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AlixPartners, LLP, et al. v. The Fund for Protection of Investors' Rights in Foreign States

Paid petition · United States Court of Appeals for the Second Circuit, No. 20-2653 · judgment July 15, 2021

Decided · June 13, 2022
Pre-decision estimate: 11% cert probability (95% interval 7%–16%)

Before the decision, about 2.7× the 4.1% base rate. The model weighted this up for a Second Circuit decision below, a circuit split argued in the petition, and a petition filed soon after the judgment below.

Question presented

Consolidated with 21-401. Under 28 U.S.C. § 1782(a), district courts may authorize third-party discovery against U.S. persons where the evidence sought is for use in "a foreign or international tribunal." The lower courts are in acknowledged conflict regarding the meaning of the phrase "foreign or international tribunal" and, accordingly, whether Section 1782 reaches non--governmental arbitration proceedings occurring in a foreign country. This Court was set to resolve that conflict in Servotronics, Inc. v. Rolls-Royce PLC, No. 20- 794, but that case was dismissed upon the parties' Rule 46 motion shortly before oral argument had been scheduled to occur. This petition likewise presents the Section 1782 dispute, and in an even more critical context. Whereas the arbitration in Servotronics was between two private parties, the arbitration here is between a private party and a foreign state - an application of Section 1782 upon which the United States has expressed "particular concern." The question presented is: Whether an ad hoc arbitration to resolve a commercial dispute between two parties is a "foreign or international tribunal" under 28 U.S.C. § 1782(a) where the arbitral panel does not exercise any governmental or quasi-governmental authority.

Counsel of record

For petitioner
Mark Thomas Stancil
Willkie Farr & Gallagher LLP

For respondent
Alexander Athan Yanos
Alston & Bird LLP

Case

Conference history
Distributed for 2 conferences

Argument & decision

Argued March 23, 2022 — Roman Martinez · Joseph T. Baio · Edwin S. Kneedler · Andrew R. Dav.... Audio and transcript

Decided June 13, 2022. Opinion by Barrett.

Proceedings

  1. Jul 15 2022
    JUDGMENT ISSUED
  2. Jun 13 2022
    Judgment REVERSED. Barrett, J., delivered the opinion for a unanimous Court. VIDED.
  3. Mar 23 2022
    Argued. For petitioners in 21-401: Roman Martinez, Washington, D. C. For petitioners in 21-518: Joseph T. Baio, New York, N. Y. For United States, as amicus curiae, supporting petitioners: Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C. For respondent in 21-401: Andrew R. Davies, New York, N. Y. For respondent in 21-518: Alexander A. Yanos, New York, N. Y. VIDED.
  4. Feb 11 2022
    CIRCULATED
  5. Jan 28 2022
    ARGUMENT SET FOR Wednesday, March 23, 2022. VIDED.
  6. Jan 27 2022
    The record received from the U.S.C.A. 2nd Circuit has been electronically filed.
  7. Jan 26 2022
    Record requested from the U.S.C.A. 2nd Circuit.
  8. Dec 10 2021
    Motion for leave to file amicus brief filed by International Institute for Conflict Prevention & Resolution, Inc. GRANTED.
  9. Dec 10 2021
    Petition GRANTED. The petition for a writ of certiorari before judgment in No. 21-401 is granted. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED.
  10. Dec 10 2021
    Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 21-401. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 21-401. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
  11. Dec 06 2021
    DISTRIBUTED for Conference of 12/10/2021.
  12. Nov 16 2021
    DISTRIBUTED for Conference of 12/3/2021.
  13. Nov 15 2021
    Reply of petitioners AlixPartners, LLP, et al. filed. (Distributed)
    Main DocumentProof of ServiceCertificate of Word Count
  14. Nov 08 2021
    Waiver of the 14-day waiting period under 15.5 filed.
    Main Document
  15. Nov 08 2021
    Brief of respondent The Fund for Protection of Investors' Rights in Foreign States in opposition filed.
    Main DocumentCertificate of Word CountProof of Service
  16. Nov 05 2021
    Motion for leave to file amicus brief filed by International Institute for Conflict Prevention & Resolution, Inc.
    Main DocumentProof of ServiceCertificate of Word Count
  17. Oct 05 2021
    Petition for a writ of certiorari filed. (Response due November 8, 2021)
    PetitionCertificate of Word CountProof of Service