Enjoining Foreign Anti-Suit Litigation
This article, written by Lamothe Law Firm attorney Richard Martin, was published
in the Louisiana Association for Justice’s Sept 2023 publication, “Louisiana Advocates.”
In Ganpat v. Eastern Pacific Shipping, PTE, No. 22-30168 (April 28, 2023), the U.S. Fifth Circuit affirmed U.S. District Judge Susie Morgan’s (E.D. La.) grant of a permanent anti-suit injunction against Eastern Pacific Shipping’s foreign lawsuit (in India) against the foreign plaintiff. The opinion by Circuit Judges James Ho and Corey Wilson was highly critical of the defendant’s conduct and Judge Edith Jones’ dissent.1 The opinion begins as follows:
“Litigating in a foreign country can be fraught with peril. The basic procedural and substantive protections guaranteed litigants in American courts are often taken for granted here — yet sharply limited or missing entirely before tribunals in foreign lands.
This case provides a vivid illustration: An individual brings tort and contract claims in federal court in Louisiana against a foreign corporation. In response, the corporation evades service and brings a countersuit in India, before a court where the individual lacks counsel and is instead forced to take legal advice from the corporation’s own attorneys. Predictably, the corporation’s attorneys act in direct conflict with the individual’s interests. The corporation’s attorneys not only pressure him to settle—they even manage to convince the foreign court to place him in prison, based on a bizarre claim that the individual does not object to imprisonment without bail while the case is pending.
In response to these alarming developments abroad, the U.S. District Court for the Eastern District of Louisiana unsurprisingly entered an anti-suit injunction to prevent the foreign corporation from litigating the same issues simultaneously before the court in India. This was consistent with Fifth Circuit precedents which have long authorized district courts to enter anti-suit injunctions like the one entered here.”
Fifth Circuit precedent has long authorized district courts to enter anti-suit injunctions like the one entered in Ganpat.2 “Under this deferential standard, findings of fact are upheld unless clearly erroneous, whereas legal conclusions are subject to broad review and will be reversed if incorrect.”3 The standard for the grant of an anti-suit injunction weighs the vexatiousness of the foreign litigation against considerations of comity.4 In Ganpat, the vexatiousness of the foreign suit was severe and comity considerations were, by contrast, weak. Thus, there was no basis for the Fifth Circuit to conclude that Judge Morgan abused her discretion in entering the injunction.5 Three factors help courts determine whether to enjoin foreign litigation as vexatious: (1) “inequitable hardship” resulting from the foreign suit; (2) the foreign suit’s ability to ‘frustrate and delay the speedy and efficient determination of the cause; and (3) the extent to which the foreign suit is duplicitous of the litigation in the United States.6 Under Fifth Circuit case law, “unwarranted inconvenience and expense” can constitute hardship meriting an anti-suit injunction.7
The second vexatiousness factor—“the foreign suit’s ability to ‘frustrate and delay the speedy and efficient determination’” of the American suit, likewise favors the injunction.8 In Ganpat, the Indian court sought to prevent plaintiff from litigating in the United States, even though his American suit was filed first. The “attempt to enjoin [Ganpat] effectively translated into an attempt to enjoin the [American] court itself and to interfere with the sovereign actions of the [United States].”9 When a foreign court tries to keep an American court from hearing a case, that frustrates the American litigation. In Ganpat, the Indian court sought to prevent the American litigation from proceeding. Accordingly, Judge Morgan’s injunction was “necessary to protect the court’s jurisdiction.”10
Because the Indian litigation imposed a hardship on plaintiff, while frustrating the American litigation, Judge Morgan had ample justification to find the Indian litigation vexatious and oppressive. Accordingly, the Fifth Circuit did not need to consider the third vexatiousness factor, “the extent to which the foreign suit is duplicitous of the litigation in the United States.”11 However, the Fifth Circuit’s opinion nevertheless noted that Eastern Pacific sought to establish in the Indian court by declaratory judgment the very same legal theory it raised as an affirmative defense in U.S. court, i.e., that an employment agreement limited its liability to the plaintiff.
Although the Fifth Circuit’s anti-suit injunction test “focuses on the potentially vexatious nature of foreign litigation, it by no means excludes the consideration of principles of comity.”12 That said, comity considerations are not overly strict. “We decline . . . to require a district court to genuflect before a vague and omnipotent notion of comity every time that it must decide whether to enjoin a foreign action.”13 Fifth Circuit precedents make clear that comity concerns are at a minimum where—as here—“no public international issue is implicated by the case” and “the dispute has been long and firmly ensconced within the confines of the United States judicial system.”14
Under Fifth Circuit precedent, a case becomes ensconced in the United States when a party consents to American jurisdiction and appears in the case.15 In Ganpat, Eastern Pacific appeared and waived objections to personal jurisdiction and venue in April 2019. Only in March 2020, did Eastern Pacific file its Indian lawsuit against plaintiff. Despite the fact that the American suit was well underway before the Indian litigation began, the Indian court sought to enjoin the American litigation. Thus, the Fifth Circuit thought it would be strange to “require a district court to genuflect,”16 before a foreign court that refused to respect the American court. In light of the “notinsubstantial” vexatiousness of the Indian litigation and the “scant” comity interests at stake,17 the Fifth Circuit found that Judge Morgan was well within her discretion to grant the injunction.18
Judge Jones’ dissent points out that an anti-suit injunction is an “extraordinary remedy.”19 That is true enough.20 Yet this extraordinary remedy was amply warranted by the extraordinary conduct of Eastern Pacific and the Indian court toward plaintiff.
The panel majority felt that Judge Jones’ dissent misconstrued Fifth Circuit anti-suit injunction precedents. For example, the dissent argued that the majority erred by failing to employ the traditional four-part preliminary injunction test—including the requirement of irreparable injury. But Fifth Circuit international anti-suit injunction precedents do not require a showing of irreparable injury and the Fifth Circuit has never reversed an anti-suit injunction on the basis that the district court failed to apply the traditional preliminary injunction test, including the irreparable injury prong.21
Judge Jones’ dissent emphasized two issues: Kholkar Ganpat is an alien, and the underlying facts involves few contacts with the United States. But only twice has the Fifth Circuit vacated an international anti-suit injunction in a published opinion.22 However, neither case makes the nationality of the party seeking the injunction, or the contacts with the United States, part of its antisuit injunction analysis.23 Fifth Circuit precedents do not ask whether the party seeking the injunction is a foreigner—or whether the underlying facts were related to the American forum. Rather, its precedents weigh the vexatiousness of the foreign litigation against considerations of comity.24
Although a retaliatory discharge is perhaps a more common tactic between local U.S. litigants, when employer and employee are both foreign citizens there exists the opportunity for the employer to coerce a low dollar settlement by litigating an injunction in a foreign court.25 Then, the employer argues that the foreign injunction requires dismissal of the prior-filed U.S. lawsuit. The foreign anti-suit injunction process under Fed. R. Civ. P. 65(a) and 65(a)(2) provides a method by which this “end run” tactic can be stopped.
1 At footnote 1 of its opinion, the Fifth Circuit castigated Eastern Pacific, writing that its “whole course of conduct smacks of cynicism, harassment, and delay.”
2 Bethell v. Peace, 441 F.2d 495, 498 (5th Cir. 1971).
3 Id.
4 See id. at 627; Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 366 (5th Cir. 2003).
5 All of the relevant pleadings and orders in Ganpat can be found on the Eastern District’s ECF/PACER system at Kholkar V. Ganpat v. Eastern Pacific Shipping Pte Ltd, No. 18-13556.
6 Karaha Bodas, 335 F.3d at 366.
7 Kaepa, 76 F.3d at 627. See also In re Unterweser Reederei, Gmbh, 428 F.2d 888, 896 (5th Cir. 1970) (“Allowing simultaneous prosecution of the same action in a foreign forum thousands of miles away would result in ‘inequitable hardship.’”), rev’d on other grounds by M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Bethell, 441 F.2d at 498 (“The court was within its discretion in relieving the plaintiff of expense and vexation of having to litigate in a foreign court.”).
8 Karaha Bodas, 335 F.3d at 366.
9 Id. at 372.
10 MacPhail v. Oceaneering Intern., Inc., 302 F.3d 274, 277 (5th Cir. 2002).
11 Karaha Bodas, 335 F.3d at 366. See Bethell, 441 F.2d at 498 (upholding an anti-suit injunction on the basis of the “expense and vexation of having to litigate in a foreign court” without analyzing whether the foreign suit was duplicative).
12 Kaepa, 76 F.3d at 627.
13 Id.
14 Id.
15 See Kaepa, 76 F.3d at 627 (suit ensconced in the United States when defendant “consented to jurisdiction in Texas” and “appeared in an action brought in Texas”).
16 Kaepa, 76 F.3d at 627.
17 Karaha Bodas, 335 F.3d at 371.
18 On ECF/PACER, see R. Doc. 380 in Ganpat v. Eastern Pacific Shipping Pte Ltd, No.18-13556 (E.D. La., Nov. 22, 2022).
19 See Unterweser, 428 F.2d at 895–96; Bethell, 441 F.2d at 497–99; Kaepa, 76 F.3d at 626–29.
20 See Karaha Bodas, 335 F.3d at 363.
21 See MacPhail 302 F.3d at 277–78; Karaha Bodas, 335 F.3d at 364 (“The suitability of such relief ultimately depends on considerations unique to anti-suit injunctions.”).
22 See MacPhail, 302 F.3d at 278; Karaha Bodas, 335 F.3d at 375–76.
23 See MacPhail, 302 F.3d at 277–78; Karaha Bodas, 335 F.3d at 366–74.
24 Indeed, at p. 12 of its opinion, the Fifth Circuit noted: “If we were undertaking an analysis of personal jurisdiction or venue, contacts with the United States would surely be an appropriate consideration. See, e.g., Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 235 (5th Cir. 2022) (en banc) (“The Fifth Amendment due process test for personal jurisdiction requires . . . ‘minimum contacts’ with the United States.”); 28 U.S.C. § 1391(b) (establishing venue where “a substantial part of the events or omissions giving rise to the claim occurred” or where “defendant is subject to the court’s personal jurisdiction”). But Eastern Pacific waived its objections to both personal jurisdiction and venue. Only the merits of the anti-suit injunction are at issue in this appeal.”
25 In Ganpat, Eastern Pacific was a defendant before Judge Morgan and the plaintiff in its ex parte injunction action in India. Judge Morgan’s order of permanent injunction required Eastern Pacific to dismiss its Indian lawsuit.
