Johnson & Johnson et al v. The American National Red Cross et al

Filing 60

MEMORANDUM OF LAW in Opposition re: 47 MOTION for Summary Judgment.. Document filed by Learning Curve International, Inc., Magla Products, LLC, Water-Jel Technologies, Inc., First Aid Only, Inc., The American National Red Cross. (Abram, Jonathan)

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Johnson & Johnson et al v. The American National Red Cross et al Doc. 60 Jonathan L. Abram Raymond A. Kurz HOGAN & HARTSON L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 Tel: (202) 637-5681 Fax: (202) 637-5910 Attorneys for Defendants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Plaintiffs, v. THE AMERICAN RED CROSS, LEARNING CURVE INTERNATIONAL, INC., MAGLA PRODUCTS, LLC, WATER-JEL TECHNOLOGIES, INC., and FIRST AID ONLY, INC., Defendants. 07 Civ. 7061 (JSR/DCF) ECF CASE ELECTRONICALLY FILED OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Dockets.Justia.com TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................................. PRELIMINARY STATEMENT ........................................................................................... COUNTERSTATEMENT OF FACTS ................................................................................. ARGUMENT ........................................................................................................................ POINT I. J&J IS MISTAKEN ABOUT THE AUTHORITY GRANTED TO THE AMERICAN RED CROSS IN ITS CHARTER AND THROUGH ITS INTERNATIONAL AFFILIATIONS ............................... ARC's Federal Charter And 18 U.S.C. 706................................................ 1. 2. 3. 4. B. Statutory Protections And Prohibitions On Use Of The Emblem .............................................................................................. J&J Lacks Standing To Argue That ARC's Conduct Exceeds The Scope Of Its Federal Charter ........................................ ARC's Charter Authorizes It To Sell Products And Services, And It Has Been Doing So For Over A Century................ ARC's Sales Of Red Cross Products Are Not Illegal Under 706................................................................................................... iii 1 4 4 4 5 5 9 9 11 20 A. Geneva Conventions And The ICRC Regulations......................................... 1. The Geneva Conventions All Preserve The Emblem To The National Red Cross Societies, And Bar Its Use By Any Private Entity Without Exception ...................................................... The Geneva Conventions Are Not Self-Executing And Are Not Enforceable By J&J .................................................................... ARC Is Not Violating The Geneva Conventions In Any Event, And Is Acting Within The Authority Granted To It By The U.S. Congress........................................................................ J&J Also Cannot Rely On The 1991 ICRC Regulations ................... 20 20 2. 3. 25 27 4. i TABLE OF CONTENTS--Continued Page POINT II. THE AMERICAN RED CROSS HAS ACTED WITHIN ITS RIGHTS IN AUTHORIZING THE OTHER DEFENDANTS--AND MANY OTHER COMPANIES OVER THE LAST 100 YEARS--TO MANUFACTURE AND SELL PRODUCTS BEARING THE AMERICAN RED CROSS NAME AND EMBLEM ................................... J&J'S SUMMARY JUDGMENT MOTION REGARDING ARC'S COUNTERCLAIMS MUST FAIL BECAUSE THE UNDISPUTED FACTS SHOW THAT J&J HAS EXCEEDED ITS GRANDFATHERED RIGHTS UNDER 706 .......................................................... J&J Has Varied The Form Of The Symbol From That In Use Before 1905................................................................................................................ J&J Is Using The Red Cross On Products It Did Not Sell In 1905. .............. THE DEFENDANTS HAVE STANDING TO SEEK CANCELLATION......................................................................................... 31 POINT III. 34 34 38 39 40 A. B. POINT IV. CONCLUSION...................................................................................................................... CERTIFICATE OF SERVICE ii TABLE OF AUTHORITIES Page CASES: Aerogroup Int'l, Inc. v. Marlboro Footworks, Ltd., 977 F. Supp. 264, 267 (S.D.N.Y. 1997) ............................................................................................................... Ala. Power Co. v. Ickes, 302 U.S. 464, 482-483 (1938) ....................................................... Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 420 (2003)...................................................... 39 9 24 Automation By Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749, 757 (7th Cir. 2006)..................................................................................................................13, 16 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964)........................................ Berry v. Housing & Home Fin. Agency, 340 F.2d 939, 940 (2d Cir. 1965) ......................... Botiller v. Dominguez, 130 U.S. 238, 247 (1889)................................................................. Butler v. Maples, 76 U.S. 766, 774 (1869) ............................................................................ Chinese Exclusion Cases, 130 U.S. 581, 603 (1889) ............................................................ Citigroup Inc. v. City Holding Co., 2003 WL 282202, at *15 (S.D.N.Y. Feb. 10, 2003) ................................................................................................. Cohn & Berk v. Rothman-Goodman Mgmt. Corp., 125 A.D.2d 435, 436 (N.Y. App. Div. 1986) ..................................................................................................... Connally v. Gen. Constr. Co., 269 U.S. 385, 391-392 (1926)............................................... Consejo de Desarrollo Economico de Mexicali v. United States, 417 F. Supp. 2d 1176, 1184 (D. Nev. 2006).................................................................... Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1025 (W.D. Wash. 2005), aff'd, 503 F.3d 974 (9th Cir. 2007).................................................................................. 24 9 23 15 23 40 20 14 23 21 Cotz v. Mastroeni, 476 F. Supp. 2d 332, 373 n.44 (S.D.N.Y. 2007)..................................... 29-30 Dickson v. United States, 831 F. Supp. 893, 898 n.7 (D.D.C. 1993) .................................... EEOC v. Watergate at Landmark Condominium, 24 F.3d 635, 639 (4th Cir. 1994).................................................................................................................. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 160 (1999) ........................... iii 29 15 23 TABLE OF AUTHORITIES--Continued Page Enron Power Mktg., Inc. v. Luzenac Am., Inc., 2006 WL 2548453, at *12 (S.D.N.Y. Aug. 31, 2006) ..................................................................................... FDIC v. Schaffer, 731 F.2d 1134, 1137 & n.5 (4th Cir. 1984).............................................. Flanagan v. United States, 430 F. Supp. 2d 106, 115 (W.D.N.Y. 2006)............................... Flintridge Station Assocs. v. Am. Fletcher Mortgage Co., 761 F.2d 434, 439 (7th Cir. 1985) ................................................................................... Flores v. S. Peru Copper Corp., 414 F.3d 233, 257 n.34 (2d Cir. 2003) ............................... Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 873 (D.C. Cir. 2006) ....................... Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)....................................................... Hartzell Fan, Inc. v. Waco, Inc., 505 S.E.2d 196, 199-200 (Va. 1998)................................. Hawaii-Pacific Apparel Group, Inc. v. Cleveland Browns Football Co., 418 F. Supp. 2d 501, 507-508 (S.D.N.Y. 2006) .............................................................. 14 13 9 15 21 22 14 16 33 Hines v. Davidowitz, 312 U.S. 52, 63 (1941)........................................................................24, 25 Humane Soc'y of the United States v. Glickman, 217 F.3d 882, 887 (D.C. Cir. 2000) ............................................................................................................... In re Assicurazioni Generali S.p.a. Holocaust Ins. Litig., 340 F. Supp. 2d 494, 502 (S.D.N.Y. 2004) ............................................................................................................... In re Sicari, 187 B.R. 861, 871 (Bankr. S.D.N.Y. 1994) ....................................................... Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 439 n.16 (D.N.J. 1999) ........................... Jones v. United States, 526 U.S. 227, 239 (1999) ................................................................. Kelberine v. Societe Internationale, Etc., 363 F.2d 989, 993 (D.C. Cir. 1966) ............................................................................................................... Kuenstler v. Occidental Life Ins. Co., 292 F. Supp. 532, 534-535 (C.D. Cal. 1968)............................................................................................................... Loctite Corp. v. Nat'l Starch & Chem. Corp., 516 F. Supp. 190, 212 n.30 (S.D.N.Y. 1981) ............................................................................................................... Mears v. Montgomery, 2004 WL 964093, at * 14 (S.D.N.Y. May 5, 2004)......................... iv 21 24 14 21 14 13 13 39 40 TABLE OF AUTHORITIES--Continued Page New Orleans, M. & T.R. Co. v. Ellerman, 105 U.S. 166, 173-174 (1881) ........................... 9 O-M Bread, Inc. v. U.S. Olympic Committee, 65 F.3d 933, 936-938 (Fed. Cir. 1995)........................................................................................................ 35, 36, 38 Overton v. United States, 2000 WL 14274, at *4 (10th Cir. Jan. 7, 2000)............................ P. T. Perusahaan Pelayaran Samudera Trikora Lloyd v. Salzachtal, 373 F. Supp. 267, 277 (E.D.N.Y. 1974) .......................................................................... Pro-Cuts v. Schilz-Price Enters. Inc., 27 U.S.P.Q.2d 1224 (T.T.A.B. 1993) ........................ Rogers v. Tennessee, 532 U.S. 451, 457 (2001).................................................................... Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 918 (2d Cir. 1987) .......................... 30 15 36 14 10 Shanklin v. Allis-Chalmers Mfg. Co., 254 F. Supp. 223, 226 (S.D. W. Va. 1966), aff'd, 383 F.2d 819 (4th Cir. 1967) ................................................15, 16 Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614 (1989) ............................. 13 Starter Corp. v. Converse, Inc., 84 F.3d 592, 596 (2d Cir. 1996).......................................... 39-40 Stutts v. De Dietrich Group, 2006 WL 1867060, at *7 (E.D.N.Y. June 30, 2006) ............... 20-21 Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984).............................. Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 139 (1939)............................. Trs. of Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 334 (8th Cir. 2006).................................................. United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001) ........................................... United States v. Fort, 921 F. Supp. 523, 526 (N.D. Ill. 1996) ............................................... United States v. Pinelli, 890 F.2d 1461, 1471 (10th Cir. 1989)............................................. 21 9 9 21 21 12 United States v. Rommy, 2007 WL 3243813, at *18 (2d Cir. Nov. 5, 2007) .......................21, 22 United States v. Vitillo, 490 F.3d 314, 323 (3d Cir. 2007)....................................................12, 17 Van Dyne-Crotty, Inc. v. Wear-Guard Corp., 926 F.2d 1156 (Fed. Cir. 1991)..................... Zschernig v. Miller, 389 U.S. 429, 432 (1968)...................................................................... v 36 24 TABLE OF AUTHORITIES--Continued Page STATUTES: 18 U.S.C. 666(d) ................................................................................................................. 18 U.S.C. 666(d)(1) ............................................................................................................ 18 U.S.C. 705...................................................................................................................... 12 13 8 18 U.S.C. 706......................................................................................................................passim 36 U.S.C. 300101-300113 ................................................................................................ 36 U.S.C. 300102(4) ........................................................................................................... 36 U.S.C. 300102(5) ........................................................................................................... 36 U.S.C. 300105(a)(6)............................................................................................. TREATIES: 1949 Geneva Convention Commentary to art. 44, nn. re 2 4 ..........................................25, 27 Geneva Convention for the Amelioration of the Conditions of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, art. 44, 6 U.S.T. 3114....................................................................................................... 9 9 8, 9 8, 10, 11 22 Geneva Convention for the Amelioration of the Conditions of the Wounded of the Armies in the Field, July 6, 1906, art. 27, 35 Stat. 1885.......................22, 26 LEGISLATIVE MATERIALS: An Act to Incorporate the American National Red Cross, 31 Stat. 277 (1900) .................... An Act to Incorporate the American National Red Cross, 33 Stat. 599 (1905) ................... 5 6 An Act to Amend an Act Entitled "An Act to Incorporate the American National Red Cross," 36 Stat. 604 (1910) ...................................................................................... 6-7, 8 H.R. Rep. No. 61-1256, 61st Cong., 2d Sess. (May 3, 1910)................................................ 7 Protection of the Name and Emblem of the [ARC]: Hearings on H.R. 6911 Before the H. Comm. on Foreign Affairs, 77th Cong. ("1942 House Hearings") 233, 257-258, 262 (1942)........................................1, 10 vi TABLE OF AUTHORITIES--Continued Page Red Cross: Hearings on S. 2411 and H.R. 7420 Before the Subcomm. of the S. Comm. on the Judiciary, 77th Cong. ("1942 Senate Hearings") 29 (1942) .................... OTHER AUTHORITIES: American Heritage Dictionary (4th ed. 2004) ....................................................................... 12 7 Black's Law Dictionary 68 (8th ed. 2004).............................................................................12, 13 3 Thomas J. McCarthy, McCarthy on Trademarks & Unfair Competition 17:26 (4th ed. 2007)......................................................................................................36, 37 3 Thomas J. McCarthy, McCarthy on Trademarks & Unfair Competition 18:48, 18:52 (4th ed. 2007)......................................................................................... N.Y. Jur. Equity 13 (2d ed. 2007)...................................................................................... 33 20 Restatement (First) of Agency (1933) ...................................................................................14, 15 Restatement (Third) of Agency (2006)..................................................................................11, 14 Restatement (Third) of Foreign Relations Law of the United States (1987).........................21, 22 Statutes of the International Red Cross and Red Crescent Movement, art. 1 (2006) ............ 28 vii PRELIMINARY STATEMENT J&J has now proffered yet another new theory in its effort to find a basis to stop the American Red Cross ("ARC") from using the Red Cross Emblem in selling goods and services to the American public. Now J&J claims that international law forbids it. Interestingly, none of the international treaties on which J&J now relies came in for even passing mention in J&J's Complaint or Amended Complaint or at the hearing on the motion to dismiss. Like its original promissory estoppel claim and its theory that the ARC Charter prevents ARC from selling products to the American public, this new theory is flatly wrong. Before addressing why, though, we note that the parties have found common ground in one important respect. The Emblem has always conveyed a clear message in times of war, a message respected by armies around the world who steer clear of attacking field hospitals and other facilities bearing the Red Cross. This message is important, and we agree with J&J that all who have the right to use the Red Cross must assure that it is not used in ways that diminish its message of first aid and emergency care in wartime. J&J learned that lesson the hard way. As the Court is aware, just after Pearl Harbor, President Roosevelt proposed to ban all grandfathered uses of the Emblem to protect its critical wartime message. In the course of lobbying to protect its grandfathered use of the Red Cross, J&J was embarrassed by the fact that it had painted a giant Red Cross on the smokestack of one of its industrial plants--just exactly the kind of use that blurs the Emblem's wartime message. 1942 House Hearings at 233 (J&J App. 53, Part 10). ARC and the other defendants are committed to assuring that such uses not occur. For the record, we believe J&J now is as well. Having said that, J&J's effort to stop the Red Cross from using the Red Cross Emblem remains utterly without merit. Its analysis of ARC's Charter and of 706 continues to miss the boat entirely. As we showed in our opening Memorandum in support of summary judgment, the Charter undeniably empowers ARC to sell products to the public, and 706 criminalizes only those who use the Emblem without ARC's authorization. J&J's argument also ignores ARC's longstanding practice--begun more than 100 years ago--of partnering with manufacturing and publishing partners to market a wide array of ARC-branded products that promote ARC's important safety and preparedness mission--sales that Congress, the Department of Justice, and the IRS have been fully aware of and about which they have raised no question. J&J's argument would also lead to absurd and disastrous results. The various products that ARC has sold throughout its long history--from first aid kits to blood products--have helped fund the vital humanitarian work that ARC does. Likewise, J&J's newly minted appeal to international law is fundamentally flawed on a host of levels. First, of course, it is up to Congress, not J&J, to implement the requirements of the Geneva Convention within the United States. Congress has done just that, and in doing so has repeatedly made clear that certain commercial uses of the Emblem are permitted in this country. Over 100 years ago, Congress expressly protected the ARC's right to use the Emblem in trade and commerce, even as it prohibited almost everyone else from doing so. The Geneva Conventions are not self-executing. They are implemented here in the United States only by acts of Congress, and the law is crystal clear that in such circumstances private entities like J&J have no standing or right of action to enforce treaty obligations--either directly under the treaty or indirectly through state tort law. Instead, parties within the United States are bound by the actions of Congress. Congress has acted. Second, J&J's argument is directly contrary to its own position on the matter, a position J&J has taken repeatedly in defense of its grandfathered use of the Red Cross symbol. In 1910 2 and in 1942, J&J staunchly defended its use of the symbol against the argument that commercial uses of the Red Cross conflicted with the United States' obligations under the Geneva Conventions. If Congress violated the Geneva Conventions by allowing ARC to use the Emblem in selling goods and services, so too did it violate the treaty by allowing J&J to do the very same thing. To be sure, ARC has argued in the past that grandfathered uses of the Red Cross should be banned, and the defendants are agnostic on that point in this litigation. But there is no question that as the law now stands, Congress has explicitly recognized the right of the ARC and grandfathered users to use the Red Cross in selling goods and services. Third, J&J cites the guidelines of the International Committee of the Red Cross ("ICRC"), but it misses the mark here as well, for several reasons. J&J has no standing to enforce the ICRC guidelines. In addition, the guidelines do not have the force of United States law, which from the beginning of ARC's existence have explicitly protected the ARC's right to use the Emblem in the sale of goods and services like first aid and preparedness kits and blood services and products. But putting aside the fatal jurisdictional flaws, J&J is also wrong on the merits. The ICRC guidelines do not forbid use of the Emblem in the sale of first aid and preparedness items any more than they prohibit use of the Emblem in the sale of blood services and products. As to the Counterclaims, J&J is asking to be allowed to use the Emblem in virtually any new way it likes, as long as the use is vaguely related to J&J's pre-1905 use of the symbol. But that is not how grandfathered rights work. As the case law establishes, grandfathered rights like J&J's are strictly construed, because by definition they allow one to do what would be a crime if done by others. J&J's grandfathered use remains today, but it remains exactly as J&J was using the symbol in 1905. 3 At bottom, J&J's summary judgment motion reads as though J&J has appointed itself the ARC Mission Police, responsible for monitoring ARC's adherence to the organization's "core values" and "humanitarian mission." See, e.g., J&J Memorandum in Support of Motion for Summary Judgment ("J&J Mem.") 1, 4-5, 7, 8, 11, 13. With all due respect to J&J, it is not up to J&J to police, define, implement, or ensure funding for ARC to further the organization's core values and mission. It is up to the American Red Cross, under the supervision of Congress. The ARC has been doing just that for over a century. See Defendants' Rule 56.1 Statement of Facts in Support of Their Motion for Summary Judgment ("Defs' SJ SOF") 36-137. J&J has offered nothing to support its unfounded effort to use private litigation to second-guess those decisions. Therefore, J&J's Motion for Summary Judgment should be denied. COUNTERSTATEMENT OF FACTS A complete response to J&J's statement of undisputed facts material to this motion is set forth in Defendants' Response to Plaintiffs' Rule 56.1 Statement of Undisputed Facts and Defendants' Counter-Statement of Material Facts ("Responsive SOF"). ARGUMENT POINT I. J&J IS MISTAKEN ABOUT THE AUTHORITY GRANTED TO THE AMERICAN RED CROSS IN ITS CHARTER AND THROUGH ITS INTERNATIONAL AFFILIATIONS. J&J dramatically asserts that "[t]he illegality of ARC's actions permeates the causes of action in this litigation." J&J Mem. 2. It is surely true that in order to sustain its various claims, J&J must prove that it is unlawful for ARC to sell ARC products and services and to authorize others to use the Emblem in doing so. As a matter of law, neither ARC's sales of products nor its license agreements with the other defendants violate any of the "governing" law that J&J cites--much of which, as detailed below, is actually not governing law or does not provide any enforceable rights to a private-party competitor like J&J. Nor is J&J correct to call the conduct 4 at issue "unprecedented" (J&J Mem. 1), given ARC's extensive history of selling products to the public, which we chronicled in great detail in our motion for summary judgment and 56.1 statement. A. ARC's Federal Charter And 18 U.S.C. 706 1. Statutory Protections And Prohibitions On Use Of The Emblem. J&J opens its argument with an exercise in revisionist history. Purporting to canvass the history of ARC's charter, J&J offers an incomplete and inaccurate study. Because this history is so fatal to J&J's claims, we provide the full story below. 1900 Charter. When Congress chartered the American National Red Cross in 1900, it gave ARC the right to use the Red Cross Emblem in carrying out ARC's purposes. Congress spelled out six broad purposes for the organization: the first and second were to provide volunteer aid in time of war and to perform the duties of a national society, in accord with the Geneva Convention; the third was to succeed to all the rights and property which were held at that time by the American National Red Cross; and the fourth was to communicate between citizens and the army. 31 Stat. at 279 (J&J App. 1). The critical fifth and sixth purposes were to "continue and carry on a system of national and international relief in time of peace and apply the same in mitigating the sufferings caused by pestilence, famine, fire, floods, and other great national calamities" and "to devise and carry on measures for preventing the same, and generally to promote measures of humanity and welfare of mankind." Id. Selling first aid, emergency preparedness, and other health products is clearly within these purposes. The 1900 Charter also made it illegal for anyone to wear or display the Red Cross "for the fraudulent purpose of inducing the belief that he is a member of or an agent for the American National Red Cross." Id. J&J is just wrong in claiming that the 1900 Charter precluded ARC 5 from engaging in "commercial" activity to further its purposes in advancing a system of national relief, mitigating suffering, and devising measures to do the same. It said no such thing. 1905 Charter. The 1905 Charter likewise gave ARC the right "generally to do all such acts and things . . . as may be necessary to carry into effect the provisions of this Act and promote the purposes of [ARC]." 33 Stat. at 600 (J&J App. 2). It contained the same list of purposes. Id. Thus, like the 1900 Charter, the 1905 version contains no limitation on ARC engaging in commercial activity to further its purposes in advancing a system of national relief, mitigating suffering, and devising measures to do the same. In fact, the 1905 Charter actually authorized just that. As has been quoted a few times before in this case, the 1905 Charter made it unlawful for "any person or corporation, other than the Red Cross of America, not now lawfully entitled to use the sign of the Red Cross, hereafter to use such sign or any insignia colored in imitation thereof for the purposes of trade or as an advertisement to induce the sale of any article whatsoever." 33 Stat. at 601 (emphases added). Thus, as long ago as 1905, Congress expressly permitted ARC to use the Emblem for the purposes of advertising or selling products to the public. Congress was aware that ARC was doing just that when it adopted the 1905 Charter, for ARC had submitted annual reports to Congress for the preceding two years documenting its sales of first aid kits and royalties from such sales. Defs' SJ SOF 37-38. 1910 Amendments. The provision protecting the Red Cross Emblem against misuse was amended in 1910, after the 1906 Geneva Convention. As amended, the provision still made it unlawful for any person other than the American National Red Cross, its employees and agents, and the military medical services to use the Emblem for the "purpose of trade or as an advertisement to induce the sale of any article whatsoever or for any business or charitable 6 purpose." 36 Stat. at 604 (J&J App. 3).1 The amended statute then carved out an exception for grandfathered uses of the Red Cross--those that existed before 1905--permitting them to continue "for the same purpose and for the same class of goods." Id. Indeed, this was J&J's handiwork. The original bill would have eliminated the grandfather exception and flatly banned use of the Emblem by non-ARC entities. The exception was only added to the bill because "a very large company manufacturing surgical dressings and surgical goods in New Jersey" opposed the bill unless it excepted grandfathered uses. See H.R. 14430, 65th Cong. 3d Sess., at 373 (Statement of Colonel Joseph M. Hartfield) (J&J App. 53, part 16).2 The very House Report that J&J cites (J&J Mem. 16) gives some insight into how the restrictions in the 1910 amendment changed use of the Emblem: Under the 1905 Charter, the Emblem could lawfully be used "by the following persons and corporations and for the following purposes": (1) By the Red Cross of America. (2) By persons or corporations lawfully entitled to the use of the emblem prior to [1905]. (3) By any person or corporation, for any purposes except for the purposes of trade or as an advertisement to induce the sale of any article. H.R. Rep. No. 61-1256, 61st Cong., 2d Sess., at 346 (May 3, 1910) (J&J App. 53, part 15). After the amendment, the Emblem could lawfully be used: (1) By the American National Red Cross and its duly authorized employees and agents. (2) By the army and navy sanitary and hospital authorities of the United States. Indeed, even J&J has in the past read the 1910 Charter to authorize ARC's use of the Emblem in commerce. 1942 Senate Hearing 29 (J&J's testimony acknowledging that ARC's 1910 Charter language "would appear to permit commercial use by the [ARC] of the Red Cross symbol in commerce") (J&J App. 54, Part 2). J&J wrongly asserts that Colonel Hartfield was talking about the 1905 Charter. See J&J Mem. 13-14. Colonel Hartfield addressed the amended grandfather provision in the 1910 Charter, and specifically why Congress had carved out an exception for certain grandfathered users despite the provisions of the 1906 Geneva Convention. 7 2 1 (3) By such persons, corporations, and associations as actually used the emblem prior to January 5, 1905, for the purposes for which they were so entitled to use it and for the same class of goods. Id. at 347. There is no indication that Congress thought it was placing any limits on ARC's use of the Emblem for any purpose. In 1948, the U.S. criminal law was codified in the now familiar Title 18, and the provisions imposing criminal penalties for unlawful use of the Emblem were moved there. Under 706, only ARC, its duly authorized employees and agents, and certain military hospital authorities may use the Red Cross Emblem in any way and for any purpose, except for grandfathered users who were lawfully using the mark in June 1948 (i.e., individuals who had used the Emblem for a lawful purpose prior to 1905 who continued to use it "for the same purpose and for the same class of goods"). 36 Stat. at 604.3 ARC's current charter--which J&J's brief conveniently flits right over--includes all of the same purposes listed since ARC's 1900 Charter, as well as the open-ended purpose to "conduct other activities consistent with" the other specified purposes. 36 U.S.C. 300102(5). And its currently enumerated powers include the power to do any "act necessary to carry out this chapter and promote the purposes of the corporation." Id. 300105(a)(6). J&J omits these important statutory powers and purposes from its brief. Thus, from 1900 to today, Congress has never adopted any provision of law that would bar the ARC from engaging in its longstanding practice of selling goods and services to the American public. J&J twice claims that the recodification involved changes in " `phraseology' "--both as to the meaning of the term "use" (J&J Mem. 18) and the scope of grandfathered rights (id. at 36). J&J is in fact quoting the Legislative History reviser's note for 18 U.S.C. 705, not 706. In fact, the 1948 prohibition is broader because it bars all uses, not just the uses for business or charitable purposes that were barred by the 1910 Charter. 8 3 2. J&J Lacks Standing To Argue That ARC's Conduct Exceeds The Scope Of Its Federal Charter. Even if there were some question about the scope of ARC's charter powers, J&J has no standing to raise it. The law has long been settled that a competitor cannot challenge the activities of another on the ground that they exceed the other's corporate charter. See New Orleans, M. & T.R. Co. v. Ellerman, 105 U.S. 166, 173-174 (1881) (competitor has no remediable injury in preventing competition, regardless of whether competition is allegedly ultra vires); accord Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118, 139 (1939); Ala. Power Co. v. Ickes, 302 U.S. 464, 482-483 (1938); Berry v. Housing & Home Fin. Agency, 340 F.2d 939, 940 (2d Cir. 1965); see also 36 U.S.C. 300101-300113 (ARC Charter contains no private right of action). Nor does J&J offer any authority for using state tort law to circumvent its lack of standing under federal law to make a claim based on ARC's charter powers.4 3. ARC's Charter Authorizes It To Sell Products And Services, And It Has Been Doing So For Over A Century. As we have already shown at length,5 the ARC Charter imbues the organization with a mission of national relief in times of peace and with devising and carrying out measures for preventing calamities, as well as with conducting other activities consistent with promoting national relief and preventing injury or harm to the American people. 36 U.S.C. 300102(4), (5). And its current charter broadly empowers it to do any "act necessary to carry out this chapter and Cf. Trs. of Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 334 (8th Cir. 2006) ("If state tort law could be used to determine the meaning and effect of [collective bargaining agreements] to evade compliance with their terms under federal law, the uniform system envisioned by Congress for their interpretation and enforcement would be disrupted."); Flanagan v. United States, 430 F. Supp. 2d 106, 115 (W.D.N.Y. 2006) ("A plaintiff may not circumvent the [Federal Tort Claims Act] by artfully pleading a claim as one for negligence when it is in reality a claim to which the United States remains immune, such as a strict liability claim."). 5 4 See Defs' Summ. J. Mem. 10-21. 9 promote the purposes of the corporation." Id. 300105(a)(6). Activities like selling first aid or emergency-preparedness kits to the American public are unquestionably consistent with and authorized by ARC's mission, purposes, and powers. Even if there were any ambiguity with such an expansive open-ended grant of power, it would be resolved in favor of the ARC. That is because, as J&J itself acknowledges, ARC's "interpretation of its own powers is entitled to weight." J&J Mem. 26. We agree. And, as J&J also correctly concedes, this Court should accord "great weight" to a longstanding interpretation of a statute by the entity charged with its interpretation. Id. We agree again. Here, both ARC and the Department of Justice--the entity charged with interpretation of 706--share the same longstanding interpretation. See, e.g., Rose v. Long Island R.R. Pension Plan, 828 F.2d 910, 918 (2d Cir. 1987) (holding the interpretations of a statute by an agency charged with its administration "are entitled to great deference"). Even more, the Internal Revenue Service joined the chorus in 1985, and Congress--having refused to diminish ARC's powers or otherwise upset ARC's longstanding marketing initiatives--has likewise demonstrated that it has no objection. In the face of this 100-year practice and authorization, J&J plucks from the historical record a single document: the 1942 Biddle letter. But nothing in the Biddle letter suggested that ARC could not sell, or license the sale of, Emblem-bearing products in order to further or fund the organization's critical humanitarian work. Again, the best reading of the letter is that it is consistent with the view articulated by ARC witnesses in the 1942 hearings: that ARC cannot engage in commercial enterprise just to turn a profit. See, e.g., 1942 House Hearing at 257-258 (statement of Mrs. Belmont); Letter from Mr. Davis to Chairman Bloom, reprinted in 1942 House Hearing at 262; Answer 39, 43-45 (quoting 1942 legislative hearing testimony). 10 Finally, with respect, J&J goes too far in claiming that sales of ARC products mean "the humanitarian volunteer mission of ARC barely exists." J&J Mem. 26. Forgive us, but where was J&J on 9-11? Where was it in the aftermath of hurricanes, and bridge collapses, and wild fires, and where is it today at the myriad house fires and other disasters that befall Americans every day? The humanitarian mission of the American Red Cross is alive and well, pursued every day by dedicated people of the ARC, by ARC's manufacturing and publishing partners, and by thousands upon thousands of volunteers. And that mission is plainly supported and furthered by a 100-year history of selling first aid kits, and by selling the many other products-- including half the Nation's blood supply--that we detailed in our Statement of Facts. Defs' SJ SOF 36-137. Indeed, to deprive ARC of the funding it receives from its sales (and has received for more than a century) would fundamentally impair ARC's ability to pursue its mission. That is not the result Congress desired when it expressly authorized ARC to perform any "act necessary to carry out this chapter and promote the purposes of the corporation." 36 U.S.C. 300105(a)(6). 4. ARC's Sales Of Red Cross Products Are Not Illegal Under 706. Besides viewing itself as ARC's Mission Police, J&J also apparently considers itself better equipped to interpret and enforce federal criminal law than federal prosecutors. J&J's argument is fundamentally flawed in at least four ways. 1. In its primary argument under 706, J&J lifts the word "agent" from the phrase permitting use of the Emblem by ARC and its "duly authorized agents and employees." J&J's argument is that Congress meant to constrain use of the Emblem by incorporating wholesale into the criminal statute the Restatement (Third) of Agency and common law agency principles, and to make criminals of anyone using the Emblem if they are not ARC's agent for all purposes under that body of law. J&J Mem. 28-34. J&J is wrong for a host of reasons. 11 Persons of ordinary intelligence looking at 706 would accord the phrase "duly authorized agent" its plain, everyday meaning. After all, Congress gave no indication that it intended to import sub silento into 706 the peculiar aspects of each state's common law of agency or the agency principles as articulated in the Restatement. The common understanding of "agent" is someone who has permission to act on behalf of someone else. See, e.g., American Heritage Dictionary (4th ed. 2004) (defining "agent" as "[o]ne that acts or has authority to act" and "[o]ne empowered to represent or act for another"). Even Black's Law Dictionary defines "agent" by reference to authorization, not hoary common law or Restatement of Agency principles. See Black's Law Dictionary 68 (8th ed. 2004) (defining "agent" as "[o]ne who is authorized to act for or in place of another"). This comports precisely with the interpretation of 706 that the Department of Justice gave in 1978: the key is whether ARC authorized a third-party to use the Emblem in the way the third party has used it. If so, that party is a duly authorized agent and not a criminal under 706; if not, that party is a pretender and indictable. Defs' SJ SOF 82-84. While no court has yet addressed the meaning of "agent" under 706, courts have interpreted the word in other criminal statutes. In doing so, they have consistently refused to import the lines drawn by the Restatement or common law. For example, in analyzing definition of the term "agent" in 18 U.S.C. 666(d), the Third Circuit specifically refused to "consult extrinsic sources, such as the Restatement of Agency," because "[t]o do so might result in the improper importation of extraneous language into the statutory text." United States v. Vitillo, 490 F.3d 314, 323 (3d Cir. 2007). Courts have specifically noted that the best way to interpret a term used in a federal criminal statute is by reference to its use in other federal criminal statutes. See, e.g., United States v. Pinelli, 890 F.2d 1461, 1471 (10th Cir. 1989). To our knowledge, the 12 only statute in Title 18 defining "agent" does so as "a person authorized to act on behalf of another person or a government"--not with reference to any Restatement or common law principles. See 18 U.S.C. 666(d)(1). That is just the interpretation urged by ARC here. Id. It is also an interpretation in keeping with the way courts determine in other contexts whether someone acts as an agent for another--by inquiring into his authorization to do so. For example, the Supreme Court has held that a private party acts as an "agent" of the government in conducting federally mandated drug testing--even though the government certainly does not exercise the sort of "control" over such a person that J&J claims is required to be an agent. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 614 (1989). See also Automation By Design, Inc. v. Raybestos Prods. Co., 463 F.3d 749, 757 (7th Cir. 2006) (looking to Black's Law Dictionary definition of agent as turning on authorization to act in place of another, and finding it satisfied even though the contract defined the parties' relationship as one of independent contractors). And the precise phrase "duly authorized agent" has been defined in just this way as well, without any resort to Restatement of Agency or common law agency principles. See, e.g., FDIC v. Schaffer, 731 F.2d 1134, 1137 & n.5 (4th Cir. 1984) (holding that defendant's mother-in-law was his "duly authorized agent" to accept service of process under state statute; term includes one who acts at the direction of or with the knowledge or acquiescence of another); Kelberine v. Societe Internationale, Etc., 363 F.2d 989, 993 (D.C. Cir. 1966) (an individual with power of attorney for accepting service of process was a "duly authorized agent," even though "his express authority was limited, to be sure"); Kuenstler v. Occidental Life Ins. Co., 292 F. Supp. 532, 534-535 (C.D. Cal. 1968) (insurance company administering Medicare benefits pursuant to contract with government was a "duly authorized agent" of the government while acting in that 13 capacity); In re Sicari, 187 B.R. 861, 871 (Bankr. S.D.N.Y. 1994) (debtor's secretary was his "duly authorized agent" because she acted "with his authorization and at his specific instruction"). J&J's theory that Congress covertly incorporated complex Restatement and common law agency principles into the criminal prohibition in 706 runs afoul not only of all these cases, but also of the "basic principle" of constitutional law that "a criminal statute must give fair warning of the conduct that it makes a crime." Rogers v. Tennessee, 532 U.S. 451, 457 (2001). Violations of criminal law cannot turn on post-hoc judicial examinations of whether a relationship did or did not qualify as a general agency relationship under Restatement and common law agency principles. When a criminal prohibition leaves those of ordinary intelligence unable to know what is permitted and what is prohibited and conform their conduct accordingly, it violates the Due Process Clause. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972); Connally v. General Constr. Co., 269 U.S. 385, 391-392 (1926). "[C]ourts should avoid construing legislation in a manner that would raise grave constitutional questions when an equally plausible explanation exists that does not raise those issues." Enron Power Mktg., Inc. v. Luzenac Am., Inc., 2006 WL 2548453, at *12 (S.D.N.Y. Aug. 31, 2006); accord Jones v. United States, 526 U.S. 227, 239 (1999). That cannon applies with force here. One further problem with J&J's argument stems from its reliance on the Restatement (Third) of Agency. The Restatement (Third) of Agency issued in 2006, exactly 96 years after Congress first adopted the phrase "duly authorized agent" in ARC's 1910 Charter. In 1910, there was no Restatement of Agency. None. The Restatement (First) of Agency would not come out for another 23 years. As a result, even if there were any legal basis for importing extrinsic sources into a federal criminal statute, no Restatement of Agency existed for importation into 14 this one. And even if one accepted J&J's fanciful theory that Congress meant to import the Restatement at recodification in 1948, it was the Restatement (First) of Agency that was then in effect. That Restatement carefully laid out the difference between general agents--who are essentially agents for all purposes--and special agents--who are essentially agents for a specific, limited purpose (like using the Emblem). See Restatement (First) of Agency 3 (1933). Even if agency law were imported into 706, it would be fully satisfied here, for this notion of limited agency is well recognized in cases old and new, including those from Virginia, the state law J&J relies on here. See, e.g., Butler v. Maples, 76 U.S. 766, 774 (1869) ("The distinction between the two kinds of agencies is that the one is created by power given to do acts of a class, and the other by power given to do individual acts only."). See also EEOC v. Watergate at Landmark Condominium, 24 F.3d 635, 639 (4th Cir. 1994) (holding that the evidence clearly established that two individuals who were "[n]ot, to be sure, general agents," were nevertheless "certainly agents for the limited purpose of assisting the Watergate legal entity, a condominium association, make decisions concerning its recreational program"); Flintridge Station Assocs. v. Am. Fletcher Mortgage Co., 761 F.2d 434, 439 (7th Cir. 1985) (defining a special agent as " `one who is authorized to do one or more specific acts, in pursuance of particular instructions or within restrictions necessarily implied from the acts to be done' ") (quotation omitted); P. T. Perusahaan Pelayaran Samudera Trikora Lloyd v. Salzachtal, 373 F. Supp. 267, 277 (E.D.N.Y. 1974) (finding relationship between two parties was special agency, citing Restatement (Second) of Agency); accord Shanklin v. Allis-Chalmers Mfg. Co., 254 F. Supp. 223, 226 (S.D. W. Va. 1966), aff'd, 383 F.2d 819 (4th Cir. 1967). Thus, even under J&J's theory that Restatement and common law agency principles define the scope of 706's criminal prohibition, those principles would be fully satisfied here because ARC's manufacturing 15 licensees are its agents for purposes of using the Emblem. Whatever epoch's agency law governs, the law has always recognized that agency relationships can be for limited purposes. J&J notes that the Agreements at issue specify the relationship established is not general agency but one of independent contractor. That is quite so. ARC is not directing manufacturing machine operators in their day-to-day activities or mandating delivery routes, any more than it does so with respect to the manufacture of blood bags or lifesaving training materials or equipment or emergency response supplies bearing the Emblem. But ARC designated each firm as its authorized agent for the purpose of placing the Emblem on approved products. Such limited agency is widely recognized in the case law, even when the general relationship is that of independent contractor. In Hartzell Fan, Inc. v. Waco, Inc., 505 S.E.2d 196, 200 (Va. 1998), for example, the parties had an agreement specifying that Metrix was an independent contractor and not the legal representative of Hartzell. The agreement also authorized Metrix to do something specific on behalf of Hartzell--to forward to Hartzell any money it received from Hartzell's customers. As the Court explained, regardless of the use of the term "independent contractor" in the agreement, Metrix was Hartzell's agent for the limited purpose of receiving payments from Hartzell customers and forwarding those payments. Id. Metrix's status as agent necessarily flowed from the authority Metrix was given to accept and forward payments. Id. See also Automation By Design, 463 F.3d at 757 (holding that status as agent turns on authorization to act in place of another, and finding it satisfied even though the contract defined the relationship as one of independent contractors); Shanklin, 254 F. Supp. at 226 (same). So too here. A trademark license agreement by its very nature necessarily authorizes the licensee to use the licensed mark in the specified way. The agreements here plainly state they grant a license--i.e., authority--to use the Red Cross Emblem and the name "American Red 16 Cross" in certain specified ways. See, e.g., ARC-First Aid Only License Agreement at 1 and Sch. A (Ex. 133 to Abram Decl., Nov. 21, 2007). So regardless of the manufacturing firm's status for any other purpose as an independent contractor, it is ARC's agent for the purpose of using the Emblem. 2. J&J also offers a few other 706 arguments, all wrong on their face. It claims, for example, that 706 criminalizes ARC's use of its own Emblem because (according to J&J) ARC is not authorized to engage in sales of products under its federal charter. But it is authorized to do just that, and has been for a very long time. See supra 5-8. And even assuming its false premise, J&J's argument would go too far. Surely, a Red Cross volunteer using the Emblem would not become a federal criminal if it were later determined that the activity he was engaged in, while authorized, was beyond ARC's charter powers. 3. J&J's next argument is that even if ARC's federal charter permits sales, 706 still makes use of the Emblem a crime because (according to J&J) it incorporates the Regulations of the ICRC. J&J Mem. 28. This is so wrong it is hard to know where to begin. First, of course, 706 makes no reference to the ICRC pronouncements on which J&J has seized. Second, they came out many decades after 706 was codified and many, many decades after the prohibition first appeared in ARC's 1910 Charter. Third, incorporating ICRC regulations or guidelines into a criminal statute would run afoul of the due process vagueness principles mentioned above. Just as the Third Circuit declined to import agency law into a criminal statute because "[t]o do so might result in the improper importation of extraneous language into the statutory text," United States v. Vitillo, 490 F.3d at 323, so importing various and subsequent pronouncements of the ICRC would render the federal criminal law not only indeterminate when enacted but mutable over time at the discretion of the ICRC. And fourth, far from being the arbiter of U.S. criminal 17 law, the ICRC does not even have authority within the context of the Red Cross Movement to bind National Societies like ARC. As we show below, the ICRC is essentially a sister society, one with whom ARC works closely and whose pronouncements ARC works to abide by within the context of the Red Cross Movement. But that is all beyond the legitimate scope of this litigation, because J&J has no right to enforce ICRC pronouncements, either by importing them into the federal criminal law or otherwise. See infra 27-31. 4. J&J also claims that 706 is somehow violated by ARC and its marketing partners because when people purchase a product bearing the Red Cross Emblem, ARC has no control over their use of the product. J&J Mem. 29. This verges on ridiculous for two reasons. First, control is not the key, authorization is. The Emblem is used every day in critical ways by persons beyond the direct control of ARC. ARC volunteers fan out into disaster areas every day, proudly wearing the Emblem; neither ARC nor its thousands of volunteers are criminals because no ARC employee is directing their every move. ARC hands out blankets and water bottles and myriad other Red Cross items to disaster victims; ARC does not control what they do with them, but that does not make it a crime to give them away. ARC blood bags sit on the shelves of hospitals all over the country; selling them with a Red Cross Emblem is not criminal just because ARC does not tell the nurses and surgeons who use them how to do their jobs. Boxes of ARC materiel might be pre-positioned in a church in advance of a hurricane; that is not a crime and the pastor is not indictable for handing them out, even if ARC officials do not tell him how or to whom. And just so with first aid kits: Neither a disaster victim in a shelter nor a parent at a 18 soccer game is a criminal when he uses an ARC (or J&J)6 first aid kit, even though ARC does not control his every move. And second, even if control were dispositive, it exists here. The uses of the Emblem that J&J attacks in this case are closely controlled by ARC, as the License Agreements themselves make clear. Certainly compared to these myriad other uses by persons beyond the control of anyone, the ARC's manufacturing licensees are authorized to use the Emblem only under close supervision by ARC, which has the right to determine exactly how the Emblem appears and on what products. Requiring ARC control as a condition for another's non-criminal use of the Emblem would be absurd. But if control were required, it exists here. See infra 31-34.7 For all these and no doubt other reasons as well, J&J's view of 706 makes no sense. It has no support in the text of the statute. And it conflicts with a century of practice that has been widely known in Congress, not to mention by DOJ, IRS, J&J, and thousands of Red Cross volunteers, partners, donors, and supporters. 6 J&J claims that its grandfathered rights give it the right "to sell goods in commerce" (J&J Mem. 36). Leaving aside that the 1905 Charter did the same for ARC, the implication of J&J's theory is that no user of J&J products has any right to display the Red Cross symbol. We do not agree. But we point it out because it shows the folly of J&J's position. J&J also makes the related argument that a retailer like Wal-Mart violates 706 every time it "advertise[s], display[s], and sell[s]" a product bearing the Red Cross Emblem, because it is neither a grandfathered user nor an agent of ARC (under the Restatement of Agency definition), so Wal-Mart's sales of products bearing the Red Cross Emblem would violate 706. J&J Mem. 30-31. This argument once again proves too much. If J&J were right, hospitals would violate federal law by displaying blood bags for use in the ER. Cataloguers who carried ARC products throughout the 1900s (or do so today) would violate federal law by displaying the Emblem. Schools who display the Emblem in connection with a life saving course? Criminals. Cause marketing partners, too. The list could go on forever. And in addition, the adage "be careful what you wish for" comes to mind: Wal-Mart sells far more products bearing the Red Cross symbol under J&J's name than it does under ARC's. If it were a violation of federal law for Wal-Mart to display a Red Cross on ARC products because Wal-Mart is neither a grandfathered user nor an agent of ARC, that same principle would make Wal-Mart's display of J&J products bearing a Red Cross symbol illegal too. 19 7 B. Geneva Conventions And The ICRC Regulations 1. The Geneva Conventions All Preserve The Emblem To The National Red Cross Societies, And Bar Its Use By Any Private Entity Without Exception. Before showing the many reasons why J&J's resort to the Geneva Conventions is wrong, we pause on the irony of J&J's argument, for if accepted it would preclude J&J's own use of the Emblem as a grandfathered user. As we will show, the international agreements relied upon by J&J address the rights of the Signatory Nations. But none of the Conventions makes any allowance for--or suggests that a Signatory Nation should permit--any sort of grandfathereduser rights. That puts J&J in the awkward position of advancing a theory that, if adopted, would mean that the United States violates international law by allowing J&J to use the Emblem. One with unclean hands is not entitled to relief in equity. See, e.g., Cohn & Berk v. RothmanGoodman Mgmt. Corp., 125 A.D.2d 435, 436 (N.Y. App. Div. 1986); N.Y. Jur. Equity 113. But J&J need not worry, for its novel view of international law is wrong from the get-go. As we show below, the Geneva Conventions are not self-executing. Their implementation in the United States is by Congress through legislation. Whatever the wisdom of grandfathering uses of the Red Cross, Congress has spoken. And in doing so, Congress clearly authorized the ARC to use the Emblem and authorize others to do so, in furtherance of ARC's mission. 2. The Geneva Conventions Are Not Self-Executing And Are Not Enforceable By J&J. J&J cannot privately enforce the Geneva Conventions directly, nor can it seek to enforce the Geneva Conventions indirectly by requesting that this Court impose liability under the guise of New York state tort and trademark law. Because "the Geneva Conventions are not self-executing treaties," courts have "routinely reject[ed] private claims brought under them." Stutts v. De Dietrich Group, 2006 WL 1867060, 20 at *7 (E.D.N.Y. June 30, 2006); 8 see also Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J. concurring) (finding 1949 Geneva Convention and other international treaties not self-executing because they "expressly call for implementing legislation"; "[a] treaty that provides that party states will take measures through their own laws to enforce its proscriptions evidences its intent not to be self-executing"); Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1025 (W.D. Wash. 2005) ("[T]he Geneva Convention is not `self-executing,' that is, it does not expressly or impliedly create a private claim for relief."), aff'd, 503 F.3d 974 (9th Cir. 2007); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 439 n.16 (D.N.J. 1999) ("Courts have unanimously held that neither the Hague nor Geneva Conventions are self-executing."); United States v. Fort, 921 F. Supp. 523, 526 (N.D. Ill. 1996) ("The courts have consistently held that the Geneva Conventions . . . are not self-executing and, thus, provide no basis for the enforcement of private rights in domestic courts."). See also United States v. Rommy, No. 060520-cr, 2007 WL 3243813, at *18 (2d Cir. Nov. 5, 2007) ("As the Supreme Court has long observed, absent explicit treaty language conferring individual enforcement rights, treaty violations are generally addressed by the signatory sovereigns through diplomatic channels."); Humane Soc'y of the United States v. Glickman, 217 F.3d 882, 887 (D.C. Cir. 2000) ("Treaties are undertakings between nations; the terms of a treaty bind the contracting powers."). None of the National Societies in the Red Cross Movement is bound directly by the Geneva Conventions; "Self-executing" treaties are those that need no implementation by Signatory Nations, those whose mere ratification creates rights and duties for private individuals enforceable by domestic tribunals. See Flores v. Southern Peru Copper Corp., 414 F.3d 233, 257 n.34 (2d Cir. 2003). As shown above, the Geneva Conventions on their face made clear they required national legislation to implement them. There is a strong legal presumption against reading treaties as self-executing, and any treaty that "require[s] implementing action by the political branches of government" as the Geneva Conventions do is considered non-self-executing. Id.; accord United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001); Restatement (Third) of the Foreign Relations Law of the United States 907 cmt. a. (1987). 21 8 instead, each is bound by whatever national legislation its home nation has enacted to implement the Geneva Conventions. Responsive SOF 180. Accord Restatement (Third) of the Foreign Relations Law of the United States 907 (1987) (treaties can only create rights against Nations). Here, the courts have quite rightly held that the Geneva Conventions are not selfexecuting. First, they lack the "explicit treaty language conferring individual enforcement rights" that would be required. United States v. Rommy, 2007 WL 3243813, at *18 (2d Cir. Nov. 5, 2007). And second, they say exactly the opposite, with specific reference to use of the Red Cross and other protected symbols. See, e.g., 1949 Convention, art. 44 (authorizing use of the emblem "in accordance with national legislation"); 1906 Convention, art. 27 (requesting that "signatory powers whose legislation may not now be adequate engage to take or recommend to their legislatures such measures as may be necessary to prevent the use, by private persons or by societies other than those upon which this convention confers the right thereto, of the emblem"). Thus, J&J is limited to advancing only those rights that Congress chose to create when it implemented the Geneva Conventions. Just as Congress may have done in allowing grandfathered uses, "sovereigns may elect to overlook non-compliance with particular treaty requirements in given cases." United States v. Rommy, 2007 WL 3243813, at *18. See Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 873 (D.C. Cir. 2006) (mute swan protected under international conventions to which the United States is a party but excluded from protection in the Migratory Bird Treaty Reform Act, which implements the international conventions). So, J&J has the benefit of Congress's decision to allow its use of the Red Cross Emblem without fear of claim or prosecution, so long as it does so within the narrow confines of the grandfathered rights Congress chose to protect. And in the same way, J&J's enforcement rights are limited to those that Congress chose to create in implementing the Geneva 22 Conventions. Since Congress created no right for grandfathered users to enforce the Geneva Conventions against the National Red Cross Societies, all of J&J's arguments under the Geneva Conventions should be disregarded. Just as J&J is foreclosed by Congress from bringing suit directly under the Geneva Conventions, so too is it foreclosed from using New York state law. That is true even with respect to enforcement of self-executing treaties. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 160 (1999) (where plaintiff had no direct right to recovery under Warsaw Convention, plaintiff could not artfully plead action for damages under New York tort law). It is all the more so here. Over a century ago, the Supreme Court made clear that courts lack power to tell the federal government whether and how to enforce treaties. See Botiller v. Dominguez, 130 U.S. 238, 247 (1889) (a court "has no power to set itself up as the instrumentality for enforcing the provisions of a treaty with a foreign nation which the government of the United States, as a sovereign power, chooses to disregard"); Chinese Exclusion Cases, 130 U.S. 581, 603 (1889) (the validity of legislation implementing treaty obligations of a nation is "not a matter for judicial cognizance" and "[t]he question whether the government is justified in disregarding its engagements with another nation is not one for the determination of the courts"). Courts today rely on that same principle in rejecting claims seeking to adjudicate private party rights under a treaty: "Only parties to a treaty may seek enforcement of the treaty and may do so only through diplomatic means." Consejo de Desarrollo Economico de Mexicali v. United States, 417 F. Supp. 2d 1176, 1184 (D. Nev. 2006) (dismissing claims based on provisions of 1944 MexicanU.S. Water Treaty for failure to state a claim because private party plaintiff lacked standing). Another legal principle also bars J&J from using New York state law to impose liability for international treaty violations: the foreign affairs preemption doctrine. As the Supreme 23 Court has held, the possibility that state law "will produce something more than incidental effect in conflict with express foreign policy of the National Government . . . require[s] preemption of the state law." Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 420 (2003). That makes sense, "given the `concern for uniformity in this country's dealing with foreign nations' that animated the Constitution's allocation of the foreign relations power to the National Government in the first place." Id. at 413 (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 (1964)); see also In re Assicurazioni Generali S.p.a. Holocaust Ins. Litig.,340 F. Supp. 2d 494, 502 (S.D.N.Y. 2004) (dismissing state statutory and common law claims because the Supreme Court has endorsed repeatedly "the notion of executive primacy in the sphere of foreign affairs"). This legal principle is clear: "No state can add to or take from the force and effect of [a] treaty or statute." Hines v. Davidowitz, 312 U.S. 52, 63 (1941). Thus, in Garamendi, the Court held that California's Holocaust Victim Insurance Relief Act--a state statute that required European insurers doing business in California to make certain disclosures about policies in effect during the Holocaust era--was preempted because "restitution for Nazi crimes has in fact been addressed in Executive Branch diplomacy and formalized in treaties and executive agreements." Garamendi, 539 U.S. at 420-421 (emphasis added). The preemption of state law when it comes to issues of foreign affairs exten

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