In an opinion yesterday, Judge Scheindlin dismissed for lack of standing claims brought by a plaintiff (“FTE”) claiming that the defendants had misappropriated trademarks to the Stolichnaya vodka brand. The Second Circuit held last year that FTE lacked standing, and the Russian Federation thereafter issued a degree apparently aimed at curing the issue. Judge Scheindlin’s opinion yesterday concluded that, under Russian law, the decree nonetheless failed to cure the standing problem, but she expressed discomfort with having to resolve an important Russian law question of first impression:
Based on the evidence before the Court, I find that FTE cannot hold exclusive rights to trademarks outside of operative management. This has not been an easy decision. I am somewhat uncomfortable telling a foreign government that a validly enacted decree cannot achieve the result that was clearly intended by its passage. I am also uncomfortable interpreting various sections of the laws of a foreign country – which I can only review in imperfect translation – when those sections have not yet been addressed and defined by the courts of that country. But Rule 44.1 requires me to determine the relevant foreign law in a dispute pending in a U.S. court. While I can rely on all available sources, and credit whatever expert testimony I choose, there is one thing I cannot do which would be the most helpful. I cannot certify these unsettled questions of Russian law to the Russian courts. Given the increasing frequency with which high-stakes international disputes are litigated in U.S. courts, especially in this one, I agree with the sentiments expressed by Judge Raymond Lohier of the Second Circuit in a recent concurring opinion: it may be prudent for Congress to consider developing an international certification process similar to our domestic one “pursuant to which federal courts may certify an unsettled and important question of foreign law to the courts of a foreign country.” While creating and implementing such a system would present many obstacles, both legal and practical, the policy concerns implicated by the current case warrant further consideration.