upreese Court of the United Statescan under their nation's laws." French regulatory believed it had the option of bypassing the French the US. THE Sort of EnterTHE a lawsuit in mposing an unnecessary burden on U.S. courts III. FOREIGN-CUB SHOULD BE PRECLUDED CATEGORICALLY orical rule harring foreign wished communities close actions from U.S. courts at the outset of litigation, As Judge Bork explained for the D.C. Circuit in Zoelach, a case-by-case application of international rently unpredictable," provide "powerful incent to "litigatlel . . ; the jurisdictional issue itself," divert disputes, and - most importantly - be unfaithful aw firms have attempted to recruit foreign investors in recent Buxbaum, 46 CORSI. J. TRANSNATI. L at 71 n.198 & n.199 leading plaintiff's firm, opened its own branch in Lands Coughlin Stoin Geller Rudman & Robbins LIP, promote their affiliations with foreign offices on their websites") the exact nature of those interactions should be the product of the sell interested nets be pep governments and not dictated by leemphasizeopal cor foreign sover rests , 824 Fad at 12 12. A caseby hireshold (which ap cars in be not app Immense burden, expense, and uncertainty or the ry, dispositive motions, and perhaps tri and the con it pressure to settle mpanies such uncertainty, The inherent unpredictability of a case-by-case hity principles is ilustrated by the court reals' unsuccessful attempt to reconcile its prior Firestone, Inc., 519 F.2d 974. 986 (2d Cir. 1975), the the ahead is carding to the court below. was "placing L.!' 2d at 957) (emphasis added). (In Berach, the the placement occurred outside the U.S . Pet . Ap 187, 192-95 (2d Cir. 2003), the act that directly statements See Pet. App. 14a. (In that case, the statements ferd created to New York, even though id.) The two decisions are flatly inconsistent, illu- toate the inherent unpredictability of a case by.cities rule that may be applied at the outset of litigation to protect international comity. poorical rule ould be bo Act does not confer suit reign cubed securities the extraten 116 (3d Cir. 15 Cir. 19791 S Bersch , 519 F.2d jinal (see Arbe mal should not bed U.S. 83, Q. v. Citizens for a Better En he implied right of action" in 1995 in the PSLRA ar anto, Inc., 562 U.S. 148, 165-66 (2008). ategorical rule could be based on ich relief can be granted - Le, Section 10(b) of the arities actions as a matter of international comity. this Court's "across the board" determination in Empagran that the Sherman Act does not apply to injury. 542 U.S. at 168. In both cases , the Court is ions case by case" because that "approach is too cedural costs and delays (that could themselves o maintain the integrity of its over target of here respondents in this case "moved to dismiss the con daint for lack of subject matter jurisdiction under Rule 12(b)(6) of the Federal Rules of Civil Procedure et. App. Sa. Under this alternate, merits-based failure to state a clair of jurisdiction. state a claim rather than dismissed for lack Either approach, however, would prevent foreign pleadings ; would avoid the extraterritorial applies ion of the anti-fraud provisions of the U.S. securities areign exchangen vowing solely tores hostility of foreign sovereigns to regulate their citizens, resi- traditions, cultural values, and public policies . "The Court could reach a similar result by holding that all the doctrine of forums non conveniena. See supra pp. 17-19. CONCLUSION The judgment should be affirmed. Respectfully submitted, STEPHEN J. MARZRN WENDY E. ACKERMAN SHEARMAN & STERLING LL Washington, DC 20004-26%4 smartenshearman.com Attorneys for Amicus Curia February 26, 2010
