike Zschernig, there has been intense federal activity in the very area of foreign affairs in which the California statute purports to operate. As the Ninth Circuit recognized, “the United States has already exercised its own exclusive authority to resolve the war, including claims arising out of it.” Oh Pet. App. at 24a, 27a. The fact that the United States’ exercise of its foreign affairs authority culminated in the Treaty — as opposed to some other “affirmative federal activity’-— provides additional support for finding preemption here. Whatever 'S See also The Federalist No. 3 (“[NJot only fewer just causes of war will be given by the national government, but it will also be more in their power to accommodate and settle them amicably.”). «3%. may be said regarding executive agreements or other exercises of foreign affairs powers, the federal treaty power “enjoy[s] . . . textual detail” in the Constitution. Garamendi, 123 S. Ct. at 2386; see U.S. Const. art. II, § 2, cl. 2. Indeed, the power to make treaties is expressly denied to the states. Id. art. I, § 10, cl. 1. Furthermore, federal law embodied in a treaty reflects the consensus of Congress and the Executive regarding foreign policy. Cf Crosby, 530 U.S. at 375 (noting that “‘[w]hen the President acts [in foreign affairs] pursuant to an . . . authorization from Congress, his authority is at its maximum”) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)); Garamendi, 123 S. Ct. at 2400n.4 (Ginsburg, J., dissenting) (criticizing the majority’s reliance on Crosby because “Crosby was a statutory preemption case”). Here, both the Executive and Congress have acted to occupy the field of war reparations against Japan, through a longstanding policy embodied in the Treaty, leaving California no possible ambit to enact section 354.6. B. Particularly As Applied to Respondents, Section 354.6 Is Equally Preempted Under the “Conflict” Theory Described in Garamendi Even if section 354.6 could somehow be viewed as addressing issues “within areas of . . . traditional state responsibility,” so as to warrant application of the “conflict” preemption standard articulated in Garamendi, the California Statute would still be preempted if applied to respondents. As articulated in Garamendi, the “clarity or substantiality” of a conflict “var[ies] with the strength or the traditional importance of the state concern asserted,” id. at 2389 n.11, and, as appropriate, “the strength of the federal foreign policy interest.” Jd. Here, California’s interest is extraordinarily weak, the conflict is acute, and the federal interest is overwhelming. -18- — 1. The State’s Interest Is Nonexistent California’s interest in enacting section 354.6 is considerably weaker than it was even with respect to HVIRA, because here the statute possesses neither a state regulatory purpose nor any colorable claim to having been authorized by federal legislation. Cf Garamendi, 123 S. Ct. at 2393 (discussing California’s argument that Congress authorized laws like HVIRA in the McCarran-Ferguson Act and the U.S. Holocaust Assets Commission Act); see also supra n.14. Moreover, section 354.6 shares with HVIRA the fatal flaw that the conduct California seeks to govern — namely, conduct by Japan and Japanese nationals towards Korean and Chinese nationals in Asia during World War II — is wholly divorced from California. Garamendi, 123 S. Ct. at 2393 (citing Phillips Petroleum Co.v. Shutts, 472 U.S. 797 (1985) and Allstate Ins. Co. v. Hague, 449 US. 302 (1981)); see infra section II.A. Even more attenuated than its interest in enacting section 354.6 is California’s interest in having the statute applied in these cases. At best, California might have an interest in the welfare of Korean and Chinese nationals who moved to the state after World War II, but Garamendi explicitly held that this factor should be accorded ““‘little or no significance.’” Id. (quoting Shutts, 472 U.S. at 820). Furthermore, as a matter of fact, only a few of the hundreds of thousands of putative class members in these cases have claimed California residency. ER 3 (Kim Complaint); ER 68 (Sung Complaint). Thus no cognizable state interest is at stake in these cases. 2. The Conflict with the Allied Treaty Given the lack of state interest, only a minimal conflict is required for “conflict” preemption to exist under Garamendi. Id. at 2389 (strength of state interest determines “how serious a conflict must be shown before declaring the state ~ - law preempted”). In this case, though, the conflict is clear and direct. “The Treaty reflects the United States government’s foreign policy determination that all war-related claims against Japan and its nationals — including private claims and including the claims of those whose governments were not party to the Treaty — should be resolved by government-to- government agreement rather than litigation.” App.F at 42a-43a, 49a, 54a.'° This approach is in harmony with well- settled international and U.S. legal principles. See, e.g., Ware, 3 U.S. at 229 (Chase, J.). With respect to Korea, U.S. law and policy is codified in article 4(a) of the Treaty, which commits the Korean petitioners’ claims to resolution through “special arrangements” between Japan and Korea and leaves no room for any other U.S. law remedy. App. A at 3a. Article 26 of the Treaty obligated Japan to conclude separate treaties with China as well as Korea “on the same or substantially the same terms” as the Allied Treaty, including the latter’s claims resolution provisions. App. A at 19a-20a. Private lawsuits in U.S. courts under California (or even federal) law are, of course, the antithesis of the diplomatic resolution mandated by the Treaty. See App. F at 53a-55a (“The Treaty of Peace . . . provides that the claims of Korea and China, and those of their nationals, will be resolved through inter- governmental agreements rather than through litigation.”). Japan shares this view. SER 525 (Japan’s Note Verbale) (“[T]hese issues should not be adjudicated in the courts in the United States.”). Allowing claims to proceed in U.S. courts would therefore “undermine[] the intended purpose and ‘natural effect’” of the Treaty. See Crosby, 530 U.S. at '© “(T]he meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184-85 (1982). «Ss, 373 (finding conflict preemption); App. F at 49a-50a (noting the “conflict[]” between section 354.6 and the Treaty), 55a (stating that Korean and Chinese plaintiffs “may not, consistent with the United States’ policy adopted in the Treaty, pursue their claims in the courts of the United States.”). Very recently, a unanimous panel of the U.S. Court of Appeals for the District of Columbia Circuit found that the Treaty foreclosed war-related claims by Korean and Chinese nationals in U.S. courts. In Joo v. Japan, 332 F.3d 679 (D.C. Cir. 2003), the court considered whether the commercial exception to the Foreign Sovereign Immunities Act could be applied retroactively to World War II events; the court concluded that it could not, in part because “the [Allied] Treaty manifests the parties’ intent to resolve matters arising from World War II without involving the courts of the United States (or of any signatory nation).” Jd. at 684-85. The court found that the Treaty “expressed a clear [U.S.] policy of resolving the claims of Korean and Chinese nationals through government-to-government negotiation.” Jd. at 685.!’ Indeed, as evidence of such subsequent negotiations, the Joo court cited the Japan-Korea Treaty and the Japan- ROC Treaty. Id.; see also App. B and App. C. The certiorari petitions never mention the Treaty provisions directed to resolution of war claims among Japan, Korea and China, confining their treatment of the Treaty to stating that Korea and China were not signatories. The issue, however, is not whether Korea or China were signatories; it is that the Treaty “establish[es] the law of the United States '7 The court pointed to article 14 of the Treaty, which reciprocally waived all claims of Allied and Japanese nationals, and noted that “it would be odd indeed for the United States, on the one hand, to waive all claims of its nationals against Japan and, on the other hand, to allow non- [signatory] nationals to proceed against Japan in its courts.” Joo, 332 F.3d at 685. x, with respect to the war-related claims of Korean and Chinese nationals.” App. F at 54a. That law — mandating resolution through diplomacy — binds U.S. courts, including state courts and state legislatures; no other or additional remedy can be supplied under United States law. One result of the diplomacy mandated by the Treaty was the Japan-Korea Treaty, which is “part and parcel of the framework created by the United States in 1951.” SER 512 (U.S. Statement of Interest). That treaty independently precludes adjudication of petitioners’ claims, for through it Japan paid Korea a half billion dollars in grants and loans, App. B at 21a-22a (art. I), and the parties “settled completely and finally” the “problem concerning property, rights and interests of the two Contracting Parties and their nationals” as well as “claims between the Contracting Parties and their nationals” (including juridical persons), App.B at 23a (art. II, § 1). The claims resolved “include[d]” — but are not restricted to — “those provided for in” article 4 of the Allied Treaty— ie, reparations— and “claims that... Korean natural persons have against... Japanese nationals such as... Claims by Koreans’ against Japanese.. corporations.” SER 370 (Agreed Minutes § 2(g)); SER 320- 22 (Republic of Korea, White Paper on Korea-Japan Talks (1965)); SER 346-47 (Outline of the “Eight Items” — Claims Made by Korea Against Japan). Other products of the Treaty are the Japan-ROC and Japan-PRC treaties and the Joint Communiqué, which, separately and together, reciprocally settled all war claims of Japanese and Chinese nationals. In negotiating and signing these treaties, Japan complied not only with its obligations under the Allied Treaty, but with the admonition of the United States that Japan “pursue foreign policies in Asia which were generally compatible with those of the United States, particularly in relation to China.” SER 376-77. The Japan-ROC Treaty literally incorporated by reference the “relevant provisions” of the Allied Treaty as the rule by 2. which “any problem” between the signatories resulting from “the existence of a state of war” “shall be settled” (unless the Japan-ROC Treaty, or its supplementary documents, provided otherwise). App.C at 29a (art. XI). Having concluded a treaty with the only government of China recognized by the United States— the ROC- Japan reasonably took the position that its treaty with the ROC resolved all war claims involving China. Nevertheless, in 1972, Japan responded to the United States’ recognition of the PRC by opening negotiations to “normalize” its own rejations with the PRC, SER 409-410, an “opening to China” that led to the Joint Communiqué in which Japan and the PRC agreed to language, carefully drafted as a political compromise to preserve the dignity of both sides, whereby the PRC declared “that in the interest of the friendship between the Chinese and the Japanese peoples,” the PRC “renounces its demand for war reparation from Japan.” App. D at 33a (art. 5). The Japan-PRC Treaty, App. E, incorporated and reaffirmed the terms of the Joint Communiqué. Thus the fruit of the Allied Treaty’s resolution of petitioners’ claims via diplomacy resulted in other, nonjudicial resolutions of those claims under the laws of petitioners’ own countries." 3. The Overwhelming Federal Foreign Policy Interest The resolution of World War II-era reparations claims against Japanese companies is an “area of uniquely federal interest” for all of the reasons discussed above with respect to the appropriateness of a “field” preemption analysis. Garamendi, 123 S. Ct. at 2389 n.11; Boyle v. United Techs. '® As noted above, however, petitioners would be unable to proceed in U.S. courts even if the agreements between Japan and Korea and Japan and China permitted lawsuits. U.S. courts are bound by “the law of the United States,” which mandates a nonjudicial resolution of “the war- related claims of Korean and Chinese nationals.” App. F. at 54a. Oe. Corp., 487 U.S. 500, 507-08 (1987). The Ninth Circuit carefully and correctly assessed this overwhelming federal interest, which provides a further reason that the balance of factors leads inexorably to preemption in these cases, even under a “conflict” theory analysis. C. Garamendi Expressly Rejected Many of Petitioners’ Specific Attacks on the Decision Below In addition to validating the Ninth Circuit’s foreign affairs preemption analysis, Garamendi addressed and rejected several of petitioners’ arguments based on their (incorrect) assumption that Low was decided correctly. Both petitions insist that foreign affairs preemption does not apply to suits against “private” parties. Oh Pet. at 2, 16, 18, 20; Ma Pet. at 18 and 21. Garamendi, however, flatly rejected any “distinction” between companies and governments of “formerty belligerent states.” 123 S. Ct. at 2387. Observing that “untangling government policy from private initiative during war time is often so hard that diplomatic action settling claims against private parties may well be just as essential! in the aftermath of hostilities as diplomacy to settle claims against foreign governments,” this Court found that the attempted distinction simply “does not matter”. Jd. What was true in Garamendi is doubly so here, where petitioners have alleged that the Japanese government ordered their forced labor. See, e.g., ER34 (Choe complaint); ER 97, 98-99 (Sin complaint); ER 123-24 (Oh complaint). Indeed, as the Ninth Circuit recognized, the only suits permitted by section 354.6 are against “‘enterprises’” that, “if not themselves our wartime enemies, were operating in enemy territory and presumably — no party disputes this — with the consent and for the benefit of our wartime enemy.” Oh Pet. App. at 23a (quoting § 354.6(a)(1), (2)). The Oh petitioners also make the odd argument that section 354.6 is not subject to preemption because it does “not focus on any single country.” Oh Pet. at 17. Not only The Constitution grants to Congress the authority “[t]o regulate Commerce with foreign Nations,” U.S. Const. Art. I, § 8, cl. 3, and “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” id, cl. 10. The Constitution also designates the President as the “Commander in Chief of the Army and Navy of the Sla Appendix F express prohibitions on the States’ activities in that sphere * reflect a general rule of exclusive federal authority over international relations. “Power over external affairs is not shared by the States; it is vested in the national government exclusively.” United States v. Pink, 315 U.S. 203, 233 (1942). See also Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (the Federal Government is entrusted “with full and exclusive responsibility for the conduct of affairs with foreign sovereignties”); United States v. Arjona, 120 U.S. 479, 487 (1887) (power to define and punish violations of the Law of Nations is “conferred by the constitution on the government of the United States exclusively”). In light of the “imperative[] * * * that federal power in the field affecting foreign relations be left entirely free from local interference,” Hines, 312 U.S. at 63, the Supreme Court has held that state “regulations must give way if they impair the effective exercise of the Nation’s foreign policy,” Zschernig v. Miller, 389 U.S. 429, 440 (1968). United States,” id, Art. II, § 2, cl. 1, and gives him the authority to “make Treaties” and “appoint Ambassadors” with the “Advice and Consent of the Senate,” id, cl. 2, and to “receive Ambassadors and other public Ministers,” id., § 3. The Constitution also confers upon Congress the authority “[t]o lay and collect * * * Duties, Imposts and Excises,” and “provide for the common Defence,” U.S. Const. Art. I, § 8, cl. 1, “[t]o establish a uniform Rule of Naturalization,” id., cl. 4, “[t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” id., cl. 11, “[t]o raise and support Armies,” id. cl. 12, “[t]o provide and maintain a Navy,” id. cl. 13, and to regulate “the land and naval forces,” id. cl. 14. > The Constitution provides that “[n]o State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal” or, without the consent of Congress, “lay any Imposts or Duties on Imports or Exports,” “keep Troops or Ships of War in time of Peace,” “enter into any Agreement or Compact * * * with a foreign Power,” or “engage in War, unless actually invaded.” U.S. Const. Art. 1, § 10. 52a Appendix F Because the conduct of foreign policy is committed to the Federal Government, and because of the unique concerns raised by state action in that arena, federal preemption of a state law concerning foreign affairs may be more readily inferred than in the domestic context where federal and state governments share regulatory authority. When the States act in an area in which federal interests predominate, “[tj/he conflict with federal policy need not be as sharp as that which must exist for ordinary pre- emption when Congress legislates in a field which the states have traditionally occupied.” Boyle v. United Technologies Corp., 487 U.S. 500, 507 (1988) (quotation omitted). “Preemption of a whole field * * * will be inferred where the field is one in which ‘the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Thus, when a State legislates in an area affecting foreign affairs, the courts are “more ready to conclude that a federal Act * * * supersede[s] state regulation.” Allen-Bradley Local No. 111] v. Wisconsin Employment Relations Bd, 315 U.S. 740, 749 (1942). Just as the Supreme Court is more willing to infer affirmative preemption when a state statute intrudes into the foreign policy arena, the Court has also made clear that a state law that directly implicates the conduct of foreign policy will be set aside even if there is no affirmative preemption. In Zschernig v. Miller, the Supreme Court made clear that a state pelicy that disturbs foreign relations must give way “even in [the] absence of a treaty” or federal statute. 389 U.S. at 441. See also Laurence H. Tribe, American Constitutional Law, § 4-5 at 656 (3d ed. 2000) (“all state action, whether or not consistent with current foreign policy, that distorts the allocation of responsibility to the national government for the conduct of American diplomacy is void as an unconstitutional 53a Appendix F infringement on an_ exclusively federal sphere of responsibility”). The California forced labor statute has far more than an “incidental or indirect effect in foreign countries.” Zschernig, 389 U.S. at 434-35. Rather, the State has deliberately undertaken the formulation of foreign policy in an area subject to international treaty obligations, adopting a strategy that directly impairs the accomplishment of federal policy and prevents the nation from speaking with one voice on a matter of international concern. Because the policy reflected in California’s forced labor Statute is in direct tension with the nation’s foreign policy expressed in the 1951 Treaty of Peace, the state statute “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of federal policy and is, thus, affirmatively preempted. Hines, 312 U.S. at 67; Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000). However, even if the Court were to conclude that the forced labor statute has not been affirmatively preempted, it is plain that the statute in design and effect impermissibly intrudes into the conduct of foreign affairs and is therefore beyond the authority of the State to enact. B. Federal Law Preempts California’s Forced Labor Statute, Which Stands As An Obstacle To Achieving The United States’ Foreign Policy Established In The 1951 Treaty Of Peace. The 1951 Treaty of Peace reflects the President and Senate’s considered judgment that all claims arising out of Japan and Japanese nationals’ conduct in the course of World War II, including claims between private individuals, should be resolved through inter-governmental negotiations. The Allied parties to the Treaty, including the United States, expressly “waive all * * * claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the 54a Appendix F course of the prosecution of the war.” Art. 14(a) (emphasis added). The Treaty of Peace likewise provides that the claims of Korea and China, and those of their nationals, will be resolved through inter-governmental agreements rather than litigation. While the Treaty may not be directly binding on Korea and China, who were not parties to the Treaty, the Treaty does establish the law of the United States with respect to the war-related claims of Korean and Chinese nationals. Indeed, it would be ironic to think that the United States foreclosed the war-related claims of its own nationals while leaving its courts open to litigating the claims of foreign nationals. As noted above, the Treaty of Peace both ensured for Korea and China the same benefit as the Allied parties had obtained for themselves and directed that war-related claims of Korear.: and Chinese, like those of Allied nationals, would be settle”, on a government-to-government basis. Japan was required to renounce its interests in Korea and China, and the Korean and Chinese authorities were allowed to seize and liquidate all Japanese assets within their territories — assets worth billions of dollars. See Art. 4(b) (Korea); Art. 10, 14(a)(2), 21 (China). In return, both Korea and China were expected to settle, as the Allied parties had, the war-related claims of themselves and their nationals against Japan and its nationals. See Art. 4(a) (“claims * * * of [Korean] authorities and residents against Japan and its nationals, shall be the subject of special arrangements between Japan and [Korean] authorities’’); Art. 26 (providing that Japan was to enter a peace treaty with China, settling the war “on the same or substantially the same terms as are provided for in the present Treaty” (emphasis added)). California’s forced labor statute runs directly contrary to the United States’ foreign policy of relegating the war-related claims of Korean and Chinese nationals to inter-governmental resolution. Whereas federal law provides that the claims of Korean and Chinese nationals, like those of Americans themselves, are to be resolved by government-to-government 55a Appendix F settlements, the California statute grants such claims a preferred Status, with uniquely favorable substantive and procedural rules. See, e.g., Cal. Code Civ. Pro. § 354.6(a)(3) (affixing damages in a manner to eliminate the effect of post-war inflation), § 354.6(b) (making corporations doing business in California liable for the debts of their Japanese affiliates, without regard to traditional principles of corporate identity), § 354.6(c) (setting aside generally-applicable statutes of limitations in favor of an 81-year limitations period). The district court mistakenly believed that the federal Treaty could preempt the California statute with respect to plaintiffs’ claims only if the Treaty itself actually resolved the Korean and Chinese claims. See Jn re World War II Era Japanese Forced Labor Litig., 164 F. Supp. 2d 1160, 1165-68 (N.D. Cal. 2001). Thus, the district court found it conclusive that the Treaty itself did not “waive the claims of the Korean and Chinese plaintiffs.” Id. at 1165. See also id. at 1168 (Treaty does not “control claims of individuals from non-signatory nations”). This misconceives the nature of both the Treaty and federal preemption. It is not necessary for the Treaty to finally resoive plaintiffs’ claim in order for the federal law to preempt California’s attempt to encourage litigation of those claims. It is sufficient that the Treaty establishes, as a matter of United States law, that plaintiffs’ claims are to be resolved by inter- governmental arrangemests, rather than litigation. It is irrelevant, therefore, whether, as a matter of Korean or Chinese law, plaintiffs could pursue their claims in the courts of those nations; they may not, consistent with the United States’ policy adopted in the Treaty, pursue their claims in the courts of the United States. The California statute plainly “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of the Treaty. Hines, 312 U.S. at 61; Crosby, 520 U.S. at 373-77 & n.10 (rejecting as “cramped,” Massachusetts’ argument that the Federal Burma Act had given the President had flexibility over federal sanctions but “implicitly left control over state sanctions to the State”). 56a Appendix F C. Even if Not Affirmatively Preempted, the California Forced Labor Statute Is an Unconstitutional Intrusion Into the Conduct of Foreign Affairs. The Supreme Court has established that, even apart from statutory preemption, the Constitution’s commitment to the Federal Government of the exclusive responsibility for conducting the nation’s foreign affairs acts as an independent constraint on state activity. Thus, “even in [the] absence of a treaty” or federal statute, a state policy that disturbs foreign relations must be set aside. Zschernig, 389 U.S. at 441. See also Chy Lung v. Freeman, 92 U.S. 275 (1875) (striking down California statute requiring ship to post bond for certain foreign immigrants without finding conflict with any federal statute or treaty). It is not a question of “balanc[ing] the nation’s interest in a uniform foreign policy against the particular interests of a particular state”; rather, “there is a threshold level of involvement in and impact on foreign affairs which the states may not exceed.” National Foreign Trade Council v. Natsios, 181 F.3d 38, 52 (1st Cir. 1999), aff'd, 530 U.S. 363 (2000). Zschernig is illustrative. In that case, the Supreme Court struck down an Oregon probate law that prevented the distribution of estates to foreign heirs if. under foreign law, the proceeds of the estate were subject to confiscation. 389 US. at 431. The Court noted that application of the statute required state courts to engage in “minute inquiries concerning the actual administration of foreign law” and to judge the credibility and good faith of foreign counsels, id. at 435, with outcomes turning upon “foreign policy attitudes” regarding the Cold War, id. at 437. Accordingly, the Court concluded that the statute had “a direct impact upon foreign relations and may well adversely affect the power of the central government to deal with those problems.” Jd. at 441. The Court held that this “kind of state involvement in foreign affairs and international relations — matters which the Constitution entrusts solely to the Federal Government” — was “forbidden state activity.” Jd. at 436. 57a Appendix F The California forced labor statute represents a similar impermissible intrusion into the Federal Government’s authority to regulate foreign affairs. California is plainly of the view that Japanese companies’ use of unpaid forced labor, even if condoned by the Imperial Japanese government, violated principles of international human rights law. But under our constitutional scheme, only the Federal Government has the authority to prescribe penalties for foreign violations of international law. See U.S. Const. Art. 1, § 8, cl. 10; United States v. Arjona, 120 U.S. 479, 487 (1887). This is particularly so where, as here, the international law violations at issue were committed in conjunction with a foreign government during the course of a war against the United States. As the Supreme Court has recognized, war-related claims, including the claims of nationals, are frequently the subject of government-to-government negotiations at the conclusion of hostilities. See, e.g., United Statesv. The Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) (upholding the Federal Government’s power to abolish, by way of treaty, private prize claims against foreign property); Ware v. Hylton, 3 U.S. (3 Dall.) 199, 230 (1796) (refusing to adjudicate a personal debt, confiscated by Virginia during the Revolutionary War, because the treaty of peace concluding the war had not provided for such claims). The decision whether to risk continued animosity with a foreign power by creating claims in American courts arising out of foreign nationals’ participation in their government’s atrocities is a determination that only the Federal Government is authorized to make. See Pink, 315 U.S. at 225 (noting that “the existence of unpaid claims against Russia and its nationals which were held in this country * * * had long been one impediment to resumption of friendly relations between these two great powers” (emphasis added)). Even a State with the best of intentions lacks the resources and breadth of view necessary to assess the impact of punishing particular international law violations on the United States’ 58a Appendix F . multi-faceted international interests. See, e.g., Crosby v. National Foreign Trade Council, 530 U.S. 363, 381-82 (2000) (observing that independent state activity would undermine President’s ability to coordinate the country’s multi-pronged policy of encouraging democratic change in Burma through enticements, threats, and cooperation with other foreign nations). A state legislature is in a poor position to assess what risks to our relations with Germany and Japan are entailed by a statute that aims to redress the wrongs of World War II, or to weigh those risks against other foreign policy objectives that depend upon the good will of those governments. The interests of the nation as a whole should not be made dependent upon the judgment of any one State which lacks both the responsibility and the capacity to formulate foreign policy. Plainly, the California legislature has engaged in a policy- oriented balancing of interests and decided that the benefits of adopting a law with respect to German and Japanese forced ~ labor claims were worth the risks entailed in antagonizing the target companies and the German and Japanese governments. As to the States, such foreign policy debates are “forbidden activity.” Zschernig, 389 U.S. at 435-36.* Like other state statutes that have been held invalid under Zschernig, this statute * At the time of the bill’s signing, the provision’s author made clear that the statute was intended to influence the conduct of the United States and German governments in their discussions relating to Holocaust-era claims: [Section 354.6] sends a very powerful message from California to the U.S. government and the German government, who are in the midst of rather closed negotiations about a settlement. * * * If the international negotiators want to avoid very expensive litigation by survivors * * *, they ought to settle. * * * Otherwise, this law allows us to go ahead and take them to court. See Henry Weinstein, Bill Signed Bolstering Holocaust-Era Claims, Los Angeles Times, July 29, 1999, at A3 (1999 WL 2181642) (emphasis added). 59a Appendix F unacceptably compromises the nation’s interest in having its foreign policy conducted by a national government responsible to the citizens of all states. See Natsios, 181 F.3d at 53 (Massachusetts statute restricting the ability of state agencies to purchase goods or services from companies that also did business in Burma was specifically designed to affect the affairs of a foreign country); Miami Light Project v. Miami-Dade County, 97 F. Supp. 2d 1174, 1176-77, 1180 (S.D. Fla. 2000) (by requiring public contractors to certify that neither they nor their subcontractors had engaged in commerce with Cuba, Cuban products or Cuban nationals, county had impermissibly inserted itself into a “hotbed of foreign affairs” with the intent to “protest and condemn Cuba’s totalitarian regime”); Tayyari v. New Mexico State Univ., 495 F. Supp. 1365, 1376-80 (1980) (state university’s policy of denying admission to Iranian students in retaliation for the Iranian hostage crisis intruded upon “the arenas of foreign affairs and immigration policy, interrelated matters entrusted exclusively to the federal government”); Springfield Rare Coin Galleries, Inc. v. Johnson, 503 N.E.2d 300, 302-03 (Ill. 1986) (state law regarding the sale © of South African coins was unconstitutional where adopted “as an expression of disapproval of that nation’s policies”); New York Times Co. v. City of New York Comm’n on Human Rights, 361 N.E.2d 963, 968 (N.Y. 1977) (striking down prohibition on advertising jobs in South Africa as an impermissible intrusion upon foreign relations). Compare Trojan Technologies, Inc. v. Pennsylvania, 916 F.2d 903, 913-14 (3d Cir. 1990) (upholding state “Buy America” statute in part because the law did not involve evaluation of specific foreign nations), cert. denied, 501 U.S. 1212 (1991). Further, as with the Massachusetts Burma statute, the potential foreign policy impact of California’s forced labor statute must be assessed within the “broader pattern of state and local intrusion.” Natsios, 181 F.3d at 53. If California is free to redress the wrongs associated with forced labor during World War II, then each State is free to adopt similar — or even 60a Appendix F inconsistent — laws relating to their preferred foreign human rights issue, whether it be repression in Burma, cf Natsios, 181 F.3d at 53, or communism in Cuba, cf Miami Light Project, 97 F. Supp. 2d at 1180. In addition to violating the territorial limitations on state jurisdiction, discussed below, such a rule would severely undermine American foreign policy. Individual States cannot be permitted to force their favored issues or preferred resolutions into the Federal Government’s diplomacy. See Crosby, 530 U.S. at 382-83 (observing that Massachusetts had undermined federal policy toward Burma by making the state law the focus of diplomacy, rather than Burma’s conduct). As discussed above, the conflict with federal policy in this case is real and direct. The Federal Government made the determination at the conclusion of World War II that the nation’s strategic need for a strong, democratic ally against communism in Asia required that claims against Japan and Japanese companies be resolved finally through inter- governmental negotiation.. Thus, the Allies, including the United States, foreclosed litigation of their nationals’ war- related claims in exchange for the right to confiscate and distribute Japanese assets within their territory. The Allies directed that the claims of Korean and Chinese nationals be dealt with similarly. California’s forced labor statute moves in precisely the opposite direction, encouraging and facilitating litigation of the exact claims that the federal policy seeks to bar. Actual adjudication of plaintiffs’ claims would draw the courts even deeper into the terrain of foreign affairs. The court would be called upon to adjudicate whether Japan’s bilateral treaties with South Korea and the Republic of China do, in fact, resolve plaintiffs’ legal claims. If the parties to those agreements disagree on their meaning, a court ruling either way might well inflame simmering internationai disputes. Moreover, a finding that the treaties had not finally resolved those claims would be equivalent to a determination that Japan violated its obligations under the terms of the 1951 Treaty of 6la Appendix F Peace. An individual state legislature cannot interject its courts into such foreign policy thickets. See Zschernig, 389 U.S. at 435-37. Plaintiffs mistakenly contend that this Court’s opinion in Gerling Global Reins. Corp. of America v. Low, 240 F.3d 739 (9th Cir. 2001) (“Gerling-Low”) controls the foreign affairs analysis in this case. As the district court explained, the Gerling-Low decision turned on factors that, in this case, require dismissal of plaintiffs’ claims. In Gerling-Low, the Court found that the disclosure provisions of the HVIRA were related to the State’s domestic interest in monitoring the bona fides of insurance companies doing business in the State. 240 F.3d at 744-45. A disclosure requirement alone, the Court stated, would not affect the “decision making authority” of insurance companies “to pay or not to pay claims.” Jbid. Moreover, Congress had, in the Court’s view, “expressly delegated to the states the power to regulate insurance,” id. at 744-46 (citing the McCarran-Ferguson Act), and had even “embrace[d] state legislation like HVIRA,” id. at 748 (citing the U.S. Holocaust Assets Commission Act of 1988). The California forced labor statute, in contrast, is an attempt to force foreign companies and their affiliates to pay damages, according to a formula determined by the California legislature, for wrongs committed in foreign lands.” Federal policy is precisely to the contrary. Thus, the forced labor statute is quite distinct from the HVIRA, as construed by the Court, and more akin to those provisions of California insurance law that the Court specifically declined to address in the Gerling-Low decision. See 240 F.3d at 745 (reserving “for another day” consideration of the constitutionality of California Ins. Code ° As described further below, infra at 31, plaintiffs’ and the State of California’s characterization of Section 354.6 as merely a “statute of limitations” cannot be squared with the provision’s language. 62a Appendix F § 790.15, which authorizes license suspensions of insurance companies who have not paid Holocaust-era claims, and Cal. Civ. Proc. Code § 354.5, which allows claims for payment on Holocaust-era insurance policies issued in Europe). Plaintiffs would construe the Gerling-Low ruling so broadly as to overturn the Supreme Court’s Zschernig decision. In plaintiffs’ view, the Gerling-Low court held Zschernig inapplicable wherever the defendants are simply businesses and no foreign government has been named as a defendant, and where the statute at issue is not directed at a particular country. See Kim Br. at 25. Under this construction, the Gerling-Low opinion necessarily overruled the holding in Zschernig because no foreign government was a party to the litigation in Zschernig, and the statutes there at issue were not, on their face, directed at any particular country. See Zschernig, 389 U.S. at 430, 432.° Plainly, this Court did not purport to overrule Supreme Court precedent. See Agostini v. Felton, 521 U.S. 203, 237 (1997); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000). Il. THE CALIFORNIA WORLD WAR II FORCED LABOR STATUTE IS EXTRATERRITORIAL LEGISLATION THAT IS BEYOND THE AUTHORITY OF THE STATE TO ENACT. In addition to Section 354.6’s impermissible interference with federal foreign policy, the state statute also violates the federal Constitution’s prohibition on States attempting to project their legislative jurisdiction beyond their borders. A. The Commerce Clause of the federal Constitution “has long been understood” not only as an affirmative grant of authority to the Federal Government, but as a constraint upon ® Even if this were the test, Section 354.6 is, in fact, expressly directed at particular foreign countries: “Nazi [Germany], its allies or sympathizers.” 63a Appendix F the power of the States, which “‘provide[s] protection from state legislation inimical to the national commerce [even] where Congress has not acted.’” Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298, 310 (1994) (quoting Southern Pacific Co. v. Arizona, 325 U.S. 761, 769 (1945)). As the Supreme Court has explained, the Commerce Clause precludes a State from applying its law “to commerce that takes place wholly outside of the State’s borders.” Edgar v. MITE Corp., 457 U.S. 624, 642-43 (1982) (plurality opinion). See also BMW of North America, Inc. v. Gore, 517 U.S. 559, 572 (1996) (State may not “impose economic sanctions on violators of its laws with the intent of changing the [violator’s] lawful conduct in other States”). Extraterritorial regulation “exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature.” Healy v. Beer Institute, 491 U.S. 324, 336 (1989). These principles apply with particular force in the international arena, and the Supreme Court has recognized that the dormant Foreign Commerce Clause prevents States from regulating commerce in a manner that “prevents the Federal Government from ‘speaking with one voice when regulating commercial relations with foreign governments.’” Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 451 (1979) (quoting Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976)). A state statute “will violate the ‘one voice’ standard if it either implicates foreign policy issues which must be left to the Federal Government or violates a clear federal directive.” Container Corp. v. Franchise Tax Bd, 463 U.S. 159, 194 (1983) Similar principles, inherent in the constitutional requirement of due process, also limit a State’s ability to project its law beyond its borders. See Allstate Ins. Co. v. Hague, 449 US. 302, 310-11 (1981) (plurality) (“if a State has only an insignificant contact with the parties and the occurrence or 64a Appendix F transaction, application of its law is unconstitutional”); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985); Home Insurance Co. v. Dick, 281 U.S. 397, 407-08 (1930). See also Quill Corp. v. North Dakota, 504 U.S. 298, 306 (1992) (“[t]he Due Process Clause ‘requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax’” (citation omitted)). The due process limitations on a State’s extraterritorial legislation look “not only at whether the parties * * * have contacts with [the State], but also and more importantly * * * at whether the subject [of the legislation] has a sufficient nexus to [the State].” Gerling Global Reinsurance Corp. of America v. Gallagher, 267 F.3d 1228, 1238 (11th Cir. 2001) (“Gerling-Gallagher”). Applying these principles, the Eleventh Circuit in Gerling- Gallagher recently enjoined application of a Florida statute that attempted to force European insurance companies and their Florida affiliates to pay on insurance policies issued in Europe prior to and during World War II. See Gerling-Gallagher, 267 F.3d at 1238. The court explained it was insufficient that, subsequent to the Holocaust, some victims had moved to Florida or that affiliates of the European insurers did business in Florida. Jbid. The State lacked a sufficient nexus to “the subject’ of the legislation - “the German affiliates’ payment or non-payment of Holocaust-era policy claims.” Ibid. B. In enacting its Second World War forced labor statute, the California legislature sought to create and define a cause of action to provide compensation for victims of German and Japanese forced labor practices during World War II. Section 354.6 establishes the cause of action, Cal. Civ. Pro. § 354.6(b), defines the class of plaintiffs who may sue, id. § 354.6(a)(1), (2), affixes the measure of damages (eliminating the effect of post-war inflation), id. § 354.6(a)(3), makes corporations doing business in California liable for the debts of their Asian and European affiliates, without regard to traditional principles of corporate identity, id § 354.6(b), and sets aside generally- 65a Appendix F applicable statutes of limitations, substituting an 81-year statute of limitations that extends to 2010, id. § 354.6(c). Contrary to plainuffs’ and the California Attorney General’s - ~ suggestion, the statute thus is considerably more than a state “statute of limitations.” Indeed, the paragraph that establishes the limitations period expressly disavows any _ general application to causes of action that arise under other provisions of substantive law. To the contrary, the limitations provision applies only to “[a]ny action brought under this section.” Id. § 354.6(c) (emphasis added). The principles outlined above plainly preclude this extraterritorial legislation. As noted, both the “dormant” Commerce Clause and the Due Process Clause prohibit a State from projecting its laws into other jurisdictions. See Healy v. Beer Institute, 491 U.S. 324, 336 (1989) (Commerce Clause); Home Insurance Co. v. Dick, 281 U.S. 397, 407-08 (1930) (Due Process Clause). The California legislature can no more regulate conduct that takes place in Asia or legislate what damages should be paid for such conduct, than it can impose its regulatory policies on New York. Section 354.6 applies to conduct in territory “conquered by the Nazi regime, its allies or sympathizers” at any time during World War II. See Cal. Civ. Pro. § 354.6(a)(2). By definition, therefore, the statute applies only to conduct that occurred outside of California. Nor does the statute represent an attempt to afford protection to California citizens victimized in foreign nations. The statute seeks to provide relief to persons “taken from a concentration camp or ghetto” in Europe, or “membez{[s] of the civilian population[s] conquered by the Nazi regime, its allies or sympathizers.” Jd. § 354.6(a). Indeed, with respect to claims concerning the Pacific Theater, the only conceivable plaintiffs are individuals who were not nationals of the United States in 1951, when the United States explicitly waived all such claims. Although some of the named plaintiffs may subsequently have moved to California, it is well-established 66a Appendix F that the mere presence of the parties in a State is not an adequate basis for that State to apply its substantive law to activity with no other significant contact with the State. Allstate Ins. Co., 449 U.S. at 310-11 (citing John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178 (1936)). C. Plaintiffs cannot avoid the territorial limitations of the Commerce and Due Process Clauses by arguing that Section 354.6 merely authorizes suit against conduct that violated universal norms of international law. Cf Kim Br. at 36-38. As discussed above, the authority to “define and punish Offences against the Law of Nations,” U.S. Const. Art. I, § 8, cl. 10, is “conferred by the constitution on the government of the United States exclusively.” United States v. Arjona, 120 U.S. 479, 487 (1887).’ Thus, it is beyond the authority of the California legislature to provide redress for violations of international law beyond what remedies might be provided by federal law. See also The Federalist, No. 3 (Jay) (Rossiter ed. 1961) 43 (in contrast to the Articles of Confederation, where each State had independent authority to adjudicate points of international law, “Tujnder the national government, * * * the laws of nations will always be expounded in one sense and executed in the same manner”). Plaintiffs’ reliance on the history of state courts exercising jurisdiction over “transitory” torts, cf’ Kim Br. at 33-34, is misplaced. As the Second Circuit explained in Filartiga v. Pena-lrala, 630 F.2d 876 (2d Cir. 1980), upon which plaintiffs rely, a state court may provide a remedy for foreign conduct only “as long as the conduct complained of was unlawful where performed,” id. at 885. See also ibid. (exercise of jurisdiction over transitory torts “is an expression of comity to give effect to ” Of course, the States retain jurisdiction to prescribe and punish conduct that occurs in their own territory that might also violate international law. See Arjona, 120 U.S. at 487. 67a Appendix F the laws of the state where the wrong occurred”). Here, in contrast, plaintiffs’ Complaints acknowledge the full cooperation and involvement of the Imperial Japanese government in defendants’ alleged conduct. See, e.g., ER 12, 43-44, 98. CONCLUSION For the foregoing reasons, the judgment of the district court should be affirmed. Respectfully submitted, Of Counsel: ROBERT D. McCALLUM, JR. Assistant Attorney General JAMES G. HERGEN LARA A. BALLARD DAVID W. SHAPIRO United States Dept. of State United States Attorney Office of the Legal Advisor Washington, D.C. 20037 MARK B. STERN DOUGLAS HALLWARD- DRIEMEIER Attorneys, Appellate Staff Civil Division, Room 9113 Department of Justice Washington, DC 20530-0001 Tel: (202) 514-5735 Fax: (202) 514-9405 Dated: June 6, 2002 Attorneys for the United States --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1674%3A3. Public record. Not legal advice.