Los Angeles partner Abbey Hudson and associates Dione Garlick and Caroline Monroy are the authors of "Calif. Low Carbon Fuel Standard Price Cap Is A Trade-Off," [PDF] published by Law360 on February 7, 2020.
Los Angeles partner Abbey Hudson and associates Dione Garlick and Caroline Monroy are the authors of "Calif. Low Carbon Fuel Standard Price Cap Is A Trade-Off," [PDF] published by Law360 on February 7, 2020.
The Am Law Litigation Daily named New York partners Anne Champion and Randy Mastro as its Litigators of the Week for successfully persuading a district judge that a foreign arbitration award against Chevron was a sham. The profile was published on September 27, 2019. Anne Champion is a member of Gibson Dunn’s Transnational Litigation, Environmental Litigation, and Intellectual Property Practice Groups. She has played a lead role in a wide range of high-stakes litigation matters, including trials. Randy Mastro, Co-Chair of the Firm’s Litigation Practice Group, routinely ranks among the nation’s leading litigators and trial lawyers in surveys of corporate counsel and other practitioners. He has tried dozens of cases in private practice and as a federal prosecutor, and he has also argued more than 100 appeals in federal and state appellate courts throughout the country.
Benchmark Litigation named Perlette Jura, Andrea Neuman, Elizabeth Papez, Deborah Stein and Meryl Young to its 2019 list of the Top 250 Women in Litigation, which recognizes America’s leading female trial lawyers. The list was published on August 15, 2019. Perlette Jura co-chairs the firm’s Transnational Litigation Group and co-founded the firm’s Aerospace and Related Technologies Group. She practices complex trial and appellate litigation and has played a key role in a number of the firm’s most high-profile transnational, environmental and technology-driven matters. She also has extensive experience working with the food and beverage, agricultural, aerospace, automotive, emerging technology and energy industries. Deborah Stein routinely represents clients in high-stakes matters, including cybersecurity and trade secrets litigation, securities and consumer class actions, and insurance coverage and business practices disputes. She devotes a significant part of her practice to representing clients in cases involving the False Claims Act and whistleblower allegations of fraud. Andrea Neuman co-chairs Gibson Dunn’s Transnational Litigation Practice Group. She is a high-stakes trial lawyer whose victories include billion dollar matters in both international and domestic forums. Her international work spans Central, South and North America at both the trial and appellate levels. Domestically, she represents clients in an array of industries nationwide, including oil and gas, food and agriculture, aerospace, technology, accounting, real estate and financial services. Meryl Young is Co-Chair of Gibson, Dunn & Crutcher’s Securities Litigation Practice Group. She practices complex business and commercial litigation, with an emphasis on securities and merger and acquisition litigation and related government investigations. She represents companies, directors and officers, and accounting firms in class actions, and professional liability actions in both state and federal courts. She has also handled a wide variety of other types of business litigation, including cases involving contract disputes, unfair business practices, misappropriation of trade secrets and other business torts, trademark and patent infringement, antitrust, real estate, employment and insurance issues. Elizabeth Papez focuses on high-stakes class actions, complex commercial litigation, and related government investigations and appeals. As a seasoned litigator and former U.S. Deputy Assistant Attorney General, she has substantial experience representing clients in the financial services, pharmaceutical, consumer, and product sectors. She regularly handles federal class actions, multidistrict litigation and other complex commercial disputes under federal and state antitrust statutes, banking and securities laws, and false claims acts, as well as parallel regulatory investigations with the U.S. Department of Justice, the Securities and Exchange Commission, the Commodity Futures Trading Commission, and the Food and Drug Administration.
Click for PDF On September 13, 2018, the U.S. Court of Appeals for the First Circuit handed down an important personal-jurisdiction ruling in the age of e-commerce. In Plixer International, Inc. v. Scrutinizer GmbH, the First Circuit interpreted Federal Rule of Civil Procedure 4(k)(2) to affirm a district court's exercise of personal jurisdiction over a German company whose only ties to the United States were the provision of web-based services to businesses all over the world, including in the United States. This is still a developing area of personal jurisdiction law without clear guidance from the U.S. Supreme Court, and non-U.S. companies should carefully consider whether and how their online commerce might subject them to U.S. litigation. The decision arose out of a trademark dispute between two companies—U.S.-based Plixer International, Inc. and the German firm Scrutinizer GMBH—over whether Scrutinizer's use of its corporate name in the U.S. caused confusion with Plixer's registered "Scrutinizer" mark. Scrutinizer offers web-based services to software companies, principally in helping customers build better software. These offerings are all cloud-based, and Scrutinizer's activities occur exclusively outside the United States. In particular, Scrutinizer does not have any office, phone number, or agent for service of process in the United States; its employees do not travel to the United States for business; and it does not advertise in the United States. Scrutinizer accepts payment only in euros, and its contracts provide that only German law governs disputes, which would be adjudicated only in German courts. Notwithstanding these non-U.S. ties, Scrutinizer does have business dealings in the United States: its website is published in English, and although its business is "global," 156 of its customers were based in the United States over a three year period, with revenues amounting to just under $200,000.00 (€165,212.07). The only U.S.-based conduct highlighted in the opinion was an unexplained trademark application for the term "Scrutinizer " in January 2017, three years after the case was filed. Plixer sued Scrutinizer in the U.S. District Court for the District of Maine and Scrutinizer contested personal jurisdiction. (The dispute was not based on Scrutinizer's contracts and thus did not trigger the forum selection clause.) The district court rejected Plixer's initial effort to base personal jurisdiction solely on Scrutinizer's Maine-based contacts, which consisted only of two sales worth approximately €3,100. But, after allowing for jurisdictional discovery, the district court ultimately found jurisdiction based on Scrutinizer's contacts with the United States as a whole, finding that Scrutinizer "operated a highly interactive website that sold its cloud-based services directly through the website, that it was open to business throughout the world, that it accepted recurrent business from the United States in a substantial amount, and that it did so knowingly." According to the district court, this sufficed to exercise personal jurisdiction over Scrutinizer under Federal Rule of Civil Procedure 4(k)(2), which provides:
(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:The district court denied Scrutinizer's motion to dismiss on these grounds, but granted Scrutinizer's motion to file an interlocutory appeal under 28 U.S.C. § 1292(b). On appeal, the First Circuit affirmed. The court explained at the outset that the only contested aspect of the case was Rule 4(k)(2)(B), which invokes the requirement that personal jurisdiction comport with due process, a test requiring Plixer to show that(A) the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws.
(1) its claim directly arises out of or relates to the defendant's forum activities; (2) the defendant's forum contacts represent a purposeful availment of the privilege of conducting activities in that forum, thus invoking the benefits and protections of the forum's laws and rendering the defendant's involuntary presence in the forum's courts foreseeable; and (3) the exercise of jurisdiction is reasonable.As Plixer's trademark claim necessarily related to Scrutinizer's U.S. sales, the First Circuit analyzed only elements (2) and (3), and held that Plixer had satisfied both. The court first found that Scrutinizer had purposely availed itself of the United States—such that Scrutinizer had the necessary "minimum contacts" with the United States for personal jurisdiction—despite the fact that it had no physical contacts with the United States. The court recognized that a prior personal-jurisdiction decision from the Supreme Court, Walden Fiore, expressly "le[ft] questions about virtual contacts for another day," and the First Circuit therefore based its ruling solely on Scrutinizer's "sizeable and continuing commerce with United States customers," but was otherwise "extremely reluctant to fashion any general guidelines beyond those that exist in law [and] emphasize[d] that [its] ruling [was] specific to the facts of this case." The court also rejected each of Scrutinizer's arguments against the finding of minimum contacts. According to the court, Scrutinizer had not simply "enter[ed] its products into the stream of commerce" and thus had no control where those products ended; "Scrutinizer's service [went] only to the customers that Scrutinizer has accepted." Scrutinizer did not attempt to limit access to its website to block U.S. users, nor did it "take the low-tech step of posting a disclaimer that its service is not intended for U.S. users." The court similarly rejected Scrutinizer's argument that its U.S. contacts were solely "the product of its customers' unilateral actions," because Scrutinizer "knew that it was serving U.S. customers" through its "globally accessible website." But the key minimum-contacts analysis arose in the Court's rejection of Scrutinizer's final argument that it did not "specifically target" the United States. That test came from a four-justice plurality opinion in the 2011 Supreme court Decision, J. McIntyre Machinery, Ltd. v. Nicastro, where the plurality would have allowed jurisdiction only "where the defendant can be said to have targeted the forum." The First Circuit instead relied on Justice Breyer's more narrow concurrence in Nicastro, which relied on findings that the defendant in Nicastro had not made any regular course of sales in the jurisdiction to support a finding of purposeful availment or minimum contacts. According to the First Circuit, Nicastro thus did not concern itself with companies that, like Scrutinizer, "'target the world' by making its website globally available." Ultimately, the Court held that "the German company could have 'reasonably anticipated' the exercise of specific personal jurisdiction based on its U.S. contacts," including Scrutinizers regular sales to the U.S. and its use of a website "to obtain U.S. customer contracts." The First Circuit defended this conclusion as consistent prior decisions from the Supreme Court and other courts emphasizing the importance of forum sales in minimum-contacts analysis. Having found that Scrutinizer had sufficient minimum contacts, the First Circuit concluded that exercising personal jurisdiction was reasonable. The First Circuit recognized that litigating in the United States would burden Scrutinizer given its location in Germany, but discounted that burden in light of Scrutinizer's U.S. business and the fact that "modern travel 'creates no especially ponderous burden for business travelers.'" But no other factor weighed against exercising jurisdiction. The court concluded that "'[w]hen minimum contacts have been established, often the interests of the plaintiff and the forum in the exercise of jurisdiction will justify even the serious burdens placed on the alien defendant.'" The First Circuit's decision is drafted in narrow terms, but non-U.S. companies should take note of Plixer's potentially sweeping conclusion: A company with no physical ties to the U.S. whatsoever could be hauled into a U.S. court based solely on rather modest web-based sales. The Internet and e-commerce have revolutionized the ways in which companies can do business all over the world, opening up markets in ways that were unthinkable in the analog past. But the flip-side of this openness is the risk of litigation in foreign fora. In light of decisions such as Plixer, non-U.S. companies should carefully assess the costs and benefits of selling their products to identifiable U.S. individuals and companies.
Click for PDF Last week the High Court in London handed down its decision following a challenge by KBR, Inc. against the issuing of compulsory document requests that required the production of documents held by the company outside of the UK. KBR, Inc. is a U.S. engineering and construction company and ultimate parent company of the KBR Group. It does not have a physical presence in the UK, but has a subsidiary, KBR Ltd, that does. KBR Ltd is under investigation by the SFO for suspected bribery. At the heart of the proceedings was a notice issued to KBR, Inc. by the Serious Fraud Office ("SFO") under section 2(3) of the Criminal Justice Act 1987 ("CJA") (the "July Section 2 Notice") compelling the production of documents held outside the UK. The SFO issued the July Section 2 Notice to a representative of KBR, Inc. who had attended a meeting with the SFO in the UK to discuss its investigation into KBR Ltd.
DiscretionKBR, Inc. argued that even if the CJA did confer jurisdiction on the SFO to compel the production of materials abroad, the Director of the SFO should not have exercised his power under section 2(3) of the CJA, which is discretionary, and should have first considered using the MLA route. KBR, Inc.'s position was that in failing to do this amounted to an error of law. This argument was rejected. The High Court held that the MLA option was an additional power available to the SFO:
"The availability of MLA gives the Director additional options; it does not curtail his discretion to use the separate power of issuing s.2(3) notices… It follows that KBR [Inc] has failed to demonstrate any error of law on the part of the Director in the exercise of his discretion to issue the July Notice."The High Court noted additionally in the SFO's favour that there are "good practical reasons" for the Director to use a section 2 notice instead of MLA. Such reasons included delays, the risk that a request is ignored, and the burden on the requested state of having to deal with a request when it would be simpler to obtain the materially directly. KBR, Inc. had neither shown nor suggested that compliance with the July Section 2 Notice would have raised any complexities or issues of local U.S. law, or conflict with duties owed by KBR, Inc. to third parties.
ServiceKBR, Inc. argued that simply giving the July Notice to KBR, Inc.'s representative during an SFO meeting was not enough to "serve" KBR, Inc. with the July Section 2 Notice, and that the fact that KBR, Inc. 's representative was in the UK did not signify that KBR, Inc. was present in the UK. The court rejected this challenge, noting in particular that section 2(3) required no additional formality beyond the giving of the notice. The Court held that KBR, Inc. was "plainly present" in the jurisdiction when the SFO gave the July Section 2 Notice to its representative. The SFO made the meeting in question conditional on the attendance of "the clients" (i.e., KBR, Inc.). As such, it was clear that KRB Inc's representatives were in the jurisdiction in their capacity as representatives and not "coincidentally or on some personal frolic". The High Court, however, noted that the SFO's plan to give the July Notice to KBR, Inc.'s representative during the course of the meeting had "unappealing features". However, those features did not invalidate the July Notice; rather they serve as a warning to others who may attend similar meetings with the SFO in the future.
ImplicationsThe decision has helped to clarify the scope of the SFO's section 2 notice power, which to-date has not been considered comprehensively by the courts. The SFO will no doubt be satisfied with the result. Foreign companies that hold documents outside of the UK will not be immune from the SFO's section 2 power, provided that the SFO can illustrate a "sufficient connection" between the company in question and the UK. A parent / subsidiary relationship alone will not suffice, but where there are links between a UK subsidiary and its foreign parent, for example if they share accounting or compliance functions, this will likely suffice. In this case, another connection was the presence of a KBR, Inc. employee in KBR Ltd's office. This seems a rather tenuous connection. Whether that factor alone would have been enough is difficult to assess. The High Court, however, obviously thought it was sufficiently material to identify and take into account. This decision is likely to embolden the SFO in serving section 2 notices on foreign companies involved in their investigations. The Crime (Overseas Production Orders) Bill, which is currently before Parliament, may soon render the decision less relevant, at least as far as documents are stored electronically and in states where reciprocal arrangements are made for recognition of production orders. The Bill has received little press attention to date but it may have significant implications. If enacted, the SFO (amongst other authorities) will be able to make an application to the Crown Court for an order requiring an overseas person to produce electronic data in connection with an investigation, where there is an international cooperation agreement in place with the jurisdiction in question. We note that the U.S. has passed the CLOUD Act (Clarifying Lawful Use of Overseas Data Act), which the UK Government has stated was passed "in anticipation and preparation" for a bilateral UK-US data access agreement. If the Bill becomes law and agreements are put in place, it may become much easier for the SFO to obtain electronic data from overseas to aid its investigations.
Gibson Dunn lawyers are available to assist in addressing any questions you may have regarding these developments. If you would like to discuss this alert in greater detail, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following members of the firm's disputes practice:
Philip Rocher (+44 (0)20 7071 4202, firstname.lastname@example.org) Patrick Doris (+44 (0)20 7071 4276, email@example.com) Sacha Harber-Kelly (+44 20 7071 4205, firstname.lastname@example.org) Charles Falconer (+44 (0)20 7071 4270, email@example.com) Allan Neil (+44 (0)20 7071 4296, firstname.lastname@example.org) Steve Melrose (+44 (0)20 7071 4219, email@example.com) Sunita Patel (+44 (0)20 7071 4289, firstname.lastname@example.org)© 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
Click for PDF WesternGeco LLC v. ION Geophysical Corp., No. 16-1011 Decided June 22, 2018 Today, the Supreme Court held 7-2 that federal law permits a patent holder to recover damages for overseas losses from a defendant that infringes its patent by shipping components of a patented invention from the United States to be assembled abroad. Background: 35 U.S.C. § 271(f)(2) imposes liability for patent infringement when a company ships components of a patented invention overseas to be assembled in a way that would constitute patent infringement in the United States. 35 U.S.C. § 284 permits patent owners who prove infringement under § 271(f)(2) to recover damages, but the statute is silent on whether damages are available for losses incurred outside of the United States as a result of the infringement. WesternGeco, which owns patents related to ocean-floor surveying technology, proved patent infringement under § 271(f)(2) and was awarded damages pursuant to § 284 for lost profits incurred abroad. Issue: Whether awarding damages for lost foreign profits to a patent owner who proves patent infringement under 35 U.S.C. § 271(f)(2) comports with the presumption that federal statutes apply only within the territorial jurisdiction of the United States. Court’s Holding: Yes. Awarding damages for lost foreign profits to a patent owner who proves patent infringement under § 271(f)(2) does not violate the presumption against extraterritoriality.
“[T]he focus . . . , in a case involving infringement under [35 U.S.C.] § 271(f)(2), is on the act of exporting components from the United States.”Justice Thomas, writing for the 7-2 majority What It Means:
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Click for PDF Jesner v. Arab Bank, PLC, No. 16-499 Decided April 24, 2018 Today, the Supreme Court held 5-4 that a foreign corporation may not be sued under the Alien Tort Statute. Background: The Alien Tort Statute of 1789 (ATS) provides that foreign nationals may sue in federal court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. In recent years, plaintiffs increasingly have relied on the ATS to sue multinational corporations and banks in federal courts for alleged terrorist activities and human rights violations abroad. In this case, the plaintiffs sued Arab Bank, PLC—a Jordanian financial institution with a branch in New York—alleging that the bank helped finance terrorist attacks in the Middle East. Issue: Whether foreign corporations can be sued in federal court in the United States under the ATS. Court's Holding: No. Neither the language of the ATS nor the Court’s precedents interpreting it supports extending the statute to reach suits against foreign corporations. The political branches, rather than the courts, are responsible for weighing foreign-policy concerns and deciding whether foreign corporations should face liability for acts like those at issue in this case. The Judiciary is “not well suited to make the required policy judgments that are implicated by corporate liability in cases like this one.”
“[A]bsent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.”Justice Kennedy, writing for the majority What It Means:
Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding developments at the Supreme Court. Please feel free to contact the following practice leaders:
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Click for PDF On March 22, 2018, in a 4-1 opinion, the Delaware Supreme Court held that where defendants have demonstrated that litigating in Delaware would result in an overwhelming hardship to defendants, Delaware courts may dismiss suits under the doctrine of forum non conveniens even if no alternative forum is available. Given the significant number of multinational corporations subject to suit in Delaware, and the challenges those defendants face presenting a meaningful defense where the key documents, witnesses and evidence reside overseas, this ruling will go a significant way toward enabling defendants to better protect their rights to a full and fair trial. The underlying litigation was filed in Delaware state court by Argentine citizens alleging exposure to pesticides used on Argentine tobacco farms and seeking compensatory and punitive damages against several defendants, including Monsanto Company, Philip Morris Global Brands, Inc., and Philip Morris USA Inc. (“Philip Morris USA”). Rejecting the rules governing forum non conveniens in federal court, and adopting reasoning consistent with the forum non conveniens approach in New York’s courts, the Delaware Supreme Court held that the existence of an alternative forum is not a pre-requisite to dismissal, but rather only one of many factors to be considered in making the determination whether “‘litigating in Delaware would result in an overwhelming hardship to [the defendant].’” The Delaware Supreme Court explained that the doctrine of forum non conveniens has changed dramatically since it was first recognized by the U.S. Supreme Court in 1947. Citing one study showing that federal courts granted “roughly half of motions to dismiss for forum non conveniens,” the Court wrote that “state courts now shoulder more of the transnational litigation.” But these “cases are complex and strain judicial resources,” as demonstrated by the present litigation, in which all conduct occurred in Argentina, all documents and witnesses would be located in Argentina, and the Delaware courts would need to apply Argentine law to a dispute that “has no real connection [to Delaware].” International comity also informed the Court’s decision not to require an alternative forum prior to dismissal. The Court recognized that “some countries have erected barriers preventing plaintiffs from pursuing litigation in their home country once a case has been filed in the United States” and that “plaintiffs can take steps to render the foreign jurisdiction unavailable.” The Court reasoned that rejecting the available-forum requirement “might encourage foreign jurisdictions to rethink laws and rules shifting to the U.S. courts disputes that are more closely connected to their own countries and citizens.” In announcing the rule, the Delaware Supreme Court did not totally foreclose foreign plaintiffs from bringing suit against Delaware companies in Delaware courts because “[t]he degree of the Delaware corporate defendant’s connection to the alleged wrong will still be considered” in the forum non conveniens analysis. But the Court emphasized that “trial court[s] will … have the discretion to dismiss a transnational dispute when the defendant has demonstrated overwhelming hardship if the case is litigated in the Delaware courts, even if an alternative forum is not available.” The Delaware Supreme Court’s decision is a significant development in transnational case law. Given the sheer number of businesses incorporated in Delaware, Delaware state court is an obvious target for foreign plaintiffs seeking to avail themselves of American courts, which are widely viewed as plaintiff-friendly. But this decision gives U.S. businesses sued in connection with foreign conduct another arrow in their quivers as they defend against costly transnational litigation.
Gibson Dunn represented Philip Morris USA in the Delaware litigation. Patrick Dennis, Miguel Estrada, Perlette Jura, and Amir Tayrani led the Gibson Dunn team.
Click for PDF Yesterday, the Court of Justice of the European Union (CJEU) issued its much awaited ruling on the compatibility of intra-EU bilateral investment treaties (BITs) with EU law, in Achmea B.V. (formerly known as Eureko B.V.) v. Slovakia. The CJEU determined that arbitration provisions found in BITs concluded between EU Member States are incompatible with EU law. Adopting the policy views expressed by the European Commission in recent years, the CJEU's decision goes against the Advisory Opinion of the Attorney General Wathelet issued in September 2017, who had advised that there is no incompatibility with EU law. The decision also goes against a long line of decisions from international arbitration tribunals rejecting the suggestion that EU law precludes the jurisdiction of such arbitral tribunals. The decision itself is surprisingly light in terms of its reasoning and leaves many questions unanswered. For example, it is not clear how the CJEU ruling will impact pending disputes against EU Member States under intra-EU BITs. It also appears to suggest that arbitration under the Energy Charter Treaty may be unaffected. However, the ruling no doubt will have consequences for the protection of foreign investments within the EU going forward. Investors will not be able to commence arbitration proceedings under BITs between EU Member States. Thus, in order to maximize protection from potential adverse government actions, investors from EU Member States with investments in other EU Member States should seriously consider restructuring their investments in order to ensure that they can take advantage of investment treaty protections.
The DIFC Court recently issued its first ever decision on sovereign immunity. Neither the UAE nor the DIFC has any legislation expressly conferring sovereign immunity upon foreign states. In a decision welcomed by the investment community, Justice Sir Jeremy Cooke dismissed arguments by the Kurdistan Regional Government of Iraq (the KRG) that it was entitled to state immunity. The KRG had sought to avoid the recognition and enforcement in the DIFC of arbitral awards exceeding US$ 2 billion rendered against it in favour of Pearl Petroleum (a consortium majority owned by UAE's Crescent Petroleum and Dana Gas). The action was part of a global enforcement campaign against the KRG, led by Gibson Dunn's London, New York, Dubai and Frankfurt offices, to recover more than US$ 2 billion that remained unpaid under the awards. Justice Cooke found that the KRG had comprehensively waived any available defence of immunity by contractually agreeing to: "waive on its own behalf and that of the KRG any claim to immunity for itself and its assets". The Judge also found that the KRG was estopped from arguing otherwise. This would render it far more difficult for the KRG to press similar immunity defences in other jurisdictions. The judgment underlines the importance of incorporating a sufficiently robust waiver of immunity—both from suit and from execution—when contracting with States or their related entities. The judgment also reflects the DIFC Court's continued pro-arbitration stance. The KRG has since settled its liabilities under the awards. The settlement emphasizes the importance of a coordinated and robust global enforcement strategy. The Proceedings Before the DIFC Court The DIFC Court had granted an ex parte order recognising two awards issued in favour of Pearl in ongoing LCIA arbitration proceedings. The awards were issued in London by a Tribunal comprising Lord Hoffmann (as President), Lord Collins of Mapesbury and Mr John Beechey. The KRG applied to set aside the ex parte order. The KRG claimed that, as a self-governing region of a State, it was entitled to invoke sovereign immunity from the Court's jurisdiction and from enforcement against its assets. The underlying contract granted Pearl exclusive rights to develop and produce petroleum within two fields in the Kurdistan Region of Iraq. The KRG claimed that the contract related to acts undertaken in the exercise of sovereign authority. Pearl responded that there is no concept of foreign state immunity within the UAE or the DIFC—that being the received view of the legal community. To the extent that such immunity existed, Pearl argued that the KRG was not entitled to invoke it since the KRG is not, in itself, a "State" and nor was it exercising Iraq's sovereign authority. In the alternative, Pearl argued that the KRG had contractually waived any defence of sovereign immunity. The KRG also argued that the DIFC Court had no jurisdiction to determine the existence, extent or waiver of sovereign immunity and that such matters must be determined by the UAE's Union Supreme Court—a process that could take many months. The Court's Decision Justice Sir Jeremy Cooke held that it was plainly within the Court's jurisdiction to decide issues of immunity—both as to the existence and scope of the doctrine in the UAE and DIFC and as to waiver. Accordingly, the KRG's plea for the question to be referred to the UAE Union Supreme Court was rejected. Justice Cooke accepted Pearl's waiver arguments (as the English Court had in earlier, related proceedings), having come to the "clear conclusion that the KRG has waived any right to such immunity". He therefore held that it was unnecessary to decide on the existence or ambit of any doctrine of state immunity in the DIFC or the UAE, or whether the KRG acted in exercise of sovereign authority. Justice Cooke commented that "the whole purpose of the waiver provisions was to avoid any such arguments and in my judgment, the provisions relied on by the Claimants succeed in doing so". Significantly, Justice Cooke held that it was "inherent" in the KRG's submission to the underlying arbitration agreement that it submitted itself to any process necessary to render the arbitration effective. The result is that, in the DIFC (as in many other jurisdictions), an agreement to arbitrate constitutes a waiver of immunity against suit. As a matter of contractual construction, the KRG had also waived immunity from execution over its assets. Justice Cooke dismissed the KRG's arguments that sovereign immunity could not be waived via a prior written agreement. He found this to be out of step with current international thinking, having examined the position taken by the UN Convention on Jurisdictional Immunities of States and their Property (to which neither the UAE nor Iraq are party). The Message for Parties and Practitioners The thrust of the Court's judgment is that, where a clear and unequivocal waiver from suit and enforcement is given in a contract, there is no good reason why effect should not be given to the words used. The judgment underlines the importance of incorporating a comprehensive waiver of immunity—both from suit and from execution—when contracting with States or their subsidiary entities. This is so even when contracting in the UAE or the DIFC, where no doctrine of state immunity is understood to exist The judgment also reflects the DIFC Court's continued pro-arbitration stance. Investors can take comfort that the DIFC Court will take a modern and pragmatic approach to the issue of sovereign immunity, as it has to other issues arising in the enforcement process. The judgment also underscores the challenges presented in seeking to enforce significant arbitral awards, particularly against sovereigns and their related entities whose assets are difficult to locate or reach. Successful enforcement will require creative thinking, multi-jurisdictional expertise and a robust and coordinated global strategy—ideally one developed and pursued in parallel with the underlying arbitration. Representation in the DIFC Court proceedings For Pearl Petroleum, Crescent Petroleum and Dana Gas: Tom Montagu-Smith QC at XXIV Old Buildings in London instructed by Gibson Dunn & Crutcher (Cyrus Benson, Nooree Moola and Emily Beirne). For the KRG: Michael Black QC and Arshad Ghaffar at XXIV Old Buildings instructed by Addleshaw Goddard (Paul Hughes and Charlotte Bhania).
For further information regarding the above update, please contact the Gibson Dunn lawyer with whom you usually work, or the authors:
Cyrus Benson - London (+44 (0) 20 7071 4239, email@example.com) Nooree Moola - Dubai (+971 (0) 4 318 4643, firstname.lastname@example.org) Emily Beirne - Dubai (+971 (0) 4 318 4626, email@example.com)© 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
On September 5, 2017, the Trump Administration announced the termination of the Deferred Action for Childhood Arrivals program ("DACA"). Attorney General Jeff Sessions announced the Administration's decision in remarks delivered on Tuesday morning. Acting Secretary of Homeland Security Elaine Duke subsequently issued a memorandum formally rescinding the program, after which the White House issued a separate statement explaining President Trump's decision.
Under DACA, certain individuals brought to the United States as children who met specific criteria could apply for a two-year, renewable period of deferred action from immigration enforcement. Those granted deferred action were considered by the Department of Homeland Security ("DHS") to be "lawfully present" in the United States, and eligible for work authorization. Since 2012, nearly 800,000 young people have been granted DACA status, with the majority of these individuals located in California, Texas, Illinois, New York, and Florida.
This alert addresses the implications of the implementation of the rescission memorandum by DHS. Most notably for our clients, DHS will continue to accept renewal applications from individuals who have DACA status that will expire between now and March 5, 2018, so long as the renewal applications are filed and accepted by October 5, 2017.
On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano issued a memorandum establishing the DACA program. Individuals qualified for DACA if they: (1) came to the United States under the age of sixteen; (2) had five years of continuous residence in the United States; (3) met certain education or military service requirements; (4) had not been convicted of a felony or certain other crimes, and weren't otherwise a threat to national security; and (5) were not above the age of 30.
On November 20, 2014, DHS issued a new memorandum expanding the eligibility for DACA and also creating a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA"). However, shortly thereafter, a group of 26 states successfully challenged DAPA in federal court, obtaining a nationwide injunction against its implementation that was affirmed by the Fifth Circuit on the basis that the DAPA program was not authorized by the Immigration and Nationality Act and was therefore unlawful executive action. The Fifth Circuit's decision was subsequently affirmed by an equally divided Supreme Court.
On June 29, 2017, officials from ten of the states that had challenged the DAPA program sent a letter to Attorney General Sessions, asserting that the DACA program was unconstitutional for the same reasons that the court found the DAPA program to be unconstitutional. The states wrote that they would amend their DAPA lawsuit to include a challenge to DACA unless the federal government rescinded the DACA program by September 5, 2017.
On July 21, 2017, attorneys general from twenty other states sent a letter to the President urging him to maintain DACA and defend the program in court. On August 31, 2017, hundreds of America's leading business executives sent a letter to President Trump urging him to preserve the DACA program.
On September 4, 2017, Attorney General Sessions wrote to Acting Secretary of Homeland Security Duke, describing his assessment that "DACA was effectuated by the previous administration through executive action, without proper statutory authority;" that DACA "was an unconstitutional exercise of authority by the Executive Branch;" and that "it is likely that potentially imminent litigation would yield similar results [as the DAPA litigation] with respect to DACA."
On September 5, 2017, Attorney General Sessions announced the Administration's decision to end DACA, and Acting Secretary of Homeland Security Duke issued the memorandum formally rescinding the DACA program.
The DHS memorandum does not immediately terminate the lawful presence or work authorizations of current DACA recipients, nor does it immediately terminate the DACA program itself. Rather, DHS has chosen to wind down the program over the coming years. The details of this phase-out are as follows:
Although the extended nature of the rescission will delay the effect of terminating DACA somewhat, the end of the program is nonetheless expected to be disruptive to American businesses. Researchers have estimated that terminating DACA would cause 30,000 people per month to lose their jobs, and will impose costs of approximately $3.4 billion on employers nationwide.
In a statement issued on September 5, 2017, President Trump called on Congress to pass comprehensive immigration reform, including a program similar to DACA. President Trump wrote, "Congress now has the opportunity to advance responsible immigration reform that puts American jobs and American security first. . . . I look forward to working with Republicans and Democrats in Congress to finally address all of these issues in a manner that puts the hardworking citizens of our country first. . . . It is now time for Congress to act!"
At least one court challenge has already been initiated in reaction to today's rescission memorandum. The National Immigration Law Center, joined by the Jerome N. Frank Legal Services Organization at Yale Law School and Make The Road – New York, are requesting leave to amend a complaint in the Eastern District of New York, to allege that the rescission of DACA violates the Administrative Procedure Act and the constitutional rights of DACA beneficiaries. And at least three Democratic state attorneys general have threatened to challenge the Administration's decision in court.
Additionally, following the Administration's announcement, the states that successfully challenged the DAPA program voluntarily dismissed their lawsuit.
Employers may consider actions to address the developments described above, and minimize the effect on employees. In particular, employers may want to consider:
Finally, employers may consider the impact that these developments are likely to cause for DACA beneficiaries and their families. Employers may consider providing counseling or other support for employees affected by this change in policy.
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Gibson Dunn will continue to closely monitor these rapidly developing issues.
 See Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca.
 See Memorandum from Acting Secretary Elaine C. Duke, Rescission of the June 15, 2012 Memorandum Entitled "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children" (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca (hereinafter "Rescission Memorandum").
 See Statement from President Donald J. Trump (Sept. 5, 2017), https://www.whitehouse.gov/the-press-office/2017/09/05/statement-president-donald-j-trump.
 See United States Citizenship and Immigration Services, Number of Form 1-821D, Consideration of Deferred Action for Childhood Arrivals, by Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 2012-2017 (June 8, 2017).
 Memorandum from Secretary Janet Napolitano, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012), https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf.
 Memorandum from Secretary Jeh Charles Johnson, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf.
 Letter from Texas Attorney General Ken Paxton, et al., to U.S. Attorney General Jeff Sessions (June 29, 2017), https://www.texasattorneygeneral.gov/files/epress/DACA_letter_6_29_2017.pdf.
 Letter from California Attorney General Xavier Becerra, et al., to President Donald J. Trump (July 21, 2017), https://oag.ca.gov/system/files/attachments/press_releases/7-21-17%20%20Letter%20from%20State%20AGs%20to%20President%20Trump%20re%20DACA.final_.pdf.
 Letter to Donald J. Trump, Paul Ryan, Nancy Pelosi, Mitch McConnell, and Charles Schumer (Aug. 31, 2017), https://dreamers.fwd.us/business-leaders.
 See Mahita Gajanan, Read Jeff Sessions' Letter Calling for the End of DACA, TIME (Sept. 5, 2017), http://time.com/4927250/jeff-sessions-daca-rescind-letter; see also Rescission Memorandum, supra note 2.
 Department of Homeland Security, Frequently Asked Questions: Rescission Of Deferred Action For Childhood Arrivals (DACA) (Sept. 5, 2017), https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca.
 See Immigration Legal Resource Center, Money on the Table: The Economic Cost of Ending DACA, at 4 (Dec. 2016), https://www.ilrc.org/sites/default/files/resources/2016-12-13_ilrc_report_-_money_on_the_table_economic_costs_of_ending_daca.pdf.
 Reid Wilson, Dems Threaten to Sue Trump Over DACA, The Hill (Sept. 5, 2017), http://thehill.com/homenews/state-watch/349302-dems-threaten-to-sue-trump-over-daca.
Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work or the following:
Theodore J. Boutrous, Jr. - Los Angeles (+1 213-229-7000, firstname.lastname@example.org)
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Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
Gibson Dunn previously issued several client alerts regarding President Trump's January 27, 2017 and March 6, 2017 Executive Orders restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes. This alert addresses implementation of the Supreme Court's June 26, 2017 ruling allowing the travel ban to go partially into effect. The executive branch has indicated it will begin enforcing the order as of 8 pm ET, June 29, 2017. The most current information indicates this will primarily impact those applying for visas, not those travelling on existing visas. Experience suggests that individuals attempting to board U.S.-bound aircraft, or arriving in the United States, may nonetheless encounter some difficulties.
For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe's wife or Dr. Elshikh's mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the Executive Order.] The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid § 2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
* * *Gibson Dunn will continue to monitor these rapidly developing issues closely.
Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work or any of the following:Theodore J. Boutrous, Jr. - Los Angeles (+1 213-229-7000, email@example.com) Rachel S. Brass - San Francisco (+1 415-393-8293, firstname.lastname@example.org) Anne M. Champion - New York (+1 212-351-5361, email@example.com) Ethan Dettmer - San Francisco (+1 415-393-8292, firstname.lastname@example.org) Theane Evangelis - Los Angeles (+1 213-229-7726, email@example.com) Kirsten Galler - Los Angeles (+1 213-229-7681, firstname.lastname@example.org) Ronald Kirk - Dallas (+1 214-698-3295, email@example.com) Joshua S. Lipshutz - Washington D.C. (+1 202-955-8217, firstname.lastname@example.org) Katie Marquart, Pro Bono Counsel & Director - New York (+1 212-351-5261, email@example.com) Samuel A. Newman - Los Angeles (+1 213-229-7644, firstname.lastname@example.org) Jason C. Schwartz - Washington D.C. (+1 202-955-8242, email@example.com) Kahn A. Scolnick - Los Angeles (+1 213-229-7656, firstname.lastname@example.org) © 2017 Gibson, Dunn & Crutcher LLP Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.
On June 19, 2017, the Supreme Court of the United States further clarified the scope of state courts' power to exercise personal jurisdiction over defendants, holding that state courts do not have specific personal jurisdiction unless there is "an 'affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State.'" Bristol-Myers Squibb Co. v. Superior Court of Cal., S.F. Cty., No. 16-466, Slip op. 7 (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Without a connection between the defendant's activity in the forum state and the specific claims in the litigation, a state court lacks specific personal jurisdiction even if the defendant has expansive activities in the state that are unrelated to the litigation. Bristol-Myers involved claims brought in California state court against Bristol-Myers Squibb, a pharmaceutical company incorporated in Delaware and headquartered in New York. Slip op. 1. The plaintiffs were 86 California residents and 592 non-California residents from 33 other states. Id. at 2. All of the plaintiffs alleged that they were injured by a prescription drug called Plavix, which was manufactured and sold nationwide by Bristol-Myers. Id. Bristol-Myers moved to quash the service of summons in part, arguing that the California court lacked personal jurisdiction over Bristol-Myers on the non-California residents' claims. Id. Bristol-Myers argued that those claims had no meaningful connection to California because the non-residents had purchased, used, and allegedly been injured by Plavix outside of California and because Bristol-Myers developed, marketed, and packaged Plavix in New York, not California. Id. The California Supreme Court concluded that the California courts could exercise specific personal jurisdiction over Bristol-Myers on the out-of-state residents' claims. Slip op. 3. The court applied a "sliding scale approach to specific jurisdiction" under which "the more wide ranging the defendant's forum contacts, the more readily is shown a connection between the forum contacts and the claim." Id. at 3 (internal citations omitted). According to the California Supreme Court, "the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims." Id. at 7. The court concluded that the required connection existed here because Bristol-Myers' California activities unrelated to Plavix were wide-ranging: It had research facilities, laboratories, employees, sales representatives, and a government advocacy office located there. Id. at 1−2. The Supreme Court of the United States firmly rejected the "sliding-scale approach," which it called "loose and spurious" with "no support" in the Supreme Court's cases. Slip op. 7. Instead, the Supreme Court held, "for a court to exercise specific jurisdiction over a claim, there must be an "an 'affiliation between the forum and the underlying controversy, principally, an activity or an occurrence that takes place in the forum State.'" Id. (quoting Goodyear, 564 U.S. at 919). And in terms of whether a sufficient connection exists between the defendant's activity in the forum state and the plaintiffs' claims, Bristol-Myers' California activities unrelated to the litigation were not "sufficient—or even relevant." Id. at 8. The fact that other plaintiffs from California with similar claims were permitted to sue in California "does not allow the State to assert specific jurisdiction over the nonresidents' claims" because "[w]hat is needed … is a connection between the forum and the specific claims at issue." Id. Nor was the fact that Bristol-Myers "contracted with a California distributor … enough to establish personal jurisdiction in the State," because the plaintiffs did not allege that Bristol-Myers "engaged in relevant acts together with [the distributor] in California" or that Bristol-Myers "is derivatively liable for [the distributor's] conduct in California." Id. at 11−12. At bottom, because the non-resident plaintiffs "d[id] not claim to have suffered harm in [California]," and "all of the conduct giving rise to the nonresidents' claim occurred elsewhere," California courts "[could not] claim specific jurisdiction." Slip op. 9.
For multinational companies, navigating the attorney-client privilege and work product protections in the cross-border context can be tricky. This webcast will attempt to bring clarity to how courts and arbitral tribunals address issues of attorney-client privilege and work product in the transnational context. Topics will include:
Gibson Dunn previously issued several client alerts regarding President Trump's January 27, 2017 and March 6, 2017 Executive Orders restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes. This alert addresses the impact of two federal district court rulings temporarily blocking the federal government from implementing the Executive Order's travel ban and changes to the refugee program, both scheduled to go into effect at 12:01 AM ET on March 16.
* * *Gibson Dunn will continue to monitor these rapidly developing issues closely.
Over the past few years, interest in corporate social responsibility ("CSR") has increased significantly. The spotlight on CSR has led companies to expand and strengthen their CSR efforts. Many companies in turn have published sustainability reports, posted materials on their websites and made other statements about their past CSR efforts and future CSR goals. Certain website CSR disclosures are also required by statutes such as the California Transparency in Supply Chains Act of 2010 and the U.K. Modern Slavery Act 2015. Some organizations are also encouraging companies to include more CSR statements in their filings with the Securities and Exchange Commission ("SEC").While CSR statements may foster public goodwill and inform customers and investors about positive company initiatives, they can also create real litigation and liability risks. This alert discusses a recent wave of litigation taking aim at CSR statements and steps companies can take to minimize these risks.
Gibson Dunn previously issued several client alerts regarding President Trump's January 27, 2017, Executive Order restricting entry into the United States for individuals from certain nations and making other immigration-related policy changes. This client alert addresses the replacement Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry into the United States," signed on March 6, 2017. It also addresses a recent announcement suspending expedited processing of H-1B visas.
* * *Gibson Dunn will continue to monitor these rapidly developing issues closely.
On Monday, January 30, 2017, Gibson Dunn issued a client alert regarding President Trump's January 27 Executive Order restricting entry into the United States for individuals from certain nations, and making other immigration-related policy changes. On February 1, Gibson Dunn issued an updated client alert, covering subsequent developments relating to the Executive Order including: (1) coverage of dual citizens; (2) provisional revocation of certain visas; and (3) reciprocal policy changes abroad. This update describes yesterday's Ninth Circuit decision in State of Washington v. Trump, which denied the Government's request to stay the nationwide temporary restraining order, as well as other recent developments relating to the various legal challenges to the Executive Order. On February 10, the Ninth Circuit issued a sua sponte request that the parties brief whether en banc review by the Ninth Circuit is appropriate. At the same time, news reports indicate that the Trump administration may issue a revised executive order, rather than appeal the decision. This update also provides considerations for companies and others as they continue to deal with the aftereffects of the Executive Order and the various court challenges to it. This alert is informational only, and you should, of course, seek legal advice specific to any particular situation.
This February 2017 edition of Gibson Dunn's Aerospace and Related Technologies Update discusses newsworthy developments, trends, and key decisions from 2016 that are of interest to aerospace and defense, satellite, and drone companies, and new market entrants in the commercial space and related technology sectors, including the private equity and other financial institutions that support and enable their growth. Specifically, this update covers the following areas: (1) commercial unmanned aircraft systems ("UAS"), or drones; (2) government contracts litigation involving companies in the aerospace and defense industry; and (3) the commercial space sector. We discuss each of these areas in turn below.
* * *Although the waiver and airspace authorization process is far from perfect, the mere existence of an institutionalized waiver and airspace authorization program is promising. We expect that the FAA will streamline the process in 2017, making waivers and airspace authorization more accessible to remote pilots. We also expect that Part 107 is the beginning, and not the end, of drone regulations. For example, in the next few years, the FAA will likely propose rules for drones heavier than 55 pounds, and within the next few months, the FAA will likely publish a Notice of Proposed Rule Making for operating drones over non-participating people.
Covered Data: The best practices focus heavily on the collection and storage of "covered data." Covered data is information collected by drones that identifies a particular person. If the data is unlikely to be linked to a particular person, or if it is altered so that a particular person is not recognizable, it is not considered covered data.
Reasonable Expectation of Privacy: Absent a compelling need, drone operators should avoid collecting covered data when the subject has a reasonable expectation of privacy. Operators should avoid intentional, persistent, and continuous collection of covered data about individuals. Further, operators should make reasonable efforts to minimize flights over private property without consent of the owner or without appropriate legal authority.
Data Security: Organizations storing covered data should implement a program to address and manage cybersecurity risks. The program should have reasonable administrative, technical, and physical safeguards appropriate to the organization's size and the nature of the covered data. Appropriate safeguards include those described in guidance from the Federal Trade Commission, the National Institute of Standards and Technology Cybersecurity Framework, and the International Organization for Standardization's 27001 standard for information security management. Corporations should consider the below practices to secure covered data:
Congress surely understands that state and local authorities are (usually) well positioned to regulate what people do in their own backyards. The Constitution creates a limited national government in recognition of the traditional police power of state and local government. No clause in the Constitution vests the federal government with a general police power over all of the air or all objects that leave the ground. Although the Commerce Clause allows for broad federal authority over interstate and foreign commerce, it is far from clear that Congress intends--or could constitutionally intend--to regulate all that is airborne on one's own property and that poses no plausible threat to or substantial effect on air transport or interstate commerce in general.The dicta in Huerta may indicate how federal courts will address this vital issue. As drone operations continue to expand, the importance of the question will continue to grow.
Click for PDF On Friday January 27, 2017, President Trump issued an Executive Order entitled "Protecting the Nation from Foreign Terrorist Entry into the United States Executive Order." (Available here.) The Executive Order imposes, among other things, a 90-day ban on entry into the United States for any purpose by non-U.S. citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The State Department has advised individuals from the affected countries seeking visas to enter the United States not to schedule or attend interviews, or pay fees for such visas, until further notice.[i] Over the weekend, three federal courts blocked implementation of various parts of the Executive Order. Additionally, the Administration has announced that implementation of the Executive Order will be somewhat relaxed for U.S. lawful permanent residents. However, confusion persists at airports both here and abroad. For example, it has been reported that some individuals have not been permitted to board U.S.-bound flights, and that upon arrival in the United States, other individuals have been subjected to inconsistent treatment, including detention by Customs and Border Protection ("CBP") officers or often lengthy screenings. Additionally, in some cases, individuals are reportedly unable to communicate with their family members or legal counsel. Although the legal landscape is continuing to evolve, as we describe below, this Client Alert provides an overview of the Executive Order, the district court decisions enjoining portions of the Executive Order, and guidance that may assist companies and others impacted by the Executive Order. As we understand that responding to inquiries involving the Order may be our clients' most pressing concern, we start with a brief background of the Executive Order and provide guidance companies may want to consider. We then provide an overview of the legal landscape that exists as of Monday, January 30, 2017. This alert is informational only, and you should, of course, seek legal advice specific to any particular situation. Please note that we have published a supplement to this Client Alert regarding later relevant events, which is available here.
* * *The issues described in this Client Alert are rapidly changing. Gibson Dunn is dedicated to staying at the forefront of these issues for the benefit of our friends and clients, and will update you with significant developments.