IBM Japan matter — January update #2. “What does extraterritoriality mean to me?”

I got this question posed, in a roundabout way, concerning yesterday’s issue of Title VII being applied to American-controlled companies abroad.

You know, generally, people’s litigation is really their own thing. I talk a bit more about it, online, because in the Japan-side expat community–which I’m an alumnus of!–the only way you can really find stuff out is from other expats. If someone doesn’t tell you, or you don’t read about it from a credible source, you rarely find out anything but the most general stuff.

If I am holding a law license from Pennsylvania and New Jersey, don’t I have an obligation back to whichever community I am a part of, to share a certain bit of knowledge about the law? People forget, but a state certification is really a privilege given over by all the other people in the state, to the individual who specialized in a certain area of knowledge.

With a bar admission, this would be laws and regulations (same thing, really).

With a C.P.A., this would be accounting concepts, practices, and, yes, laws and regulations. Although, technically, the unique “power” the C.P.A. is the right to “attest” to the statements of others concerning number reports like financial statements. But also, you know, things like whether the state lottery is fair or if a website is certifiably “secure”.

So some people can characterize my talking about a case where I appear on one side of the “v” as promotion; but I say, fairly, it can be more seen as informational.

Back to IBM Japan. I have argued in the U.S. District Court that Title VII civil rights protections are available to Americans working for IBM Japan and any other American “controlled” company. The responsibility for adhering to Title VII goes back to IBM USA.

The EEO agreed with me, in 2010.

Now IBM, through Paul Hastings, argues, no.

If you are an American working in Japan, for an American-controlled company, guess what happens to your civil rights protections if the U.S. District Court judge sees it IBM’s way?

Once a case is decided where a judge is saying, “no Title VII coverage”, you just lost something. Sure, I lose something, unless I go to Second Circuit. (Maybe, until I go to Second Circuit . . . ) But you lose something, because when you find your employment rights lost in a flurry of “new contracts”, you lost an avenue for relief.

Some people think, well, if the employee didn’t know they had that stateside protection to begin with, is there really any big loss? I would say, yes. Right?

Right?

It’s two-fold. One, the people have to know that Title VII covers them. And, two, they have to be aware that Title VII might not cover them because of events in the U.S. District Court system.

Where this has been bickered about a bit, besides opposing party’s briefs, has been here online, elsewhere. Reading through what I saw, I had to forehead slap my way through. Title VII is not a challenge to Japan’s sovereignty. The separate Japanese Labor Law (sei sha’in) claim is not an “end run” around Japan.

A U.S. District Court judge is allowed, under Rule 44.1, to interpret foreign law as questions of law, using any credible resource the judge chooses. It does not have to be from an expert witness; and, in fact, the Second Circuit discourages expert witness testimony, because it’s almost always “bought” testimony. It is tailored to the result the paying party wants out of the expert.

So IBM USA/IBM Japan case is actually a hybrid, where the Title VII goes to IBM USA, and the same judge applies Japanese law to IBM Japan. I am not seeking to have American law applied to IBM Japan.

I don’t see where having an American judge rule on a matter of Japanese law is any particular offense to Japan. The source of the law is Japan!

For my Left Behind Parent friends with the children kidnapped to Japan, this is another reason why American jurisdiction is so important—if you can get it. If you have supplemental claims that go to issues of Japanese law, they can definitely be brought in, in a federal case, if you can get over the question of “personal jurisdiction” on the defendant. I know that most of the cases are purely ones of custody. But there are also instances where the Japanese parent may have done other things for which you might have a claim. You don’t want to be splitting the actions between Japan and America, because you run the risk that one court (or both) will point at the other and say, “hey, this should really be over there.” Always remember issue and claim preclusion, which I don’t think the Left Behind Parents talk about enough.

How much sadness there is in that community, too, because knowledge that should have been shared, was not. We all serve each other in some way. We should.