OBB Personenverkehr AG v. Sachs - Oral Argument - October 05, 2015 Page 2

OBB Personenverkehr AG v. Sachs

Media for OBB Personenverkehr AG v. Sachs

Audio Transcription for Opinion Announcement - December 01, 2015 in OBB Personenverkehr AG v. Sachs

Audio Transcription for Oral Argument - October 05, 2015 in OBB Personenverkehr AG v. Sachs

Juan C. Basombrio:

There's a three-step analysis, Your Honor, in Nelson.

First, you have to identify the particular conduct, the actions, not the causes of action, which is what the en banc court did. They focused on the legal claims. This Court said you have to focus on the acts.

Here, the acts --

Sonia Sotomayor:

So we did that in the context of deciding when something was a sovereign act as opposed to a commercial act.

We know this is a commercial act. So -- and we -- I'm just confused.

Why isn't the work -- why shouldn't the work be done by substantial contact with the U.S.?

Juan C. Basombrio:

It's a three-step analysis. First, you identify the activity.

Secondly, you decide whether it is commercial or not.

Sonia Sotomayor:

Whether it's --

Juan C. Basombrio:

And third, whether there's substantial contact.

Sonia Sotomayor:

-- commercial or sovereign.

Juan C. Basombrio:

So there are three steps. What I'm saying is that the Ninth Circuit erred.

They didn't look at the conduct first.

They looked at the legal claims.

If you look at the --

Sonia Sotomayor:

Even if they had looked at the conduct, it's commercial.

Juan C. Basombrio:

It's commercial.

But if you look at the conduct and you identify it as the accident in Austria -- which is what the plaintiff claimed.

In JA 15, paragraphs 3 to 8, they alleged that there was an unsafe boarding platform, a gap at the platform, et cetera, et cetera. All of these things happened in Austria --

Samuel A. Alito, Jr.:

But how do you propose -- how do you propose that we determine whether it's based on commercial activity? Take their failure-to-warn claim.

Why isn't that based on something that occurred in the United States? You're just -- are you just asking us to -- to step back and say, well, in that case we -- we really think they're just trying -- they have a -- they have a tort that occurred in Austria, a negligence tort that occurred in Austria, and they're just trying to plead around it with these other claims?

Juan C. Basombrio:

Well, there's no allegation in the Complaint that the failure to warn was something that happened in the United States.

It's found in the same set of paragraphs, 3 through 8, that relate to the acts and omissions in Austria. It also would make no sense to argue that there was a failure to warn in the United States because that would mean that the Eurail Pass itself would have to warn about all conditions at hundreds of potential railroad stations in Europe.

Samuel A. Alito, Jr.:

Well, it might be -- it might be a claim that couldn't prevail, but why does that answer the question?

Juan C. Basombrio:

Well, the failure to warn that's alleged relates to the facts that arise in Austria, and, therefore, the cause of action arises in Austria because that's where the acts or omissions occurred if -- if one looks at what's alleged in the Complaint itself.

Elena Kagan:

Would -- would you agree and -- and, as you've been doing, take out the agency question -- but would you agree if -- if what had happened here was that the ticket was not honored.

You know, the plaintiff bought a ticket, and the ticket was not honored, and -- and the suit was where the ticket was purchased, would you agree that that's based-on?

Juan C. Basombrio:

If this was a breach of contract case --

Elena Kagan:

Just a breach of contract case.

Juan C. Basombrio:

-- and the breach -- the allegation of the breach was that when the Respondent showed up they did not honor the ticket, that would be based upon an activity in Austria because it's in Austria that that ticket got honored.