In Re: Automotive Refinishing Paint Antitrust Litigation Basf Ag and Basf Coatings Ag

V. appeals parties’ will dismiss

We the District Court’s decisions

from all of District Court’s except

this case attorneys’ reasonable

determination District Court’s will vacate the

fees. We attorneys’ and re- fees

determination in accor- proceedings further

mand for taxed opinion. Costs

dance with

against appellants.

In REFINISHING re: AUTOMOTIVE

PAINT ANTITRUST

LITIGATION Coatings AG and

BASF BASF Appellants.

AG,

No. 02-4272. Appeals, Court of

United States

Third Circuit.

Argued Dec.

Filed: Feb.

Stephen (Argued), Fishbein Shearman & York, Madeira, Sterling, New Edward W. Jr., Hamilton, Matthew J. Hamil- Pepper ton, Just, Philadelphia, Raymond A. Shear- Francisco, Sterling, man & for Appel- San lant. Hazard,

Geoffrey (Argued), C. Jr. Uni- School, versity Pennsylvania, The Law Rodos, Barrack, Philadelphia, Gerald J. Bacine, Philadelphia, Rodos & Warren Gross, Rules of Procedure with- M. the Federal Civil Rubin, of Bernard Law Offices Kohn, resorting Robert J. out first Conven- Joseph Philadelphia, C. Kohn, Graf, Taking Abroad LaRocca, Philadel- tion on Evidence Swift & Columb, (Hague Honik & or Commercial Matters Con- I. Civil phia, Langer, Howard Convention). 23 U.S.T. Appellees. vention Philadelphia, for Langer, § reprinted in 28 U.S.C. 1781 Note. Aron- Hangley, Hangiey, T. William Pudlin, for chick, Philadelphia, Segal & motions to The District Court denied the Ind. Fedr. German Amicus-Appellant, jurisdiction for lack of personal dismiss joint protective and the motion for a order Paxson, Rodgers, Dilworth James J. by corporations, two German BASF filed Fed. Philadelphia, Amicus-Appellant, for (BASF AG) BASF Aktiengesellschaft and Germany. Republic (BASF Aktiengesellschaft Coat- Coatings ROSENN, ROTH, McKEE, (collectively and ings) “appellants”), Before defendants Judges. underlying The litigation. Circuit in the antitrust 12 of the

District Court construed Section Clayton authorizing OF THE COURT Act as worldwide ser- OPINION specif- process independently vice of ROSENN, Judge. Circuit provision in that stat- ic venue contained aris- interlocutory appeal, This certified personal The also ute. held alleged price-fixing ing out of unlawful corporations over the foreign foreign corporations, both domestic be measured on contacts with would their impor- questions of considerable raises whole, States as a rather than United involving for- litigation in antitrust tance finally the forum state. The Court with are of eign nationals. Three of the issues rejected favoring a rule first resort The first impression first this Court. jurisdic- Hague Convention for pro- service of issue is whether worldwide discovery of foreign tional defendants. cess authorized under Section timely ap- and BASF Coatings BASF AG Act, 22, upon foreign 15 U.S.C. pealed. We affirm. independent specific corporations in that statute. venue contained I. federal The second issue is whether a foreign underlying over a antitrust class personal court’s litigation involves actions filed corporation litigation sixty-three antitrust states, corporation’s Pennsylvania, Jersey, predicated foreign five New Ohio, Delaware, Kentucky, by private as a whole contacts with the United States (national rather than Those transferred analysis), parties. contacts actions were to, in, the court and consolidated specific forum in which the United States (local final analysis). The District Court for District of sits contacts the Eastern jurisdictional discovery pre-trial Pennsylvania purposes issue is whether Litigation.1 under Panel on may proceed from nationals Judicial Multidistrict Inc., defendants, ap- Coatings, corporation; to the two a U.S. and BASF 1. The addition here, Industries, Inc.; Corporation, corporation E.I. a U.S. based in pellants are: PPG Company; Jersey, part DuPont BASF de Nemours New which is DuPont Inc.; Group, global Coatings, corporations Sherwin-Wil- Performance network of liam, Co.; corporations, Fin- Automotive include the two German which Sherwin-William the, only interlocutory Corporation; Car Refinish- are ishes Akzo Nobel in this B.V., appeal. company; a Dutch Akzo Nobel ers complaint alleges discovery.2 response action In plaintiffs’ class 31, 2000, request 1993 to at least December from discovery, foreign and domestic defendants con- joint appellants filed motion protec- for a prices raise and maintain the spired order, contending tive plaintiffs’ throughout paint refinish automotive request overly was broad and defendants, except States. All United They argued burdensome. also that to certification appellants, stipulated jurisdictional discovery proceed should consisting national class of all direct of a Hague Convention, first refinishes from purchasers automotive which the States and Germany United the defendants. signatories. appellants filed to dismiss The motions proffered The reasons appellants’ the to Proce- pursuant Federal Rule of Civil Reufels, expert, Martin were that Germa- 12(b)(2) jurisdic- for lack of personal dure States, ny, unlike the United the viewed In of to dis- support tion. their motions judicial, evidence gathering of as rather miss, appellants the' affidavits submitted Therefore, than private, function. Germa- stating did not have in presence ny sovereign had a keeping interest Pennsylvania of never sold the state and discovery conducted within its borders any refinish cus- paint automotive conformity with its laws. According in Pennsylvania. plaintiffs The re-

tomers Reufels, compelling appellants the pro- that the for plied appropriate forum meas- pursuant duce documents to the Federal appellants’ purposes the uring contacts for Rules of Civil Procedures would offend jurisdiction United personal of is the Germany’s sovereign interests. whole, as a the forum States rather than Pennsylvania. plaintiffs op- of The state In its and careful accompanying order the and posed motions to dismiss also Court, Surrick, J., opinion, District the jurisdictional requests served prejudice denied appellants’ without the pursuant the Federal Rules Civil Rejecting motions to appel- dismiss. the Procedure, seeking production of docu- contrary arguments, lants’ the Court con- concerning appellants’ ments the contacts Clayton strued Section asAct with the United States as a whole. authorizing process worldwide service of independently specific the venue plaintiffs provi- avail- publicly The submitted in that sion contained statute. The able information to show a threshold case relevant forum jurisdiction purposes held that the personal ap- based jurisdiction pellants’ proof personal contacts with the United States was whole, request jurisdictional their United as a rather than the States following Jersey; publicly District Court noted the facts AG’s The BASF released docu- plaintiffs: appellants submitted approximately $1.5 that it sold ments show patents of numerous the United the holders wholly goods to its billion in owned subsid- States; documents, publicly in its released 2000; iary, Corporation, according BASF as the forms filed Securities and such with the website, "sig- Coatings BASF to BASF's has a Exchange reports, Commission and annual America”; positionf ] nificant market in North site, presents its web BASF AG itself as Coatings maintains an BASF office in Michi- part globally integrated group, of a BASF or according gan; to BASF AG’s2001 annu- AG, Group, consisting BASF of BASF report, Group explicitly al BASF endorses corporation parent group and its in the "exchange Group among of staff BASF subsidiaries; AG consolidated BASF owns achieving companies” being as "critical” in percent Corpora- of the shares of BASF corporate goals. its worldwide tion, corporation a domestic in New located II. Pennsylvania. The Court forum state had made a plaintiffs concluded appellants The raised by first issue showing personal threshold distinct, conceptually though involves two discovery.3 that warranted intertwined, sub-issues. One is whether and accompanying separate In a order ruling the District Court erred in the appellants’ opinion, the Court denied provision process service of contained requir- order joint protective for a motion indepen- Section 12 of the Act is jurisdic- their conduct plaintiffs dent of venue contained also discovery first tional in that statute. Two is whether the Court procedures, rather than .the erred in antitrust ruling Procedure. Federal Rules of Civil litigation, personal should be appellants’ assessed on the basis of the and this Court Both the District Court United as a whole contacts with the States petition for inter- granted appellants’ (national analysis), -rather than contacts to 28 locutory appeal pursuant U.S.C. (local analy- forum state contacts 1292(b). raise two issues sis). sub-issues The two are intertwined interlocutory appeal. for review specific no limita- because if there is venue plaintiff may issue is whether first involving in litigation tion antitrust federal of process the service invoke worldwide defendant, a foreign corporate the defen- 12 in Section provision contained any dant can be. sued federal district thus, and, national Clayton Act contacts aggregate court based on its contacts with satisfying the analysis, specific without the as a United States whole. Because contained that stat- venue also ap- the because plain- The is whether a intertwined ute. second issue pellants present single integrat- them as a jurisdictional may permitted tiff to seek be issue, together.5 ed we discuss them from defendants under Civil Procedure with- the Federal Rules of A. resorting out first Conven- 12 of Act agree Clayton tion. We with the District Court the Section provides: affirmative.4 and answer the both (sec- Act) appealed §§ man and 15 U.S.C. and 26 3. The have not from 15 Act). ruling plaintiffs have a Court’s shown We that tions 4 and 16 of the jurisdiction. prima personal Ac- facie case of appellate jurisdiction 28 U.S.C. under ruling. cordingly, we do not review 1292(b) interlocutory § appeal. over this Be- may discovery, plaintiff a a defeat "Prior appeal cause the issues involve certified legally based on sufficient motion dismiss law, pure questions we review the District Magnetic In re allegations jurisdiction.” rulings de Court's novo. Bowers v. National Litig., F.3d Audiotape Antitrust Ass'n, Collegiate Athletic 346 F.3d Cir.2003). (2d rejected District Court (3d Cir.2003). jurisdictional arguments plaintiffs’ Corporation, wholly contacts BASF Support 5.The the Antitrust Committee AG, subsidiary of owned domestic BASF Laws, corporation nonprofit in the a based imputed be BASF AG and that the should Columbia, has an ami- District of submitted appellants' al- contacts plaintiffs' cus curiae brief in co-conspirators imputed leged be should position on the two certified The ami- issues.. appellants. support, appellants’ cus curiae briefs position, Republic Federal submitted original ques- has federal The District Court Germany German In- Federation of subject tion matter under dustries, address certified is- brought § do not. first this class action U.S.C. over (section § 1 of Sher- sue. under 15 U.S.C. suit, action, Any proceeding or process contained the second clause. As explained by one court: against corporation the antitrust laws may brought only judicial be in the dispute [t]he ju- centers on whether the inhabitant, district whereof it is an risdiction provision operates but indepen- dently any may provision, also in district wherein it from the venue be specifi- cally, business; whether “in such found or transacts cases” in pro- and all second “any suit, action, clause refers to may in such cess cases be served in the or proceeding under the antitrust laws inhabitant, district of it an which is or against a corporation” to anti- it may wherever be found. trust against actions corporations added).6 (emphasis § U.S.C. brought judicial in a district in which the corporation “inhabitant,” is either an sentence, long Section consists of two “may be found” or “transacts business.” clauses, separate relating the first to venue If the first interpretation is adopted, concerning and the second pro- service of plaintiffs 1391(d) rely can on 28 U.S.C. and, therefore, jurisdiction. cess personal [the Alien Venue which pro- Statute] undisputed It the second clause vides for venue in antitrust actions nationwide, worldwide, authorizes indeed against foreign corporations “in dis- process service of on a corpora- defendant trict” and on the second clause of Sec- tion litigation. antitrust tion 12 personal over provides clause may defendant be defendants based on a minimum con- found,” is, served “wherever it analysis tacts considering their contacts See, wherever it is “doing e.g., business.” with the United States as a If whole. Go-Video, Co., Ltd., Inc. v. Akai Elec. the interpretation second prevails the (9th Cir.1989) (Section 1406, F.2d 1413 12 service provision when, is effective “authorizes process”). worldwide service of pursuant clause, to Section 12’s first the parties The dispute whether the two action is brought a district where the resides, clauses of 12 Section should be read as an defendant is found or transacts integrated whole or business. independently of each Specifically, they other. dispute whether Magnetic In re Audiotape Litig., Antitrust the venue contained in the first 179, (S.D.N.Y.2001), 171 F.Supp.2d 184 va clause 12 of Section must be satisfied be- cated grounds, sub nom. on other Texas plaintiffs fore the could avail themselves of Magnetics, Int’l Inc. v. Aktienge BASF the 738, authorization of worldwide of sellschaft, service 31 Fed.Appx. 2002 WL permits (D.Nev.1980); any 6. Section 12 venue in federal Grappone, 1128 Inc. v. Suba corporation district in ant,” Inc., which is an ''inhabit- F.Supp. ru America. 403 123 of "found,” may be or "transacts busi- (D.N.H.1975); Friends Animals Inc. v. of Those ness.” terms are defined as follows: Ass'n, Veterinary American Medical 310 Being an "inhabitant” is held to mean in (S.D.N.Y.1970). F.Supp. 620 corporated jurisdic under the laws of that Co., Bucyrus-Erie Gen. Elec. Co. v. 550 E.g., Manufacturing tion. Aro Co. v. Auto 1037, (S.D.N.Y.1982). F.Supp. 1041 n. 5 A 400, Body mobile Corp., Research 352 F.2d corporation "pres- is "found” where it has (1st Cir.1965), denied, 404 cert. 383 U.S. ence” and "continuous local activities” in the 947, 1199, (1966). 86 S.Ct. 16 L.Ed.2d 210 Systems, district. Caribe Trailer Inc. v. Puerto Being generally equ "found” in a district is Auth., Shipping F.Supp. Rico Maritime 475 there, "doing ated with business” re 711, (D.D.C.1979) Fox-Keller, (quoting 716 quires greater contacts than does "transact Sales, A., Inc., Toyota Inc. v. Motor U.S. 338 E.g., business.” Woodv. Santa Barbara 812, (E.D.Pa.1972)). F.Supp. 815 Commerce, Inc., Chamber F.Supp. 507 of 294 2002). (2d cases; The in antitrust and invo- process March of Cir. nationwide clause liti- cation service dispute present whether the

plaintiffs satisfying provision. brought in a federal rests venue can gation only be appellants are “resi- where the district at 1350. Id. “found,” dents,” may or “transact[] be “aligned” The GTE court itself on their contacts with

business” based forty position taken the Second Circuit They contend forum district or state. Goldlawr, Heiman, ago in years Inc. v. district brought it be (2d Cir.1961) (holding in 288 F.2d “minimum con- appellant’s based expansive process dicta service States as a whole. with the United tacts” contingent provisions was on satisfaction Appeals provision), oth Currently, specific Courts of venue rev’d on two sister grounds, er 369 U.S. as to construction Section differ (1962).7 court rely on decision L.Ed.2d The GTE The plaintiff-appellees Ltd., Go-Video, Co., construction Akai claimed its of Section v. Elec. Inc. Clayton (9th Cir.1989), Act was result of a majori and a 885 F.2d lan “plain” reading or “unadorned” of the ty opinions of recent District Courts’ statute, guage implied argument their the service court’s was the re Go-Video construction independent process provision GTE, of “literal sult convolutions.” On the other specific provision. venue hand, rely on the decision Inc. v. Bell GTE New Services Media court did not find the Go-Video (D.C.Cir.2000), Corp., F.3d 1343

South un language of clear or Section where Court wrote: Go-Video, ambiguous. 885 F.2d at 1412 analy plain, (quoting Judge linguistic of the statute is Stewart’s language syntactic clear: The clause meaning its seems sis structure of Section Co., supple- Bucyrus-Erie to a Elec. v. before relates Gen. Co. semicolon (S.D.N.Y. F.Supp. venue actions under 1042 n. 7 mental basis for 1982), Act; necessarily his endorsing the clause after the without analysis).8 own relying to nationwide service Instead on its semi-colon relates privilege given only concluded that Section service is when the 7. The Goldlawr court requirements other are satisfied. 12 Goldlawr, at 581. 288 F.2d against corporation a specifies suit where Judge wrote that rules of Stewart "the usual may brought, laws be antitrust syntax” Sec- would favor the of construction namely, an inhabit- in a district where it is process tion 12 that the service of clause is may or where "it be found ant and also independent the venue of clause: Conversely, it should transacts business.” word means aforemen- The tioned,” "such” “the corporation a not an inhab- follow if is Third Dic- Webster’s International in, of, found and does not itant is not Thus, (unabr. ed.1963). tionary when district, in, may suit transact business precedes a noun to "such” it is assumed By brought. statutory grant if be so a and particular refer to antecedent noun prescribed brought as in this section suit is any dependent adjective adjectival or claus- process cases served in "all such in noun, modifying that to other es but not (the corporation) district it is of which part preceding of sentence. clause or inhabitant, may be an or wherever it Applying rule to "in such section Thus, cases,” Congress such found.” "in suit, action, "any cases” would refer to enlarge of the has seen the limits fit against proceeding under the antitrust laws pro- otherwise territorial areas of restricted corporation,” anything a and not to else words, In the extraterritorial cess. other section 12's first clause. way reading language management of of the of Section litigation.”); Adjust Prof'l did, 12, as the GTE court America, Go-Video ing Systems Inc. v. Gen. Ad it necessary “interpret court found Bureau, Inc., justment F.Supp. passage which antecedents and conse- (E.D.Pa.1972) (“The reason for the quents are unclear reference to the scope broad Clayton Act pro venue purpose context and the statute as a give visions was to plaintiff the widest whole.” Id. The Go-Video court did not possible benefit, selection of venue for his sparse history find the legislative promote a ‘private attorney general’ Act Clayton conclusive on the issue. 885 type policy for exposing and policing com evidence, F.2d at 1410. There was howev- trade.”). binations restraint of In light er, “Congress questions viewed the of of the authority comment, above process venue and service of separately, Go-Video court found itself “reluctant to the latter subsidiary impor- with issue of adopt a construction of section 12 which tance.” Id. would, by limiting availability The Go-Video court it help- found more valued tool of process, worldwide service of rely ful general interpretation recast its restrictive, venue as a given that courts have Section Id. rather than a broadening, provision and “[C]ourts viewed section’s main might prevent plaintiffs from pursuing le contribution to expansion be its gitimate claims under the antitrust laws.” (citing bounds venue.” Id. United 885 F.2d at 1410-11. Am., Scophony Corp. States v. 333 U.S. The Go-Video court also relied on the 795, 806-808, L.Ed. 1091 Supreme Court’s case regarding law (1948) (Section broad, prac- substituted relationship between federal venue stat- tically-founded older, venue tests for the of general application utes specific “hairsplitting legal technicalities” of the venue provisions contained in individual Act); Wright, Sherman Miller & Coo- statutes to its holding that Procedure, per, Federal Practice provision for worldwide service of process (1976) (venue provisions 109-10 independent of the specific provi- venue Clayton Act “clearly broadening were sion Section 12 of the Act. effect”)).9 “[A]s Paper Systems, [their] See also matter, general interpreted courts have Corp., Inc. v. Mitsubishi F.Supp. (E.D.Wis.1997) (“In special provisions venue supplement, the case of the laws, preempt, general rather than antitrust it makes no venue stat- sense to tie a district utes.” (citing Wright court’s Id. at 1409 state & sits; 108-109) Miller, which it promotes it neither supra, (“Supreme the en- forcement of the antitrust laws nor the Court has special held that venue statutes Bucyrus-Erie, F.Supp. 550 at Congressional 1042 n. 7. persons enactment "relieve[s] injured through corporate violations the of Supreme Court noted in United 9. As the insuperable antitrust laws from the 'often ob- 795, 808, Scophony Corp., States v. 333 U.S. resorting stacle’ of to distant forums for re- 855, (1948), 68 S.Ct. 92 L.Ed. 1091 the third wrongs places dress of in the done of their prong ''transacting] and final of business” in foreign corporation business residence: A no by Congress Section 12 was enacted district, longer perpetuate could come to a purpose enlarging juris- remedial the venue outlawed, injuries by there the and then re- by substituting diction of the federal courts treating retreating or even without to its “practical, conceptions previ- business for the headquarters delay defeat or the hairsplitting legal retribution ous technicalities encrusted Id. 'found’-'present’-'carrying-on-business' due.” Id. The Court noted that sequence....” the provision might as] are to in ue be read by, and be read otherwise supplemented of, gen- 713, liberalizing provisions Id. at 92 S.Ct.

light replace.” intended to statutes”) 1391(d) (citing Pure Oil v. Rather, venue eral Section derives 1394, Suarez, 202, 86 S.Ct. 384 U.S. going begin from tradition “back to the (1966)). L.Ed.2d 474 ning Republic” of the which “suits unrestricted, and against aliens were left to the relevance Go-Video particular Of district, subject only any could tried in the Supreme court was Court’s discussion requirement process.” of service of the Alien Ven relationship of the between at Brunette 1391(d), Id. 92 S.Ct. 1936. “The Statute, § a venue ue U.S.C. (cid:127) 1391(d) § ‘a interpreted court to state general applicability, and the provision principle overriding applica of broad and specific provision, venue U.S.C. 1400(b), concerning patent § actions for prevented tion’ which an alien defendant Works, infringement, in Brunette Mach. in using provision from a narrower venue ” Inc., Indus., Ltd. v. Kockum U.S. against another statute as a ‘shield suit.’ (1972). The 32 L.Ed.2d 428 92 S.Ct. Go-Video, (citing at Bru 885 F.2d 1409-10 specific ven Supreme Court held nette, 1936). 714, 92 “Absent at S.Ct. provision ue not bar suit under did congressional some intent to the express which venue had been satisfied under Sec contrary, special venue should provision 1391(d), Statute, tion the Alien Venue even not, clear of Brunette language under the though previously the Court had held exclusively controlling be deemed when did patent preclude the same venue statute the defendant involved an alien. is general application corporate of the principle that an alien be sued 1391(c). Brunette, venue to as simply deeply district is too rooted 713-14, (distinguishing Four 92 S.Ct. 1936 sume Bucyrus-Erie, otherwise.” Corp., co Co. v. Transmirra Prods. Glass Brunette, F.Supp. (citing at 1040 1 L.Ed.2d 786 353 U.S. 1936); Go-Video, at 1410. see also (1957)). approach and 1391(d) Go-Video like general is not other

Section Bucyrus-Erie convincing courts Brunette provisions. venue held 1391(d) well reasoned their construction Sec “Section is not derived from the We, therefore, special tion 12 venue ven- Act.10 general [a statutes 10. We are not is, by corporations domestic persuaded contrast conclusions and Goldlawr courts for by 1391(d)] GTE drawn alien governing corporations, [§ by the Go-Video the reasons discussed more satisfy [S]ection difficult than First, Bucyrus-Erie we courts. because do Bucyrus-Erie, requirements.” venue language clear not find the of Section to be added, (first F.Supp. emphases at 1041 two unambiguous, persuaded we are emphasis original). That is be last reading '‘plain” or "unadorned” prong "transacting cause added busi We, the GTE court. statutory language satisfy ness” 12 is than in Section easier therefore, necessary con believe that it is prongs being the traditional an "inhabit purpose of the statute sider overall "doing Id. ant” business.” at 1041 n. 5 Second, language. construing statutory (" 'doing requires greater ... con business' agree analysis we with made several "). 'transacting tacts Be does business' then District Courts’ decisions that the conclusions cause Goldlawr did not an alien cor involve persuasive of GTE and Goldlawr are not be court, the Goldlawr poration, surprisingly, corporations cause the in those two defendant impact did not need to consider were, corporations were not and cases alien 1391(d). general provision § As the venue instead, corporations. The dis out-of-state observed, the Goldlawr Go-Video court general provi tinction is "The venue crucial. unpersuasive regarding court's conclusion is 1391(c)] governing § sion of U.S.C. such [28

297 Video, process provision that the service of hold 885 F.2d at (affirming 1415 of, foreign corporations independent is District holding Court’s that “worldwide of, require and does not satisfaction § provision justifies service 12 its con- specific venue Section personal jurisdiction clusion that may be Clayton of the Act. district, any established in given the exis- contacts”). tence of sufficient national B. We find for our construction of reject appellants’ argument We also Clayton Section inAct the courts’ per that the District Court does not have construction of Section 27 of the Securities jurisdiction sonal over them because Exchange section, Act of 1934. This mod- do not have contacts with the State of Act, eled after Section 12 Clayton instance, Pennsylvania. Pennsylva In this provides in relevant part: nia is the forum underly state because the Any suit or action any to enforce liability ing class actions have been transferred duty created this chapter or rules pretrial and consolidated for purposes.11 thereunder, regulations and enjoin or to Appeals At least two sister Courts any violation of chapter such or rules jurisdiction personal held when is in regulations, may brought any Act, Clayton under the voked such district or in the district ivherein is based on the defendants’ contacts with is or is an inhabit- defendant found the United States as a whole. Access business, ant or process transacts Telecom, Inc. v. MCI Telecomm. Corp., in such cases be served in (5th Cir.1999), 197 F.3d cert. de other district of which the defendant is nied, 531 U.S. an inhabitant or wherever the defendant (2000) (“When jurisdiction L.Ed.2d 200 is may be found. Act, invoked under the the court added). § examines the U.S.C. 78aa (emphasis defendant’s contacts with the United States as a two sections remarkably whole determine similar in requirements whether the process provisions due their for venue and service of met.”) Go-Video); (citing have been process.12 Go- relationship Pennsylvania only of venue and un pretrial action in is "First, purposes pursuant der Section 12 for two reasons. to 28 U.S.C. 1407. As Court, regard] correctly [Goldlawr’s conclusion in this is dic concluded the District tum, holdings unrelated personal juris to the actual transferee court can exercise Second, important, case. and more Goldlawr diction to the same extent that the transferor Supreme was decided Agent Orange before the Court’s deci court could. See In re Prod. Brunette, (2d Liability sions in Pure Oil and Litig., decisions in 818 F.2d Cir. 1987); Inc., Supreme which the Pacing Systems clarified the rela In re Telectronics tionship (S.D.Ohio 1997). specific statutory pro F.Supp. between venue Even un general personal juris visions and the federal venue analysis, statutes der the local contacts Go-Video, corporations]....” [for alien diction should be assessed at least based on reasons, appellants’ F.2d at 1411. For the same the GTE contacts with the five states holding, which involved out-of-state brought, do where the individual were actions Ohio, corporations, Delaware, unpersuasive. Jersey, mestic Kentucky, New Pennsylvania. Underlying appellants’ argument See, Go-Video, 1414; analysis assumption e.g., the local contacts is an 885 F.2d at Leas Maxwell, personal jurisdiction Processing Equip. court’s is limit- Data Corp. co v. (2d Cir.1972); ed to the state to which the class action has 468 F.2d 1340 n. 10 assumption Bucyrus-Erie, been F.Supp. transferred. That is unwar- at 1043. Constru Act, underlying Exchange ranted. Consolidation of the class Section 27 of the Securities

298 27, and, subject, construing prior opinions our on the

In the context of Section broadly that has “a federal this held consistent with several of our sister jurisdiction may be as- personal court’s a federal appeals, courts of hold that of the defendant’s na- basis jurisdiction may sessed as- personal court’s be plaintiffs claim tional contacts when on the basis of sessed the defendant’s authorizing statute na- rests on federal plaintiffs national contacts when the process.” Pinker v. tionwide service of claim on a federal authoriz- rests statute n Ltd., (3d 361, Holdings 292 F.3d 369 Roche service of process. nationwide Cir.2002). Judge Chief Becker Then Pinker, (emphasis original).13 369-70 in Pinker: wrote Yugan Ltd. See also Dardana v. A.O. spoken autho Congress has Where Cir.2003) (2d 202, skneftegaz, 317 F.3d 207 of ... rizing process, service nationwide (when personal over Act, juris it as has the Securities corporation is based essence of a court diction federal need not statute, long-arm process federal anal due defendant’s contacts confined ysis contacts involves with the United in which federal court state whole); States as a United v. Swiss States Magnificence v. sits. See DeJames Car (1st Bank, Ltd., 30, Am. 191 F.3d 36 Cir. Inc., riers, 280, (3d 654 F.2d 284 Cir. 1999) Barton, (same); v. 589 Fitzsimmons 1981). Following reasoning, the dis (7th 330, Cir.1979); F.2d 333 n. 4 Mariash courts this Circuit re trict within Morrill, (2d 1138, v. 496 F.2d 1142-43 that a “national peatedly held contacts Cir.1974) (service process of 27 of analysis” appropriate apprais “when Exchange Act requires Securities examina in a ing personal jurisdiction case aris tion of defendant’s contacts with the Unit ing under a statute that contains whole). ed States as a process of provi a nationwide service agree holdings with of We Inc. v. Blue Cross AlliedSignal,

sion.” foregoing Appeals our sister (D.N.J. Courts 34, Calif., 924 F.Supp. 36 our rationale of decision in Pinker 1996); see also Green v. William Mason (D.N.J.1998) similarly have construed the Sec Co., 394, worded F.Supp. & 996 396 (“[A]n tion 27 Act. Exchange of the Securities We personal jurisdic assessment of personal hold that in federal statutory provision tion under autho [a process] litigation antitrust is assessed on the basis rizing nationwide service ne aggregate of a inquiry an into the defendant’s contacts with cessitates defendant’s forum.”). holding with the United as a contacts the national We States whole. Our persuaded by reasoning appeal too are Pinker and on this is consistent 1320, court, Cir.1993); (6th Elec., Judge Friendly, writing 1330 Ra cpn- United phrase cluded that the "in such cases” in that dio & Mach. Workers v. 163 Pleasant Am. independent the venue 1080, 1992); statute is (1st F.2d 960 1085 Cir. Corp., St. "speaks pro expressly service of Vigman, 764 Corp. Sec. Investor Protection v. Leasco, (citing cess.” 1340 United States v. 1309, (9th Cir.1985), F.2d 1316 rev'd on other 795, 855, U.S. S.Ct. Scophony Corp., grounds, v. Sec. Protection Holmes Investor (1948)). L.Ed. 1091 U.S. Corp., (1992); L.Ed.2d 532 Corp. v. Autoscribe Gold Pinker, (citing Republic 292 F.3d at 369-70 Inc., WL at *3 Steinberg, man & Holdings (Luxembourg) v. Panama BCCI (4th 3, 1995) curiam) (not (per prec Feb. Cir. (11th Cir.1997); S.A., 119 F.3d 946-47 edential) (citing Hogue Engineer v. Milodon Buchman, & Busch v. Buchman O’Brien Law (4th Cir.1984))). Inc., ing, 736 F.2d (5th Cir.1994); Firm, 11 F.3d F.2d Liberty Ryan, Co. v. United Ins. Life Procedure, Federal Rule of Procedure al jurisdic Civil Rules of Civil 4(k)(2).14 jurisdiction Personal therein is discovery tional from foreign defendants not limited to the defendant’s contacts with in foreign signatory “host” nations. The particular judicial a district or the appellants argue discov person- forum state. hold further that We ery Germany, in a signatory Convention jurisdiction al under 12 of Section nation, proceed should first Act is as broad as the limits of due Convention procedures, rather than the process under the Fifth Amendment. See Federal Rules. The pre Go-Video, (“Under 885 F.2d at 1415 procedures by judi scribes certain which a process component due the Fifth cial authority one contracting nation Amendment, a court must consider wheth- may request evidence located another (i.e. er the maintenance of the suit nation. Supreme rejected Our a personal jurisdiction exercise over the first resort rule favor of the Convention suit) defendants to the offends traditional in a personal jurisdiction case where was play jus- notions of fair and substantial not contested and the sought tice”) (citing Capital Omni Int’l v. Rudolf involved the merits of the case. So Co., Ltd., 97, 102-103, & 484 U.S. Wolff ciete Nationale Industrielle Aerospatiale 404, (1987); 98 L.Ed.2d Int’l v. United States Dist. Court the S. 310, 316, Washington, Shoe Co. v. 326 U.S. Iowa, 522, 2542, Dist. 482 U.S. 107 S.Ct. (1945)).15 154, 66 S.Ct. 90 L.Ed. 95 (1987). 96 L.Ed.2d 461 argue specifically that we should out carve

III. exception a narrow Aerospatiale where, here, decision as personal jurisdic The second issue appeal certified yet tion has to be established and the adopt is whether we should a first resort discovery sought proof jur rule favor of the under the limited to Convention, rather than the Feder- isdiction.16 4(k)(2) (2d Cir.), denied, 948, 14.Federal Rule of Civil Procedure cert. 525 U.S. 119 S.Ct. provides: 373, (1998)). 142 L.Ed.2d 308 jurisdiction If the exercise of is consistent note, court, 15. We as did the Go-Video with the Constitution and laws of the Unit- Supreme Court has on two occasions ex- States, serving filing ed a summons or plicitly constitutionality declined to decide the effective, waiver of service is also with re- analysis. of national contacts See 885 F.2d law, spect arising to claims under federal (citing Capital n. 8 Omni Int’l v. Rudolf personal jurisdiction per- establish over the Co., Ltd., 5, & 484 U.S. 102-103 n. Wolff any subject son of defendant who is not (1987); 108 S.Ct. 98 L.Ed.2d 415 Asahi general ju- of the courts of Indus, Court, Superior Metal v. 480 U.S. any risdiction of state. n.*, (1987) 94 L.Ed.2d 92 provision, "Under this a defendant sued un (plurality opinion)). subject der federal law based on its contacts with the United States Republic Germany 16. The Federal and the whole, subject as a when the is not defendant Federation of German Industries sub- personal jurisdiction state. Rule mitted briefs as amicus curiae in 4(k)(2) personal jurisdiction confers over position appellants' for this second issue long jurisdic defendant so as the exercise urging appeal, reversal of the District comports tion with the Due Process Clause of Dardana, Court. The brief of amicus curiae submitted the Fifth Amendment.” 317 F.3d at Miller, (citing Wright Support the Committee to & Antitrust Federal Prac 1068.1, supports plaintiffs’ position, urging tice and Procedure Laws Dietrich, (2002); Chew v. 143 F.3d 27-28 affirmation of the District Court. procedures initiating before

A. Convention discovery Federal Rules. pursuant to our Hague the Aerospatiale holds that 542-44, 107 concept 2542. The Id. at S.Ct. provide exclusive does not Convention “a comity requires in this context more of obtaining for documents procedures analysis” respective particularized of the foreign located in a information signatory and the foreign of the host nation interests first re- territory. Aerospatiale nation’s nation a first re requesting than blanket or a rule of jects a rule- of exclusive use generate. would Id. at 543-44. sort rule in favor of as a matter of law first use situations, Aerospatiale many notes that in that nei- ground the Convention undu procedures would be Convention the negotiating language nor the ther the ly time-consuming and less expensive, support such history of the Convention likely produce to evidence than needed 533-36, at Aerospatiale, 482 U.S. rules. Id. at direct use Federal Rules. Aerospatiale Specifically, 107 S.Ct. 2542. . 542-43, However, the 107 S.Ct. 2542 plain lan- that holds Convention’s not procedures, although Convention’s pro- history well as of its guage, as mandatory, they are available whenever and ratification the United posal evidence, facilitate the of gathering will States, the con- unambiguously supports apply in the that are one sense per- a that it was “intended as clusion a seeking method of evidence that court preemptive a supplement, missive Aerospatiale Id. at de elect. 541. of obtain- replacement, for other means “as a that clines to hold blanket matter at located abroad.” Id. evidence comity requires Hague evidence resort to added). The (emphasis 107 S.Ct. 2542 procedure.” at convention Id. in non- preamble speaks Convention’s Therefore, 2542. the determination S.Ct. terms, purpose mandatory its specifying of whether to resort Convention discovery “improve “facilitate” and to “prior requires scrutiny each case judicial co-operation.” mutual Id. at facts, .interests, and particular sovereign uses Similarly, its text 107 S.Ct. effec prove likelihood such resort will not ex- permissive language, and does (establishing three-prong tive.” Id. contracting modify the pressly law determining to resort test whether speci- require or them to use states Convention). pro- change their own fied Aerospatiale acknowledges “both Convention Accordingly, cedures. Id- discovery in the Federal set forth rules deprive does not District Court its Rules of Civil Procedure and the order, the Federal are the Convention law of the United Procedure, na- Rules Civil at Id. 2542. How- States.” S.Ct. produce to the party proceeding tional ever, the Federal are “the normal Rules its ter- physically evidence located within involving litigation methods” 539-40, ritory. Id. at parties “option- foreign national unless the rejects rule of first Aerospatiale next a “supplemental” proce- al” or Convention favoring grounds resort Convention prove dures to be conducive to for the comity of international and respect under some circumstances. Id. (“the na- “judicial sovereignty” signatory was intended S.Ct. Convention located. sought pre- tion in which evidence not a permissive as supplement, 542-43, emptive replacement, 2542. Internation- for other means Id. S.Ct. abroad”) (em- comity obtaining in all instances evidence require al does not located (both added), 538, litigants phasis that American first resort S.Ct. history negotiating the text and risdiction. The appellants seek our review show that “it was intended to legal District Court’s conclusion optional procedures would establish the Aerospatiale holding applies abroad”) taking facilitate the of evidence equally to discovery. This (“the added), 541, (emphasis certified issue pure question involves a are avail- optional procedures Convention law, subject plenary to our and de novo they gath- able whenever will facilitate the review. ering of evidence the means authorized Specifically, the appellants argue that Convention”) added), 542, (emphasis in the Aerospatiale applicable jurisdic- is not to (“the normal methods of discovery tional and that this Procedure”) Court should the Federal Rules of Civil added). adopt a first resort rule favor of the (emphasis Hague Convention procedures based on rejection Notwithstanding its of the first comity considerations of international rule, Aerospatiale resort instructs respect for the sovereignty, German special American to vigi- courts “exercise host signatory nation where discovery is to protect foreign lance to litigants from the They be conducted. argue that the Aeros- danger unnecessary, unduly bur- patiale balancing approach premised is ex- densome, discovery may place them a pressly juris- of personal existence disadvantageous 546, position.” Id. at jurisdiction diction that case. Where supervision S.Ct. 2542. “Judicial of discov- established, ery always disputed yet should seek to and not they minimize its as- prevent costs inconvenience and to balancing approach sert the yield must to improper discovery requests. uses of a rule of first resort. necessary it is When to seek evidence The appellants split stress the of author- abroad, however, the district court must among ities federal district courts and supervise pretrial proceedings particularly regarding state courts the extension of closely prevent to discovery abuses.” Id. Aerospatiale jurisdictional discovery. Aerospatiale explicitly has not ad- Geo-Culture, They cite for Inc. v. dressed, however, party the issue of which S.A., Siam Inv. Mgmt. Or.App. bears the convincing burden of the court of (1997) (requiring plain- 936 P.2d an “optional” and “supplemental” use of jurisdictional tiff to conduct discovery, at procedures

the Convention in a particular initially, only through Hague least Aerospatiale, involving case. Nor has for- Convention, noting plaintiff had failed eign defendants over whom the trial court allege prima asserting facie basis jurisdiction, had undisputed personal ad- defendant); jurisdiction over the Jenco v. dressed issue of what Int’l, Inc., 86-4229, Martech No. Civ. A. case, here, jurisdiction follow a as where (E.D.La. at *1 May WL 54733 is contested and sought is limit- 1988) (holding, meaningful with almost no only proof jurisdiction. ed

analysis, that certain discov- B. ery requests must be made under “[wjhile Hague judi- Convention because appellants arg-ue the District economy may cial dictate that the Federal in extending Court erred the Aerospatiale used, Rules of Civil Procedure should be holding underlying to the litigation where jurisdiction protecting foreign the interests of liti- contested and the discovery sought ju- is limited to proof gant light jurisdictional problems (D.D.C.2000), Knight authority v. Ford a trial has court paramount”);17 jurisdiction. Co., Corp. 615 A.2d its Ins. N.J.Super. determine See Motor (1992) dicta, Ireland, v. Baux Compagnie Ltd. des (noting, n. 11 Guinee, 694, 706, a for- not exist over ites de U.S. jurisdiction does “[i]f (1982) may pro- (“By 72 L.Ed.2d 492 ... submit eign party obtaining ting evi- of the Court recourse for vide dence”). jurisdiction, purpose of challenging limited by that agrees the defendant to abide rely report also on a juris court’s determination on the issue of Con- Special Commission diction”). Because the Distinct Court has attended, others, by dele- among ference over these defendants from the States and Ger- gations United necessary to determine to the extent Hague on Private many. See Conference subject juris personal are whether Law: Commission Special International diction, legal we see no to exercis barrier Hague Operation on the Report by ing given the discretion to trial courts Evi- Hague and the Service Convention Aerospatiale jurisdictional cases of dis Convention, 1989, April reprinted dence Vitamins, In re at covery. See (1989). The 28 Int’l Law Materials as to report while views varied stated majority trial agree We Hague “occupied whether Convention decisions that be no courts’ there should applica- the field and therefore excluded holding for exception Aerospatiale rules,” procedural “the tion of domestic jurisdictional discovery. See In re Vita thought all Contract- Commission that in mins, 49; Inc., v. California, Rich KIS States, whatever views as to its ing their (Ae (M.D.N.C.1988) 121 F.R.D. be application, priority exclusive should any exception not rospatiale “did carve out procedures by offered given to jurisdic disputes involving personal for when located abroad Convention evidence tion”); F.R.D. Group, Fishel v. BASF The being sought.” is Id. at (S.D.Iowa 1997) (Aerospatiale in the appellants argue that the statement Hague proce that the provides Convention given report “priority” should optional are feder dures and do not divest entitled to sub- the Convention should be authority dis al district courts to order stantial deference. Rules); covery under the Federal In re Computer 114 B.R. 5-6 Corp., Bedford that Aeros- appellants The are correct (Bankr.D.N.H.1990) (citing Rich and allow makes references to the patiale numerous limited is jurisdiction in that personal existence of Rules). proceed Federal sues however, disagree, that the Ae case. We rospatiale holding dependent person Geo-Culture, is by relied on Unlike jurisdiction. by As the Dis al concluded al- appellants, plaintiff where the failed to trict here and District Court lege prima personal even a case of facie Columbia, jurisdiction, the District of which considered found that District Court argument prima the same here plaintiffs the same raised had established defendant, AG, personal jurisdiction, re a conclu- BASF in In Vitamins facie case Litig., challenged appellants. F.Supp.2d Antitrust sion ruling magistrate’s allow- portion 17. Jenco left overturned undisturbed magistrate’s opinion allowing interrogatories ing depositions to be Federal taken under the requests at a and document directed Rules. party proceed under the Federal Rules amounted, therefore, plaintiffs’ allegations “jurisdictional” discovery, predicated fishing expedi- than “mere blanket on a dichotomy to more false of having and not type having jurisdiction, tions” and were “not the of bare- amounts to no real dif- allegations potentially could boned ference because the court has fishing expeditions type lead to the obvious for either of discovery.18 The undis- signatory concern to the countries.” In re puted presence personal jurisdiction Vitamins, 120 at 50. F.Supp.2d is, therefore, Aerospatiale tangential to its holding and irrelevant to the issue of also relied on the Aerospatiale whether applies juris- also to challenge Federal Rules to the District discovery. dictional jurisdiction. personal Court’s As we have There are other supporting reasons our above, it is well stated established conclusion that the Aerospatiale balancing jurisdic power trial court has inherent approach applies equally to the determina- jurisdiction. tion to decide whether it has tion of whether Ireland, Corp. Ins. U.S. initially ju- should be used appellants’ arguments S.Ct. 2099. The First, discovery. risdictional where Aeros- premised assumption also patiale categorically rejected has a first no personal there is resort rule for discovery, “merits” which assumption premature case. an Such expect we can to be comprehensive more and unwarranted unless the result of the or jurisdictional jurisdictional burdensome than pending discovery shows oth discov- ery, justification there stage, reject erwise. At this where the is more to a appel voluntarily appeared lants have first resort rule for the more limited and challenge jurisdiction jurisdic jurisdictional court to less discovery. and intrusive See Fishel, (“The discovery pending, tional the District 175 F.R.D. at 529 ascertain- indisputably has to de bearing personal jurisdic- ment of facts jurisdic personal normally termine whether there is tion involves the least intrusive upon completion tion type inquiries.”). dis Moreover, covery. the denial of resort to Second, Aerospatiale rejected where has Hague jurisdic convention for though first resort rule even discovery tional is not unfair to the appel may French defendants there have faced they lants because advantage “[had] taken possible penal sanction under France’s allowing them a [Federal] [R]ule statute,” justifica- “blocking there is less preliminary hearing and determination of tion adopt for us to a first resort rule the issues raised their motion.” See appellants where the here face no such Fishel, 175 F.R.D. at 529. sanction Germany because has no “block- Accordingly, by ing the distinction drawn statute.”19 Aerospatiale reiterates the appellants between “merits” well-settled that “[blocking] view statutes dispute agreements applicable 18. No one would that if tional and laws and discovery yields no evidence sufficient to es- regulations, prohibited any party it is to personal jurisdiction, tablish the court must disclose, request, writing, orally seek or or underlying against ap- dismiss the action otherwise, economic, commercial, industrial, pellants, deciding than rather which set of financial or technical documents or informa- procedural apply. to rules leading to the of evidence tion constitution foreign judicial with a view to or administra- Aerospatiale, 482 U.S. at 526 n. proceedings tive or in connection there- (quoting S.Ct. 2542 Article 1A of the French with.”). statute,” "blocking French Penal Code Law 80-538) ("Subject No. to treaties or interna- American court rule the trial deprive not an because court has an inher- do subject juris- power party to order a its duty supervise discovery pre- ent though even produce abuse). diction to evidence vent discovery violate that stat- production the act their supporters ar at 544-45 n. ute.” 482 U.S. gue generally that Germany is a civil law “the (concluding enactment of country where the of evidence is gathering a a nation” cannot such statute judicial a pursuing function dis rule of “graft a first resort be allowed covery resort without the Convention Convention, or onto the otherwise may be Germany’s deemed an affront to country nationals of such a provide Court, sovereignty. Aerospatiale as courts”). in our preferred status with courts, argu well as other has found such nor their support- Neither the appellants “unpersuasive.” ment Id. at ers, Germany the Federation of or German 2542; Dredge see also Great Lakes & Dock Industries, disputed plaintiffs’ have v. Harnischfeger Co. Corp., WL France, Germany, unlike statement (N.D.Ill. 1990); *2 Sept.25, statute,” “blocking crimi- does have a GmbH, Scarminach v. Goldwell civil, prohibits nal specifically pro- Misc.2d N.Y.S.2d duction of documents connection with (N.Y.Sup.Ct.1988). As observed foreign judicial proceed- or administrative Vitamins, F.Supp.2d court in In re ings. single Nor identified a 50, there is no reason to that dis assume instance national has where German covery under the Federal would in Rules prosecuted, or sanctioned penalized, been evitably Germany’s sovereign offend inter complying under German with dis- law judi- presumably Germany, est covery orders from a United States because like States, proceeding cial or pursuant prohibit alleged administrative United would the to the Federal Rules. price-fixing conspiracy and would welcome investigation of such antitrust violation to Third, rejected has Aerospatiale where Germany’s the See Act fullest extent. adoption the of a blanket first resort rule 1; Against of Competition Restraints respect based on the reasons of proffered Treaty Establishing the European Eco “judicial sovereignty” of signa 81(1). Community, nomic Art. There is tory preventing discovery host nation and also no to “believe reason that the sover abuse, proffered by the same reasons eign ... na signatory interests of appellants here must fail as well. 482 U.S. by tions more would offended [the] 543-44, 107 (finding at no textu S.Ct. jurisdictional discovery than narrower Hague al Convention for a broader, by would be merits-related for opting first resort rule and a three- ” discovery Aerospatiale. allowed In re 545-46, prong balancing approach), Vitamins, F.Supp.2d that at 51. We like (suggesting burdensome or appellants’ wise discovery practice general intrusive is not a conclude suffi ground adopting argument is.unpersuasive.20 cient resort first Appellants especially supporters, supplement 20. and their al to the Federal Rules. We must Germany and the Federation In- reject German deviate from Aeros- their invitation dustries, controversial reasons, stress the character of patiale based on the same proffered Aerospat- majority” "narrow decision in Court, Aerospatiale found insufficient iale profess strong disagreement their comity pre- of respecting international Aerospatiale holding Hague venting discovery a subordinate abuse. As merely option- Convention an Similarly, following the Aerospatiale agree We first with the District holding, unpersuasive we also find the ap Court’s conclusion of law that appel argument that a pellants’ first resort to lants bear persuasion the burden of as to Hague required Convention is to avoid the optional use of the Convention proce possible or discovery burdensome intrusive dures. Aerospatiale, 547, See at U.S. practice under United law. States Aeros (stating S.Ct. 2542 the court 545-46, patiale, 2542; 482 U.S. at 107 S.Ct. give should foreign litigant “the a full and Lakes, see also Great 1990 WL fair opportunity to demonstrate appropri *2, Scarminach, 531 N.Y.S.2d at 191. ate reasons for employing pro Discovery abuse an insufficient reason instance, cedures in the first for some as to avoid the Federal Rules because the pects of the discovery process”) (emphasis appellants have remedies in the District added). This language seems imply Court to restrict abuse. We ex that the proposing party bears the burden pect the District Court will follow of persuasion. Vitamins, See also In re Aerospatiale’s instruction and “exercise 120 F.Supp.2d at 51-52 (holding pro special vigilance” protect appellants posing party burden); bears the Valois of unduly from burdensome abusive dis Am., Inc. v. Risdon Corp., 183 F.R.D. covery. Aerospatiale, at (D.Conn.1997) (same); Doster v. A.G., Schenk 141 F.R.D. 51-52 (M.D.N.C.1991) (“[I]t is practical, more if agree

We with legal the District Court’s logical, place the burden persua- Aerospatiale conclusion that the balancing proponent sion applies equally using test the Hague discov- ery Convention.”); Rich, and that there is no first resort rule 121 F.R.D. at 257-58 favor of the Convention procedures (same); Graphics Benton v. Uddeholm jurisdictional discovery. (D.N.J.1987) Corp., 118 F.R.D.

(same); but see Hudson v. Hermann Co., GmbH & 117 F.R.D. Pfauter C. (N.D.N.Y.1987); Knight, 615 A.2d The appellants argue also alterna agree We also with the District Court’s tively that if Aerospatiale even the balanc conclusions that the appellants have failed ing approach jurisdictional applies to dis satisfy to persuasion their burden of covery, three-prong the test would favor the Aerospatiale balancing test and that procedures first use of the Convention in the evidence on record disfavors the first rejected this case. The District Court use of the procedures juris- Convention for argument, ruling that the bore discovery. dictional The court’s conclu- persuasion the burden of under the balanc sions these two instances are reviewed satisfy test and that failed to the discretion, for abuse of and we find burden. The court concluded alternatively none. if plaintiffs even the bore the burden of persuasion, they had submitted ade quate evidence to show that balancing the IV.

test disfavored first use the Convention reasons, procedures For foregoing the the orders of this case. the District Court certified for review

court, by Supreme we precedent. are bound the Court's an I believe unnecessary “option.” affirmed. tion as interlocutory appeal will be be reex- Aerospatiale the decision should appellants. taxed the against are

Costs to ensure courts are amined that lower exercising “special protect to vigilance fact ROTH, concurring.21 Judge, Circuit re- foreign litigants” demonstrating ROTH, Judge. Circuit ex- spect sovereign “for interest con express my separately I write by the state.” Id. pressed has been Hague Convention Currently, cern I fear that 107 S.Ct. Supreme the short shrift since given many discarding courts are simply In decision Nationale an treaty unnecessary Court’s Societe as hassle. Aerospatiale v. United States dustrielle colleague, Joseph F. sage Judge Our District District Court the Southern Weis, Jr., opined resort has that first Iowa, 482 U.S. 107 S.Ct. Hague appropri- in fact Convention is (1987). provi L.Ed.2d 461 The service ate: were Hague sions of the Convention arguments against giving mustered approved adopted President are priority Convention vote in 1972. a unanimous of the Senate persuasive not when balanced provisions Id. at 107 S.Ct. 2542. interests, inter- overriding national and land,” coexist then became “law of the national, implementa- in more effective other law such as ing with It tion of the Evidence Convention. Rules of Procedure. U.S. Federal Civil all, remembered, after should VI, cl. Aerospatiale, art. 2. In Const. treaty negotiated by the United a referred to as Hague Convention was is for signatories States and other supplement” “optional and an “permissive private litigants the benefit of as Id. at procedure.” expense whole—some inconvenience or only as Hague However Convention to an individual not suf- litigant should Federal “optional” deciding as to use the jeopardize which arrangement fice an “optional” in a case. The Rules is such many. Moreover, through rati- benefits does the Federal not overwrite fication, agreed the United has States Procedure, in no of Civil but it is Rules treaty honor the commitments which the way inferior to them. judiciary light- contains. The should private ly permit litigant to undermine Unfortunately, language I believe express policy. national unintentionally Aerospatiale used has Weis, Jr., F. Rules Joseph The Federal compounded problem inherent with and the Conventions: Concerns judges that “relatively few Convention: L. Conformity Comity, 50 U. Pitt. internation- experienced the area [of 1989). (Spring, Rev. procedures foreign legal al law] systems are often understood.” poorly Judge Weis’s view mirrors the conclu- Aerospatiale, 482 Special US. sions of Commission (Blackmun, J., Many 1989, that, dissenting). Hague April Conference of times, than mire through rather the views of as to delegates wade whatever rules, complex procedural of a set of statutes and of domestic application law, given judges “priority the Conven- should be marginalize case Judge McKee concerns ex- ion. shares concurring opin- pressed joins herein and offered the Convention when evidence being sought.” Hague

located abroad of Private International Law:

Conference

Special Report Opera- Commission Hague

tion of the Service Convention and Convention, Hague April Evidence in 28 Int’l Law Materials reprinted (1989). Among delegates meeting Special

the 1989 Commis-

sion was one from the United States. recognize

I that we are bound Aeros-

patiale I believe that it is time for but

Supreme Court to revisit that decision—

particularly perceive because I many

of our “spe- courts have not exercised the vigilance protect foreign litigants”

cial Supreme anticipated.

Finally, precedent under the of Aeros- I

patiale, oppose panel’s do not conclu-

sion that of persuasion burden lies party advocating the use of the world, In an

Hague Convention. ideal

however, treaty if given were to be

priority to which its status as a ratified it,

treaty I entitles do not believe that the

burden of persuasion should lie with the

proponent proce-

dures. EVANS, Plaintiff-Appellant,

Robert S.

v. LIFE

METROPOLITAN INSURANCE

COMPANY, Defendant-Appellee.

No. 03-1065. Appeals,

United States Court of

Fourth Circuit.

Argued: Dec.

Decided: Feb.

Case Details

Case Name: In Re: Automotive Refinishing Paint Antitrust Litigation Basf Ag and Basf Coatings Ag

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 13, 2004

Citation: 358 F.3d 288

Docket Number: 02-4272

Court Abbreviation: 3rd Cir.