Anti-Suit Injunction

• Author: International Law Group
• Pages: 106-108

Page 106

Japanese-based Tokyo Kikai Seisakusho, Ltd. (Defendant), one of the Defendants, and Goss International Corporation (Plaintiff), a Delaware company, both manufacture and supply newspaper printing presses and press additions. Between 1991 and 2000, Defendant allegedly began "dumping" its products, that is, selling them in the U.S. at prices substantially below the market value of its similar products in Japan. During that period, Defendant sold $125,000,000 worth of printing press additions in the US. Plaintiff, on the other hand, was losing contracts because customers expected it to lower its prices to match Defendant's predatory prices. In 2000, Plaintiffdid not make a single printing press equipment sale.

Plaintiffsued the Japanese Defendant alleging violations of the Antidumping Act of 1916 (the 1916 Act), 15 U.S.C. 72 (repealed 2004). The law "made it unlawful for foreign persons to sell imported articles within the United States at a price substantially less than the actual market value or wholesale price at the time of exportation, with the intent of destroying or injuring an industry in the United States." [Slip op. 2]. A district court awarded Plaintiffa judgment that totaled more than $35,000,000.00.

Congress repealed the 1916 Act on December 3, 2004. The repeal did not affect Plaintiff's judgment, however, because it was prospective. Shortly thereafter Japan enacted The Special Measures Law concerning the Obligation to Return Profi ts Obtained pursuant to the Antidumping Act of 1916 of the United States (SML), a so-called "clawback" statute, It authorized Japanese corporations and nationals to sue in Japanese courts for recovery of the full amount of any judgment, plus interest, attorney fees and costs, awarded under the 1916 Act." [Slip op. 3].

On appeal, the Eighth Circuit affirmed the jury verdict and damages award. The U.S. Supreme Court denied Defendant's petition for writ of certiorari. Prior to Defendant's payment of the judgment, Plaintiffobtained a preliminary and permanent antisuit injunction to prevent Defendant from availing itself of the SML in the Japanese courts. Defendant appealed to the U.S. Court of Appeals for the Eighth Circuit, which sets aside the injunctions.

The Court then explains its ruling. "The propriety of issuing a foreign antisuit injunction is a matter of first impression for our circuit. Other circuits having decided the issue agree that 'federal courts have the power to enjoin persons...