Transnational

Over the past 15 years, there has been a sharp rise in lawsuits brought against American companies, as well as foreign companies with a substantial U.S. presence, that are premised on alleged personal or environmental injuries occurring abroad. These cases raise the question of whether U.S. courts should be the venue for cases concerning conduct occurring outside the territory of the United States. They have also been characterized by controversial and abusive tactics by plaintiffs and their lawyers.

Many of those transnational lawsuits have been filed in the U.S. by plaintiffs’ class action firms, public interest attorneys and non-governmental organizations.  Some have been filed in federal courts under the 200-year old Alien Tort Statute (ATS), while many more have been brought in state courts under common law theories of liability. 

These cases raise several concerns. One is the use of U.S. courts for adjudicating disputes that occurred outside of the country. It is a generally established principle that U.S. courts should not hear cases involving foreign conduct unless there is a significant nexus to the United States. By undermining this principle, these cases set a precedent that could be used to expose Americans to litigation in foreign courts over conduct occurring in the United States.

Equally troubling are the tactics used in these cases. According to ILR’s study Think Globally, Sue Locally, transnational cases are characterized by a number of features, including aggressive media tactics, organized protests and boycotts of corporate defendants, political pressure and, in some cases, outright fraud and abuse by plaintiffs’ lawyers. In the major transnational case against Chevron in Ecuador, four federal courts have found the proceedings tainted by fraud.

In April 2013, the U.S. Supreme Court ruled in Kiobel v. Royal Dutch Petroleum that claims of wrongful conduct on foreign soil cannot be brought in U.S. courts under the ATS.  This ruling has substantially limited the use of the ATS in transnational cases, but does not deter cases brought under state common law. A complete list of lawsuits against corporations under the Alien Tort Statute can be found here

 

Research

As Kiobel Turns Two: How the Supreme Court is Leaving the Details to Lower Courts

August 11, 2015 | This paper explores the effect of the U.S. Supreme Court's Kiobel decision on Alien Tort Statute (ATS) litigation in lower courts, and how lower courts have struggled to determine whether Kiobel permits U.S. corporations to be sued under the ATS for alleged torts in foreign countries.

Federal Cases from Foreign Places: How the Supreme Court Has Limited Foreign Disputes From Flooding U.S. Courts

October 21, 2014 | This collection of essays examines the shifting legal landscape of federal claims by foreign plaintiffs in the federal courts and focuses on the most common statutes invoked by foreign plaintiffs, as well as the threshold issues of personal jurisdiction and pleading standards that govern such suits.

All Results for Transnational

Reuters' Alison Frankel Writes on the Potential for "Real Consequences" When TPLF Funders Bank on "Failsafe Personal Injury Litigation"

April 12, 2017 | News and Blog

Reuters' Alison Frankel writes on the recent request from Xarelto manufacturers to Judge Arnold New asking that he order plaintiffs' firms in a prospective bellwether case to reveal any outside funding as the defendants are "entitled to know who is in control and who has a right to be consulted." Read More »

In the News Today - April 11, 2017

April 11, 2017 | News and Blog

The makers of Xarelto filed a motion requesting that the Philadelphia Court of Common Pleas compel discovery on the topic of third-party litigation funding. Read More »

In the News Today - April 10, 2017

April 10, 2017 | News and Blog

The Senate confirmed Tenth Circuit Judge Neil Gorsuch to the U.S. Supreme Court on Friday by a vote of 54-45. "You could not have a finer person, a more ready person, a more legal expert type of person, than Neil Gorsuch," said Sen. Orrin Hatch. Read More »

In the News Today - April 7, 2017

April 07, 2017 | News and Blog

According to new research from law firm RPC, litigation against the largest 50 global banks has increased 37 percent in 2016. The report found that this increase is due to the long-term fallout from the 2008 financial crisis, a greater willingness by companies to fight disputes in court, and third-party litigation funders supporting an increased number of legal actions. Read More »

In the News Today - April 3, 2017

April 03, 2017 | News and Blog

Federal Court Judge Jonathan Beach approved a $40 million dollar settlement and accepted it was reasonable for the funders to get a 30 percent cut of net settlement proceeds, but "was quick to point out that it might not be the going rate more generally." Read More »

In the News Today - March 21, 2017

March 21, 2017 | News and Blog

U.S. District Judge Paul Diamond issued a bench warrant for the arrest of Martin Kenney and Garrett Kelleher after both failed to appear to determine their liability to insurer Cigna. In 2016, Judge Diamond ruled that Kenney and Kelleher had "repeatedly thumbed their noses at the courts of the United States" and were liable to Cigna for "orchestrating" continued action against the company. Read More »

The Growth of Collective Redress in the EU: A Survey of Developments in 10 Member States

Author: Ken Daly, Sidley Austin LLP | March 21, 2017 | Research

This paper examines the 'state of play' of collective redress in 10 Member States in the EU and suggests minimum necessary safeguards to prevent litigation abuse taking hold in Europe. Read More »

In the News Today - March 13, 2017

March 12, 2017 | News and Blog

U.S. House Judiciary Chairman Bob Goodlatte (R-VA) sent letters to the American Bar Association and every state bar association, urging the organizations to adopt requirements for warnings on trial lawyer advertisements that urge patients to discontinue the use of some medicines. Read More »

Class Action Reform Bill Would Spotlight "Cottage Industry" of Third-Party Litigation Funders

February 24, 2017 | News and Blog

In a story examining the Fairness in Class Action Litigation Act, the Wall Street Journal's Ben Depietro looks specifically at measures in the legislation that would "require disclosure of third parties funding class actions," and notes the U.S. Chamber's support for the bill. Read More »

In the News Today - February 24, 2017

February 24, 2017 | News and Blog

The American Law Institute is "cooking up new common law rules covering consumer contracts that would give courts an unprecedented range of reasons to invalidate or rewrite contract terms." Read More »

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