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Published online by Cambridge University Press: 20 January 2017
Last year in the Stanford Law Review, I described an emerging trend in U.S. courts: litigation isolationism. Through developments in personal jurisdiction, forum non conveniens, international comity, and the presumption against extraterritoriality, I argued, courts have developed increasingly strong tools for avoiding transnational litigation. Decisions advancing litigation isolationism often fail to accomplish their stated goals—typically promoting separation of powers, avoiding interstate friction, and protecting defendants from the inconvenience of U.S. litigation. They also undermine important U.S. interests, often by excluding or dismissing cases that have close ties to the United States. At the end of that article, I cautioned against the continuation of the trend.
1 Bookman, Pamela K., Litigation Isolationism, 67 Stan. L. Rev. 1081 (2015)Google Scholar.
2 RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016).
3 Id. at 2115, slip op. at 1 (Ginsburg, J., dissenting).
4 Id. at 2100, slip op. at 7.
5 Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 255 (2010).
6 Bill Dodge notes elsewhere in this symposium that a provision-by-provision approach is consistent with recent applications of the presumption in Morrison, 561 U.S. at 265; Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 455-56 (2007). See Dodge, William S., The Presumption Against Extraterritoriality in Two Steps, 110 AJIL Unbound 45 (2016)CrossRefGoogle Scholar.
7 The Court “assume[s] without deciding that the alleged pattern of racketeering activity consists entirely of predicate offenses that were either committed in the United States or committed in a foreign country in violation of a predicate statute that applies extraterritorially. “ RJR, 136 S. Ct. at 2105, slip op. at 18.
8 Id . at 2108, slip op. at 22.
9 Id. at 2113, slip op. at 3 (Ginsburg, J., dissenting ). As Anthony Colangelo puts it elsewhere in this symposium, the Court “‘looked through ‘the RICO statute to the underlying predicate statutes to discern RICO’s geographic coverage as to certain racketeering activities,” but it “was not willing to look through RICO” when interpreting the scope of the statute creating the private right of action. See Colangelo, Anthony J., The Frankenstein’s Monster of Extraterritoriality, 110 AJIL Unbound 51 (2016)CrossRefGoogle Scholar.
10 For an overview of the state of the presumption against extraterritoriality ten years ago, see Bookman, Pamela K., Note, Solving the Extraterritoriality Problem: Lessons from the Honest Services Statute, 92 Va. L. Rev. 749, 784 (2006)Google Scholar.
11 Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
12 The Court has applied principles inspired by the antiextraterritoriality presumption to other parts of statutes, but not the presumption itself, which sets a higher bar. See, e.g., Small v. United States, 544 U.S. 385, 389 (2005) (noting that “the presumption against extraterritorial application does not apply directly” in cases determining whether statutory provision “convicted in any court” includes convictions in foreign courts, and interpreting “any” as limited to domestic context); cf. id . at 395 (Thomas, J., dissenting) (objecting to interpretation limiting “any” to describe only domestic courts); RJR, 136 S. Ct. at 2108, slip op. at 22 (“The word ‘any’ ordinarily connotes breadth, but it is insufficient to displace the presumption against extraterritoriality.”).
13 See Kiobel, 133 S. Ct. at 1665 (“we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS”).
14 RJR, 136 S. Ct. at 2101, slip op. at 9.
15 28 U.S.C. 1332 (“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—(1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state . . . “).
16 See William S. Dodge, The Presumption Against Extraterritoriality Still Does Not Apply to Jurisdictional Statutes, Opinio Juris (July 1, 2016, 4:57 PM).
17 The Second Circuit in United States v. Microsoft, No. 14-2985, July 14, 2016, stated it did not believe itself to be “at liberty” to disregard the presumption against extraterritoriality in evaluating the scope of the word “warrant” in the SCA.
18 18 U.S.C. § 2423(b) (“[A] United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, for the purpose of engaging in any illicit sexual conduct with another person shall be fined . . . or imprisoned . . .”).
19 18 U.S.C. § 2255 (“Any person who, while a minor, was a victim of a violation of section . . . 2243 . . . and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court . . .”).
20 Ted Folkman, Case of the Day RJR Nabisco v. European Community, Letters Blogatory (June 29, 2016).
21 To reverse the effect of the EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), which applied the presumption against extraterritoriality to find that Title VII does not apply extraterritorially, Congress amended the statute to define “employee” to include U.S. citizens employed in a foreign country, 42 U.S.C. § 2000e(f), and to reach U.S. employers abroad, 42 U.S.C. § 2000e-1(c). But the statute allowing private parties to sue for violations of Title VII, 41 U.S.C. § 2000e–5(f), does not itself contain an indication of extraterritorial application. RJR suggests that Congress’s fix was insufficient.
22 Kiobel, 133 S. Ct. at 1669.
23 RJR, 136 S. Ct. at 2095, slip op. at 18.
24 Id . at 2095, slip op. at 19.
25 Id . at 2115, slip op. at 7 (Ginsburg, J., dissenting).
26 Id. at 2116, slip op. at 2 (Breyer, J., dissenting).
27 Kiobel, 133 S. Ct. at 1664.
28 See Eichensehr, Kristen, Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. 289 (2016)Google Scholar.
29 It is interesting to note that the Solicitor General, in pushing the interpretation the Court ultimately adopted, did not take this approach. See Brief for the United States as Amicus Curiae Supporting Vacatur, RJR Nabisco, Inc., v. European Community, 15-138 (Dec. 2015).
30 See, e.g., Brief for the Republic of France as Amicus Curiae in Support of Respondents, Morrison v. National Australia Bank, No. 08-1191, Feb. 26, 2010, at 2 (criticizing “[t]he extraterritorial application of U.S. securities fraud laws at the behest of plaintiffs who are not citizens or residents of the U.S., against defendants who are not citizens or residents of the U.S., for frauds perpetrated on exchanges that are not within the territory of the U.S.” (emphasis added)); Brief of the Governments of Germany, et al., F. Hoffman-La Roche Ltd. v. Empagran, No. 03-724, Feb. 3, 2004, at 25 (objecting to U.S. regulation of “the conduct of foreign businesses in foreign countries”).
31 See RJR Nabisco, Inc. v. European Community, No. 15-138, Brief for Respondents at 46-52 (Feb. 4, 2016), for additional reasons to distinguish those cases.
32 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
33 Brief of Amicus Curiae the European Commission in Support of Neither Party, Sosa v. Alvarez-Machain, No. 03-339, Jan. 23, 2004, at 13.
34 RJR is the only major tobacco company not to have entered into an antifraud agreement with the European Union and its Member States. See Tobacco Smuggling, OLAF European Anti-Fraud Office (July 1, 2016).
35 See Scott, Joanne, The New EU “Extraterritoriality”, 51 Common Market L. Rev. 1343 (2014)Google Scholar.
36 See Bookman, Pamela K., The Unsung Virtues of Global Forum Shopping, 92 Notre Dame L. Rev. (forthcoming 2016)Google Scholar.
37 See, e.g., Alanna Petroff, New Bombshell Lawsuit Against Volkswagen, CNN Money (May 16, 2016, 8:30 AM).
38 Congress revised Title VII to have it apply extraterritorially under certain circumstances after Aramco, see supra note 19; it was silent following Kiobel ; and it reacted to Morrison the day after the Supreme Court released its opinion, in a move that came too quickly to call it a reaction to the decision, see Ventoruzzo, Marco, Like Moths to A Flame? International Securities Litigation After Morrison: Correcting the Supreme Court’s “Transactional Test”, 52 VA. J. Int’l L. 405, 439 (2012)Google Scholar.
39 RJR, 136 S.Ct. at 2115, slip op. at 7 (Ginsburg, J., dissenting).
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