Commercial Litigation and Arbitration

Foreign Antisuit Injunctions

An American plaintiff obtained a $35 million jury verdict against a Japanese defendant under the Antidumping Act of 1916, 15 U.S.C. § 72 (repealed 2004). During the pendency of the Japanese entity’s appeal, Congress prospectively repealed the Act. Shortly thereafter, the Japanese government enacted a clawback statute allowing Japanese nationals to sue for the recovery of any judgment entered against them under the Act. The district court granted the plaintiff’s motion for a preliminary injunction prohibiting the Japanese entity from filing suit in Japan under the new clawback statute. The issue for the Eighth Circuit in Goss International Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 2007 U.S. App. LEXIS 14306 (8th Cir. June 18, 2006) was a matter of first impression — propriety of issuing a foreign antisuit injunction. While other circuits had agreed that federal courts have the power to enjoin persons subject to their jurisdiction from prosecuting foreign suits, they were split ‛on the level of deference afforded to international comity in determining whether a foreign antisuit injunction should issue.“

The First, Second, Third, Sixth, and District of Columbia Circuits have adopted the "conservative approach," under which a foreign antisuit injunction will issue only if the movant demonstrates (1) an action in a foreign jurisdiction would prevent United States jurisdiction or threaten a vital United States policy, and (2) the domestic interests outweigh concerns of international comity. *** In contrast, the Fifth and Ninth Circuits follow the "liberal approach," which places only modest emphasis on international comity and approves the issuance of an antisuit injunction when necessary to prevent duplicative and vexatious foreign litigation and to avoid inconsistent judgments.

The Eighth Circuit cast its vote with the majority conservative approach. In deciding to vacate the injunction, the Court stressed that All Writs Act, 28 U.S.C. § 1651(a), did not confer jurisdiction, and the judgment entered in the District Court had been paid: ‛Neither the All Writs Act nor the court's ancillary enforcement jurisdiction provides the district court with a separate source of jurisdiction to enjoin [the Japanese entity] under these circumstances.“ The Goss Court also emphasized that, ‛once one court reaches a final judgment, the role of comity for antisuit injunction purposes essentially is moot because there is no longer tension with the foreign country over concurrent jurisdiction.“ The Eighth Circuit also disagreed with the district court's conclusion that Congress's decision to repeal the Act prospectively, rather than retroactively, might play a role in the decision to grant a foreign antisuit injunction to protect the court's jurisdiction or an important United States policy.“ Held, injunction vacated.

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