Justia U.S. 5th Circuit Court of Appeals Opinion SummariesArticles Posted in International Law
Retana v. Twitter, Inc.
Internet services and social media providers may not be held secondarily liable under the Anti-Terrorism Act (ATA) for aiding and abetting a foreign terrorist organization—here, Hamas—based only on acts committed by a sole individual entirely within the United States.In July 2016, plaintiff and thirteen other police officers were shot and either injured or killed during a tragic mass-shooting committed by Micah Johnson in Dallas, Texas. Plaintiff and his husband filed suit against Twitter, Google, and Facebook, alleging that defendants are liable because they provided material support to Hamas, a foreign terrorist organization that used Internet services and social media platforms to radicalize Johnson to carry out the Dallas shooting.The Fifth Circuit held, based on plaintiffs' allegations, that the Dallas shooting was committed solely by Johnson, not by Hamas's use of defendants' Internet services and social media platforms to radicalize Johnson. Therefore, it was not an act of international terrorism committed, planned, or authorized by a foreign terrorist organization. The court also held that defendants did not knowingly and substantially assist Hamas in the Dallas shooting, again because the shooting was committed by Johnson alone and not by Hamas either alone or in conjunction with Johnson. Therefore, the district court was correct in concluding that defendants are not secondarily liable under the ATA. The court affirmed the district court's judgment. View "Retana v. Twitter, Inc." on Justia Law
Smith v. Smith
Father filed suit under the Hague Convention, alleging that mother wrongfully removed their children from Argentina to Texas. While this appeal was pending, the Supreme Court held in Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020), that the correct approach to habitual residence is to examine the totality of the circumstances.The Fifth Circuit applied the totality-of-the circumstances standard established in Monasky to the district court's findings and held that the totality of the circumstances shows that the children did not habitually reside in Argentina. In this case, the district court found, among other things, that both parents and all the children were born in the United States and continued to be United States citizens; father's work contract in Argentina was at-will; mother continued to own property in Texas; the children attended an American school in Argentina; and none of the parties owned any property in Argentina. View "Smith v. Smith" on Justia Law
Vantage Deepwater Co. v. Petrobras America, Inc.
The Fifth Circuit affirmed the district court's order confirming a $622 million arbitration award. The parties are oil and gas companies incorporated in different countries, and the dispute arose from the Agreement for the Provision of Drilling Services (DSA). About two years into the DSA's term, Vantage and Petrobras executed the Third Novation and Amendment Agreement, which included an arbitration clause.As a preliminary matter, the court stated that it need not decide the issue of whether the appeal waiver was enforceable. On the merits, the court held that there was no public policy bar to confirmation of the arbitration award. In this case, the district court did not engage in inappropriate deference to the arbitrator's decision and the district court did not base its decision just on "mutual mistake." The court also held that Petrobras has not shown that the district court abused its discretion in denying the discovery motions. Finally, the court rejected Petrobras' motion to vacate the arbitration award. View "Vantage Deepwater Co. v. Petrobras America, Inc." on Justia Law
OJSC Ukrnafta v. Carpatsky Petroleum Corp.
In an international oil and gas dispute, this appeal challenges the order confirming a private tribunal award of $147 million. At issue was whether an allegedly undisclosed change in the place of incorporation of one party from Texas to Delaware means there was never an agreement to arbitrate.After determining that the district court had jurisdiction to resolve the lawsuit, the Fifth Circuit upheld the order confirming the arbitration award and rejected Ukrnafta's defenses under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The court held that Ukrnafta consented to the arbitration despite Carpatsky's twice identifying itself as a Delaware company, and thus its capacity defense under Article V(1)(a) failed; Ukrnafta's argument, under Article V(1)(b), that American courts cannot enforce the award because it was unable to present its case failed, where Ukrnafta has not identified anything about the arbitration that was fundamentally unfair; Ukrnafta's claims under Article V(1)(c) that the award exceeded the terms of submission were rejected; Ukrnafta's claims under the Article V nonrecognition factors were waived; enforcing the award would further American policy, rather than be contrary to public policy under Article V(2)(b); and Ukrnafta's manifest disregard defense failed. Likewise, the doctrine of claim preclusion would reach the same result with state law claims. View "OJSC Ukrnafta v. Carpatsky Petroleum Corp." on Justia Law
DeJoria v. Maghreb Petroleum Exploration, SA
This case arose from a foreign judgment in a Moroccan court levying over $100 million against plaintiff and his business partner. The Fifth Circuit held that an interim change in the Texas Recognition Act does not violate the state's constitutional ban on retroactive laws. Therefore, the retroactive law did not abrogate defendant's ability to seek recognition of the Moroccan judgment. Rather, it just gives a district court the ability to deny recognition if it finds the judgment was obtained in proceedings that were incompatible with the requirements of due process. The court also held that the district court properly followed this court's 2015 mandate and properly applied the new law. Therefore, the district court properly determined that plaintiff was denied due process in Morocco and thus had, and properly exercised, its discretion to deny recognition to the Moroccan judgment. View "DeJoria v. Maghreb Petroleum Exploration, SA" on Justia Law
Hernandez v. Mesa, Jr.
Following remand from the United States Supreme Court, the Fifth Circuit held that this case was not a garden variety excessive force case against a federal law enforcement officer. Plaintiffs alleged that a law enforcement agent used deadly force without justification against a fifteen year old boy, violating the Fourth and Fifth Amendments, when they fatally shot him across the United States-Mexico border. At issue was whether federal courts have the authority to craft an implied damages action for alleged constitutional violations in this case under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). The court noted that no federal statute authorizes a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer under these circumstances. The court held that the transnational aspect of the facts presented a "new context" under Bivens, and numerous "special factors" counseled against federal courts' interference with the Executive and Legislative branches of the federal government. Therefore, the court affirmed the district court's dismissal of the case. View "Hernandez v. Mesa, Jr." on Justia Law
Ontiveros Soto v. Contreras
The Fifth Circuit affirmed the district court's denial of defendant's grave-risk defense in plaintiff's action seeking return of their child to Mexico pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. The court rejected defendant's claims that the district court improperly used a heightened standard in making its rulings. The court held that the record demonstrated that the district court's reference to "objective evidence" did not compel ruling that the findings of fact were "based on a misconception of the underlying legal standard." The court also held that defendant failed to show that the district court "labored under" the mistaken "assumption that threats against a parent can never create a grave risk of harm to his or her children." View "Ontiveros Soto v. Contreras" on Justia Law
Brittania-U Nigeria, Ltd. v. Chevron USA, Inc.
Brittania-U filed suit against defendants for fraud, misrepresentation, and tortious interference with business relations arising out of a bidding process for oil leases in Nigeria. The Fifth Circuit affirmed the district court's denial of Brittania-U's motion to remand and the grant of defendants' motions to dismiss based on an arbitration provision in a confidentiality agreement between Brittania-U and Chevron. The court held that jurisdiction exists, and removal was proper, under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 9 U.S.C. 203. The court also held that the district court did not err in recognizing that the confidentiality agreement's arbitration provision delegated the question of arbitrability to the arbitrators. View "Brittania-U Nigeria, Ltd. v. Chevron USA, Inc." on Justia Law
Cartes v. Phillips
Father petitioned the district court to order mother to return their three-year-old daughter to Paraguay, where she lived with both parents from October 2014 to October 2016. The Fifth Circuit affirmed the district court's determination that Paraguay was the daughter's habitual residence and that mother had wrongfully removed her to the United States. The court held that the district court did not legally err in assessing the parties' shared intent about their child's habitual residence; nor did the district court clearly err in finding that they agreed that their daughter would habitually reside in Paraguay; and any purported evidentiary error was harmless. View "Cartes v. Phillips" on Justia Law
Geophysical Service v. TGS-Nopec Geophysical
TGS, a Houston company requested seismic data from Geophysical, a Canadian company, under Canada's law that requires companies who gather seismic data about the Earth's substructure to submit their findings to the Canadian government. After a period of confidentiality, the Canadian agency that compiled this data was then apparently permitted to release it to members of the public upon specific request. Geophysicial then filed suit against TGS, alleging copyright infringement. The court held that the act of state doctrine does not forbid a United States court from considering the applicability of copyright's first sale doctrine to foreign-made copies when the foreign copier was a government agency. The court also held that the inapplicability of the Copyright Act, 17 U.S.C. 101 et seq., to extraterritorial conduct barred a contributory infringement claim based on the domestic authorization of entirely extraterritorial conduct. Accordingly, the court affirmed in part, reversed in part, and remanded. View "Geophysical Service v. TGS-Nopec Geophysical" on Justia Law