OFII regularly participates in the U.S. legal system on its own and with other business groups on issues that uniquely or disproportionately affect U.S. Subsidiaries of companies headquartered abroad.

Rio Tinto v. Sarei
OFII joined with a coalition of business groups in submitting an amicus brief to the United States Supreme Court in support of the cert petition of the respondents in Rio Tinto PLC v. Alexis Holyweek Sarei – a case concerning corporate liability under the Alien Tort Statute (ATS).  In this case, Rio Tinto was sued for human rights violations allegedly committed by the government of Papua New Guinea following an uprising at the company’s gold and copper mines.  The Ninth Circuit Court ruled that corporations can be held liable under the ATS in appropriate circumstances.  OFII is urging the Court to take up the case and rule on the appropriate mens rea standard that must be proven and pleaded to hold a corporation liable under the ATS.

Kiobel v. Royal Dutch Petroleum
OFII joined with a coalition of business groups to submit an amicus brief to the United States Supreme Court in agreement with the respondents that corporations may not be held liable under the Alien Tort Statute (ATS) for the alleged violations.  The brief urges the Court to rule that a corporation needs to act with a purpose to facilitate, not just have a knowledge of, the human rights violations to be found liable of aiding

Bauman v. DaimlerChrysler
OFII and the National Foreign Trade Council jointly submitted an amicus brief to the full Ninth Circuit Court in support of Daimler’s petition for rehearing.  This case examines whether U.S. courts can exercise general personal jurisdiction over a foreign corporation based on the activities of its U.S. subsidiaries and affiliates.  The Ninth Circuit panel found a U.S. court has jurisdiction over Daimler AG for claims relating to alleged events in Argentina many years ago, simply because Mercedes-Benz USA distributes automobiles in the United States.  The Panel’s holding is out of step with decisions from other U.S. courts (see Rasmussen v. Nissan).  Daimler filed a petition for a rehearing, but the full Ninth Circuit Court in their ruling denied Daimler’s petition.  Daimler has since filed a cert petition on February 6, 2012.

Tomas Maynas Carijano, et al., v. Occidental Petroleum Corp, et al. 
OFII joined with a coalition of business groups in submitting an amicus brief to the United States Court of Appeals for the Ninth Circuit in support of the Plaintiffs’ petition for a panel rehearing in California.  In this case, the Plaintiffs appealed a district court’s decision to dismiss a suit against Occidental Petroleum under the doctrine of forum non conveniens ruling the suit should have been brought in Peru, rather than in California, because the former is a more convenient forum.  The Ninth Circuit Court of Appeals ultimately ruled that the “district court’s determination” to dismiss the case “is moot” because Occidental failed to meet the substantial burden necessary to invoke the “exceptional tool” of forum non conveniens.  Thus, the appeals court granted the petition for a panel rehearing in California and remanded the case back to the district court for consideration.  

J. McIntyre Machinery Ltd. v. Robert Nicastro, et al.
Like Goodyear, this case limits the authority of a state to exercise personal jurisdiction over a foreign corporation in product liability cases.  The United States Supreme Court held that New Jersey could not exercise personal jurisdiction against a foreign manufacturer based on the mere fact that its products ended up in a forum state through the actions of an independent distributor.  Mere knowledge that a product “might” end up reaching a state is insufficient cause to exercise personal jurisdiction.  OFII jointly filed an amicus brief with the Association of International Automobile Manufacturers in support of the petitioner.

Goodyear Luxembourg Tires S.A., et al. vs. Edgar D. Brown et, al.
Like McIntyre, this case limits the authority of a state to exercise personal jurisdiction over a foreign corporation in product liability cases. The United States Supreme Court voted unanimously to reverse the North Carolina court’s exercise of general jurisdiction over the “foreign subsidiaries of a United States parent corporation” on “claims unrelated to any activity of the subsidiaries in the forum State.”  The Court held that the foreign subsidiaries did not have the “continuous and systemic general business contacts” necessary to support general jurisdiction.  OFII jointly filed an amicus brief with the Association of International Automobile Manufacturers in support of the petitioner. 

Rasmussen v. Nissan
This case affirms that a state cannot exercise jurisdiction over a foreign corporation based on the acts of its subsidiaries.  The Wisconsin Supreme Court agreed with the decision of the Wisconsin Court of Appeals and held that “the activities of the subsidiary corporation are insufficient to subject its nonresident parent corporation to general personal jurisdiction.”  Ultimately, the “substantial and not isolated activities” of Nissan North America are insufficient cause for David Rasmussen to sue Nissan Japan. OFII jointly filed an amicus brief with the Association of International Automobile Manufacturers in support of the defendant-respondent. 

Morrison v. National Australia Bank Ltd. (NAB)
This case will determine the appropriate standard for identifying domestic conduct sufficient to support a private claim of transnational securities fraud. The issue is one of substantial importance to the international business community because it will define the scope of fraud liability under U.S. securities laws for foreign corporations with U.S. operations doing business with foreign investors on foreign securities exchanges.

Mark Maniscalco & Walter Huryk vs. Brother International Corporation (USA)
In 2009, OFII filed an amicus brief in the United States District Court of New Jersey supporting Brother International Corp.’s (BIC) appeal of two previous rulings, which ordered the domestic company to produce “design and engineering documents” of its parent corporation.  The critical issue is whether a domestic subsidiary that is a party in a lawsuit must produce proprietary documents of its foreign, nonparty parent corporation.  OFII believes if the earlier decision stands and these discovery obligations are expanded, other cases might adopt the same reasoning, resulting in the regular circumvention of international legal standards adopted by the Hague Convention for obtaining evidence abroad.

Schanfield v. Sojitz Corporation of Amerca, et al.
In this case, Sidley Austin LLP achieved a significant victory for foreign corporations doing business through U.S. subsidiaries. The suit alleged that a former Auditor and similarly situated non-Asian, non-Japanese employees were discriminated against when compared to Japanese nationals due to temporary rotational assignments. The Court ruled that the rotational program under which a Japanese corporation posts its employees to managerial jobs at its American subsidiary does not violate federal, state or local laws prohibiting face and national origin discrimination. By permitting a U.S. subsidiary to vindicate the treaty rights of its parent, the Court has supported the extent to which foreign corporations may use their own nationals to run local subsidiaries without running afoul of U.S. discrimination laws.

Brief for Amici Curiae in Support of Petition for Rehearing of Appellee Xilinx, Inc.
In this case, OFII joined with a host of other global corporations that conduct business in the U.S. and filed an amicus brief supporting the Petition for Rehearing or Rehearing En Banc of Apellee Xilinx, Inc. The Majority's opinion goes directly against the long-standing arm's length standard that the Congress, Courts, Treasury Department, and Commissioner of Internal Revenue repeatedly have mandated as the bedrock of the transfer pricing regime under section 482. OFII argues that the rejection of the arm's length standard in favor of a nonconforming approach will undermine international trade by subjecting multinational companies doing business in the U.S. to double taxation. Accordingly, the Amici submit that the Majority opinion should be set aside.

Brief for Amici Curiae in Balintulo v. Daimler AG
In this case, the National Foreign Trade Council ("NFTC"), USA*Engage, the U.S. Council for International Business, the National Manufacturers ("NAM") and OFII call for this suit to be dismissed as it undermines both foreign trade and U.S. foreign policy by impinging on the ability of the U.S. government to conduct foreign affairs. This suit is premised on the theory that the defendants "aided and abetted" violation of international law by South Africa's former apartheid regime. However, the Executive Branch long ago adopted a policy of commercial engagement with apartheid South Africa and along with the current democratic South African goverment, objected to this suit going forward. The district court's refusal to defer to the Executive Branch's foreign policy determinations damages international trade as firms engaged in international trade need to be able to rely on clear guidance from the political branches, it impedes foreign policy, and imposes grave uncertainty and costs on international trade. For these reasons, immediate review is warranted.

Letter in Support of Petition for Review in Yamaha Motor Co., Ltd. v. Superior Court
In this case, OFII filed an amicus letter brief supporting Yamaha Motor Company's Petition for California Supreme Court review of a California appellate court decision. In the underlying decision, California's intermediate state appellate court ruled in late May 2009 that California plaintiffs can serve foreign parent companies--e.g., transmit to them a complain initiating a lawsuit--just by serving their separately incorporated U.S. subsidiaries. This is contrary to formal international rules for service on foreign companies under an international treaty known as the Hague Convention. The appellate court's opinion openly questioned the wisdom of the California rule, but the court felt obliged to follow a still-binding 1959 California Supreme Court decision. OFII's amicus letter highlights the importance of the Hague Convention procedures to the international legal community, OFII members, and explains the adverse implications of the appellate court's decision for litigation in state and federal courts alike. Update: The California Supreme Court denied Yamaha's Petition for Review, leaving intact the intermediate appellate court's ruling that service of process on a U.S. subsidiary of a foreign corporation is sufficient to serve the foreign parent.

Capital One Bank (USA), et, al v. Commissioner of Revenue of Massachusetts (U.S. Supreme Court, 2008)
In this case, Capital One Financial Corporation is resisting the state of Massachusetts' effort to doubly tax its revenue. Capital One argues it's entitled to a tax credit because it has no physcial presence in the state of Massachusetts but the state believes the company's activities within the state justify the taxes. OFII agrees with Capital One's argument as permitting this type of extraterritorial taxation by one state is likely to invite similar tactics by other states and foreign taxing authorities, which would compromise the U.S. economy, investment, jobs and the overall competitiveness of the U.S. Update: Capital One lost their argument as the Court ruled the state of Massachusetts had the right to tax revenue generated within its borders, despite the location of the company.

American Isuzu Motors., et. al v. Lungisile Ntsebaza (U.S. Supreme Court, 2008)
In this case, the plaintiff argues that U.S. businesses violated international law by engaging in commercial activity with South Africa that indirectly contributed to that country’s apartheid policies. Despite these claims, a policy of commercial engagement had previously been adopted and approved by the Executive branch, a decision which firms relied upon to conduct business. OFII joins other leading business associations in its brief and contends that upholding plaintiff’s claims would interfere with the ability of the Executive to conduct foreign policy and harm U.S. trade relations with close allies.

Deborah Peterson v. Islamic Republic of Iran (U.S. District Court; Northern District of California, 2008)
The plaintiffs, Deborah Peterson and Joseph and Marie Boulus, on behalf of the estates of U.S. servicemen killed and wounded in the 1983 bombing of the Marine barracks in Lebanon, allege that the Islamic Republic of Iran is liable for the wrongful death and are seeking remuneration from financial institutions with substantive ties to Iran. In the brief, OFII argues that the relief sought by the plaintiff would go above and beyond current law, reflecting an extra territorial application of U.S. law. Any such application would unfairly subject financial institutions to conflicting legal obligations. Under the motion, banks would have to choose unfairly between paying the debt of its non-US customers or doing nothing and risk further legal repercussions for non-compliance in the US legal system.

Sinaltrainal., et. al v. The Coca Cola Company (U.S. Court of Appeals, 11th Circuit, 2008)
The plaintiff Sinaltrainal, a Colombian trade union, is bringing suit under the Alien Tort Claims Act alleging violations of human rights and international law by U.S. firm Coca-Cola. This case addresses whether Coca-Cola is jointly liable for the actions of its subsidiaries. In its brief to the U.S. Supreme Court, OFII contended that the Alien Tort Statute is only a grant of jurisdiction, and does not provide a cause of action for such lawsuits, which threaten to interfere with U.S. foreign relations and cross-border investment.

Trainer Wortham & Company, Inc. v. Heidi Betz (U.S. Supreme Court, 2008)
The plaintiff, Heide Betz, alleges that the mismanagement of her account by securities brokerage firm Trainer Wortham & Company, Inc. constitutes securities fraud.  The United States District Court for the Northern District of California granted summary judgment for the defendants on statute of limitations grounds, and the investor appealed. OFII argued that by permitting cases to proceed to trial in circumstances where Congress clearly intended them to be barred by the statute of limitations, the number of securities class-action defendants will increase and capital investment will be deterred.  The absence of predictability and certainty in the legal system drives foreign investment away from United States markets and toward markets with more stable legal rules.

Dassault Aviation v. Beverly Anderson (U.S. Supreme Court, 2004)
In this case, the plaintiff brought suit in Arkansas against Dassault Aviation, the French manufacturer of a Dassault Falcon business jet that Anderson worked onboard as a flight attendant.  The plaintiff alleged that she sustained injuries after being buffeted about the cabin after a series of pitch oscillations during a descent.  The case was dismissed for lack of personal jurisdiction over the French company, but was overturned on appeal by the U.S. Court of Appeals for the Eighth Circuit, which based jurisdiction on the French parent company’s “close, synergistic” relationship with its separately incorporated U.S. subsidiary in Arkansas.  In this brief supporting Dassault’s petition for review by the U.S. Supreme Court, OFII argued that confusion in the courts surrounding the due process limits on U.S. courts exercising jurisdiction over nonresident corporate defendants adversely affects not only the companies involved, but also international trade and foreign investment in the United States.

F. Hoffman-La Roche, Ltd. v. Empagran S.A. (U.S. Supreme Court, 2004)
In this case, foreign plaintiffs argued that F. Hoffman-La Roche had engaged in a price-fixing conspiracy that raised the price of vitamin products to customers in the United States and in foreign countries.  However the plaintiffs only alleged injuries resulting from their purchases of vitamins outside the United States, raising questions as to whether they could pursue claims in U.S. courts for violations of U.S. law.  In this brief to the U.S. Supreme Court, OFII argued that the relevant U.S. statute does not allow for antitrust suits  based on harms arising in transactions occurring  wholly outside the United States.

Sosa v. Alvarez-Machain (U.S. Supreme Court, 2004)
This case addressed whether a 1789 law that had lain dormant for nearly 200 years, the so-called Alien Tort Statute, provided a basis for lawsuits in U.S. courts alleging violations of international law, including alleged international law violations outside the United States.  In its brief to the U.S. Supreme Court, OFII contended that the Alien Tort Statute is only a grant of jurisdiction, and does not provide a cause of action for such lawsuits, which threaten to interfere with U.S. foreign relations and investment.

John Doe v. Unocal Corporation (U.S. Court of Appeals, Ninth Circuit, 2003)
Citizens of Myanmar (Burma) used the Alien Tort Statute to pursue claims against U.S.-based Unocal Corporation alleging that the company aided and abetted in international law violations by the Myanmar military. In this brief to the U.S. Court of Appeals for the Ninth Circuit, OFII contended that the plaintiffs lacked a cause of action under the Alien Tort Statute because that act only provides jurisdiction, noting that an unfettered Alien Tort Statute would create serious foreign policy and economic problems for the United States.

American Insurance Association v. John Garamendi (U.S. Supreme Court, 2003)
The case stems from California's Holocaust Victim Insurance Relief Act of 1999, which required any insurer doing business in that state to disclose information about certain policies sold by the insurer or any affiliate in Europe between 1920 and 1945. The plaintiffs argued that the law interferes with the President's conduct of the nation's foreign policy and is therefore preempted; the U.S. Supreme Court ultimately agreed and struck down the California statute.  OFII’s brief to the Supreme Court argued that the Act interfered with U.S. foreign policy and improperly regulated beyond the state’s and country’s borders.  OFII had also advanced similar arguments in amicus briefs in earlier stages of the case:

American Insurance Association v. Harry Low (U.S. Supreme Court, 2002); 

American Insurance Association v. Harry Low, California Insurance Commissioner (U.S. Supreme Court, 2001); 

Gerling Global Reinsurance v Clark Kelso, California Insurance Commissioner, (U.S. Court of Appeals, Ninth Circuit, 2000).

DaimlerChrysler v. Scott Olson (U.S. Supreme Court, 2002)
DaimlerChrysler petitioned the U.S. Supreme Court for a writ of certiorari on the previous case Daimler-Benz v. Scott Olson, (Supreme Court of Texas, 2001).  At issue was whether Texas courts could properly exercise jurisdiction over a non-resident corporation based on, inter alia, its operation of a worldwide website, its defense of federally-protected trademark, or the imputed forum contacts of an independent subsidiary.  In this brief in support of the cert petition, OFII argued that these links do not represent “minimum contacts” that allow Texas courts general jurisdiction.  OFII previously advanced similar arguments in a brief in support of DaimlerChrysler’s appeal to the Texas Supreme Court: Daimler-Benz v. Scott Olson (Supreme Court of Texas, 2001)

Havana Club Holding v. Bacardi (U.S. Supreme Court, 2000)
Bacardi began selling Bahamian-produced "Havana Club" rum in the United States.  Havana Club Holding, a Cuban rum manufacturer and holder of the “Havana Club” trademark, argued that Bacardi was violating U.S. and international trademark law.   OFII’s brief in support of a petition for certiorari to the U.S. Supreme Court argued that the decision below improperly abrogated U.S. treaty commitments relating to the protection of intellectual property rights.

Andrew S. Natsios v. National Foreign Trade Council (U.S. Supreme Court, 2000)
At issue in this case was whether the so-called “Burma law” of the Commonwealth of Massachusetts—a statute restricting government procurement from companies doing business with Burma—infringed upon the federal government’s authority over foreign affairs and was preempted by federal Burma sanctions legislation.  The Supreme Court ultimately held that the Massachusetts economic sanctions were preempted by the federal law.  In this brief to the U.S. Supreme Court, OFII contended that the Court of Appeals had ruled correctly that Massachusetts law intruded into foreign policy, an area that is constitutionally limited to the federal government.