I am actually going veer away a bit from talking about the Left Behind Parents, since there was so much in the comments again, in my post last week.
What I couldn’t emphasize enough, and what was being roundly ignored by one side in the discussion/pissing match, was that getting the right jurisdiction is very important. Particularly, you want to avoid Japanese jurisdiction. You may not want to avoid Japanese laws, but you don’t want to be stuck playing the games that go on in the civil court system in Japan. See my lawyer-acquaintance Timothy Langley’s recent comment for reasons why.
My own case is a bit of a hybrid, because I have a clear federal claim, based on Title VII of U.S. Civil Rights Act, as it applies to American-controlled firms abroad. I also have a claim for violations of Japanese labor law, which would be breach of contract in our system. IBM Japan, Ltd. is under New York jurisdiction because of either/both the “mere department” and/or “agency” doctrines. IBM USA is the parent, and Japan is the subsidiary, but New York has adopted enterprise theory of corporate organization, so it doesn’t really matter that the corporations are separate entities in separate countries. If the one entity meets a “mere department” or an “agency” test for “doing business in New York”, then it’s under New York jurisdiction.
My third claim was the tortious interference one, that I mentioned last month. We are in discovery on that one, and the IBM parties objected to my 20 questions. In objecting, they failed to even include obvious names of possible Japan employees who would have been involved in breaching the Cognos 2008 deal. (Cognos was, by that time, a unit of IBM.)
What surprises me is one of the corporate officers is now working in New York:
Depending on how discovery goes (the Judge has not ruled, or set up pre-motion yet), am I to believe that the former head of HR in Japan—who now works in New York state—is somehow outside the jurisdiction of New York? I haven’t heard the argument yet, because, right now, the opposition is pretending that Mr. Tsubota doesn’t exist.
IBM’s first objections were finally briefed on January 13. It’s now three months, and so, obviously, the jurisdictional objections have been under consideration (sub judice) by the judge for most of this year. They actually were introduced as pre-motion topics last April, a little over one year ago.
Federal district court is packed, because the Senate is holding up five judicial appointments. Five of the 27, which is a full complement on the federal Southern District of New York. So the waiting is no surprise. But backlog or no, if the judge weren’t considering each jurisdictional argument, it would be a surprise. Once jurisdiction is had, then, that is it. If jurisdiction is not recognized, there is only the appeal to the U.S. Court of Appeals for the Second Circuit (New York, Vermont and Connecticut).
What is interesting about IBM’s strategy is that they are insisting that the jurisdiction for the labor law claim can only be Japan (where they’ve delayed things long enough that the statute of limitations has already expired). They also seem to be saying that the extraterritorial Title VII claim should also go to Japan, even though Japan has no jurisdiction over IBM USA, the parent company. Moreover, Japan itself does not have the Title VII, obviously! It kind of defeats the whole purpose of extraterritorial Title VII.
It’s clear that the federal court must accept jurisdiction where Congress has granted it. Sapient Corp. v. Singh, 149 F. Supp. 2d 55 (S.D.N.Y 2001). Foreign subs that meet the right tests are under New York jurisdiction as well, but I could see some pages about that, if the Judge does not agree. I should at least have the right to show that the elements are met.
It seems like the big question IBM doesn’t want to answer this month, though, is:
Is a Japanese working in New York under New York jurisdiction?