IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NIKE, INC., an Oregon

corporation,

Plaintiff,

v.

DAVIDE CARDARELLI, an

individual,

Defendant.

3:14-CV-01690-BR

 

OPINION AND ORDER 

PER A. RAMFJORD

AMY JOSEPH PEDERSEN

LAURA E. ROSENBAUM 

Stoel Rives LLP

900 S.W. Fifth Avenue

Suite 2600

Portland, OR 97204

(503) 294-9257 

Attorneys for Plaintiff

ANNE DEVLAN FOSTER

ALLYSON S. KRUEGER 

Dunn Carney Allen Higgins & Tongue, LLP

851 S.W. Sixth Avenue

Suite 1500

Portland, OR 97204-1357

(503) 306-5331

Attorneys for Defendant

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 1 of 19
BROWN, Judge.

This matter comes before the Court on Plaintiff's Renewed

Motion (#29) for Preliminary Injunctive Relief. For the reasons

that follow, the Court DENIES Plaintiff’s Motion.

BACKGROUND

On February 17, 2003, Defendant Davide Cardarelli1 was hired

by Plaintiff Nike Incorporated’s subsidiary, Nike Italy S.r.l.

(Nike Italy). Defendant’s employment with Nike Italy was

governed by an employment agreement that provided Defendant with

eligibility to receive stock options granted by Plaintiff through

the Nike 1990 Stock Incentive Plan (the Plan). Plaintiff

operates and maintains the Plan under which it may grant stock

options to directors, officers, employees, consultants, advisors,

and independent contractors. 

In 2006 Nike Italy's Human Resources Department offered to

“second” Defendant to Nike South Africa to serve as the General

Manager. Defendant accepted the offer, and, in accordance with

Plaintiff’s Global Transfer Policy, Nike Italy remained

Defendant’s "home location" while Nike South Africa became

Defendant’s "host location." Defendant’s "secondment" became

effective in January 2007.

Between July 2004 and July 2013 Plaintiff granted Defendant

1

 Plaintiff was a citizen of Italy at all relevant times.

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 2 of 19
ten awards of stock options under the Plan. Every stock-option

grant under the Plan is subject to the terms of the Plan as well

as to the terms and conditions of Stock Option Agreements that

were distributed to Defendant at the time of each grant date. 

Before 2008 all of the Stock Option Agreements that were

distributed to and accepted by Defendant contained the following

provision setting out the law governing the Stock Option

Agreements: “This Agreement shall be governed by the laws of the

state of Oregon.” Decl. of Lori Giardina (#30), Exs. 1-4, ¶ 12. 

Beginning in 2008 the Stock Option Agreements distributed to

and accepted by Defendant contained the following provision

setting out the law governing the Stock Option Agreements:

The Option grant and the provisions of this

Agreement are governed by, and subject to, the

laws of the State of Oregon. For purposes of

litigating any dispute that arises under this

grant or the Agreement, the parties hereby submit

to and consent to the jurisdiction of the State of

Oregon, and agree that such litigation shall be

conducted in the courts of Washington County,

Oregon or the federal courts for the United States

for the District of Oregon, where this grant is

made and/or to be performed.

Giardina Decl., Ex. 5 at ¶ 13, Exs. 6-10.

On September 16, 2013, Nike Italy delivered a letter to

Defendant advising him that he was being terminated with two

months notice. At the time of his termination from Nike Italy,

Defendant had a total of 37,060 outstanding Nike stock options

from grants made to him between July 2006 and July 2013, 7,500 of

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 3 of 19
which were issued under 2006 and 2007 Stock Option Agreements. 

Defendant’s remaining vested stock options were issued under

Stock Option Agreements dated 2008 or later.

On January 10, 2014, Defendant filed a complaint in Bologna,

Italy, against Nike Italy. On February 24, 2014, Defendant filed

a second complaint in Italy against Nike Italy. Ultimately, the

Italian court consolidated Defendant’s separately filed

complaints (the Italian Action) and set the matter before one

judge. 

In the Italian Action Defendant (as the plaintiff in that

action) seeks various damages flowing from his allegedly wrongful

termination by Nike Italy. Specifically, in the Italian Action

Defendant seeks (1) “severance indemnity,” (2) an annual bonus, 

(3) equitable compensation for breach of contract, (4) equitable

compensation for additional assignments, (5) settlement of

accounts with Social Security and Welfare, (6) lost future

remuneration, and (7) “the value of the stock options which are

part of the determination of the indemnities that are granted as

damage for an Italian employee that has been unfairly dismissed.” 

Decl. of Davide Cardarelli (#23) at ¶ 6. Defendant’s claims in

the Italian Action are solely against Nike Italy. Defendant does

not bring any claims in the Italian Action against Plaintiff. 

On October 23, 2014, Plaintiff filed in this Court a

Complaint against Defendant for Declaratory Judgment in which

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Plaintiff seeks a judicial declaration “to clarify the meaning of

the Stock Option Plan and the Stock Option Agreements so that the

parties may know and exercise their rights and obligations and to

prevent inconsistent rulings in varying jurisdictions regarding

the terms of the plan.”

On October 31, 2014, Plaintiff filed in this Court a Motion

for Injunctive Relief in which Plaintiff “request[ed] that the

Court issue an anti-suit or preliminary injunction to prevent

[Defendant] from proceeding with the Italian litigation to the

extent it involves or addresses claims that arise under or are

related to the Stock Option Plan.”

On November 25, 2014, this Court heard expedited oral

argument on Plaintiff’s Motion for Injunctive Relief because

Plaintiff asserted exigencies warranted quick consideration of

Plaintiff’s Motion, concluded Plaintiff had not established at

that time that it was entitled to an anti-suit injunction, and

denied Plaintiff's Motion with leave to renew. 

On December 23, 2014, Plaintiff filed a Renewed Motion for

Preliminary Injunctive Relief. The Court heard oral argument on

Plaintiff’s Renewed Motion on January 16, 2015, and took the

matter under advisement.

STANDARDS

“‘A federal district court with jurisdiction over the

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 5 of 19
parties has the power to enjoin them from proceeding with an

action in the courts of a foreign country, although the power

should be used sparingly. The issue is not one of jurisdiction,

but one of comity.’” E. & J. Gallo Winery v. Andina Licores

S.A., 446 F.3d 984, 989 (9th Cir. 2006)(quoting Seattle Totems

Hockey Club, Inc. v. Nat'l Hockey League, 652 F.2d 852, 855 (9th

Cir. 1981)). 

Courts derive the ability to enter an anti-suit

injunction from their equitable powers. Such

injunctions allow the court to restrain a party

subject to its jurisdiction from proceeding in a

foreign court in circumstances that are unjust

. . . . The injunction operates in personam: the

American court enjoins the claimant, not the

foreign court.

Id.

[A] district court, in evaluating a request for an

anti-suit injunction, must determine (1) whether

or not the parties and the issues are the same,

and whether or not the first action is dispositive

of the action to be enjoined; (2) whether the

foreign litigation would frustrate a policy of the

forum issuing the injunction; and (3) whether the

impact on comity would be tolerable.

Applied Med. Distrib. Corp. v. Surgical Co. BV, 587 F.3d 909, 913

(9th Cir. 2009)(quotations omitted; emphasis added). If a party

fails to satisfy any one of these standards, the Court should

deny an anti-suit injunction request. Id. The Ninth Circuit has

made clear in the context of an anti-suit injunction that these

standards replace the usual preliminary-injunction standards. 

See, e.g., Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 883-

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 6 of 19
84 (9th Cir. 2012)(“[W]hen a preliminary injunction is also a

foreign anti-suit injunction, the likelihood-of-success aspect of

the traditional preliminary injunction test is replaced by the

Gallo test.”). Accordingly, although Plaintiff argues in the

alternative for a preliminary injunction under the usual

standards, an anti-suit injunction matter such as this one must

satisfy the standards set out in Gallo and Applied Medical.

DISCUSSION

As noted, Plaintiff seeks an anti-suit injunction “to

prevent [Defendant] from proceeding with the Italian litigation

to the extent it involves or addresses claims that arise under or

are related to the Stock Option Plan.”

Defendant contends Plaintiff should not be granted an antisuit injunction because (1) this action is not dispositive of the

entire Italian Action; (2) litigation concerning the Stock Option

Agreements in Italy will not frustrate an Oregon policy because

not all of the stock options were issued pursuant to Stock Option

Agreements that contained forum-selection clauses; and 

(3) granting an anti-suit injunction would intolerably impact

comity because litigation of Defendant’s employment-termination

claims has been proceeding for nearly eleven months in the

Italian court.

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 7 of 19
I. First Prong of the Analysis

Under Gallo and Applied Medical Plaintiff must first

establish the “parties and the issues are the same, and 

. . . [this action] is dispositive of the [Italian Action].” See

Applied Med., 587 F.3d at 913. The issues identified in prong

one are threshold issues that must be satisfied before a court

may move on to prongs two and three. Lindows.com, 319 F. Supp.

2d at 1222.

Defendant asserts Plaintiff cannot satisfy this prong of the

analysis because this action is not and cannot be dispositive of

the Italian Action, and Defendant notes the Italian Action

involves the legality of Defendant’s termination by Nike Italy

pursuant to Italian law. Plaintiff concedes the legality of

Defendant’s termination under Italian law is not at issue in the

action before this Court. 

The Ninth Circuit addressed the first prong of the anti-suit

injunction analysis in the context of a forum-selection clause in

Applied Medical:

[W]hether the issues are the same and the first

action [is] dispositive of the action to be

enjoined are interrelated requirements; that is,

to the extent the domestic action is capable of

disposing of all the issues in the foreign action

and all the issues in the foreign action fall

under the forum selection clause, the issues are

meaningfully “the same.” These interrelated

requirements are sensible because the fundamental

question the Gallo test is designed to address is

whether a requested anti-suit injunction should 

8 - OPINION AND ORDER

Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 8 of 19
issue under a contractual forum selection

agreement. 

* * *

Therefore, the crux of the functional inquiry in

the first step of the analysis is to determine

whether the issues are the same in the sense that

all the issues in the foreign action fall under

the forum selection clause and can be resolved in

the local action.

587 F.3d at 915-16 (emphasis added). Although the court in

Applied Medical noted the claims at issue in the foreign and

local proceedings do not have to be “precisely and verbally

identical,” id. at 915, this Court notes the claims at issue in

the Italian Action are much broader than the claims asserted by

Plaintiff in this action. Thus, resolution of the claims in this

matter will not resolve “all of the issues” in the Italian Action

as required by Gallo and Applied Medical. See, e.g., Teller v.

Dogge, 2012 WL 4792912, at *10 (D. Nev. 2012)(“This case is not

dispositive of the action in Belgium. Plaintiff’s success or

failure in the instant case will not automatically trigger or

guarantee a certain outcome in the Belgian court under Belgian

defamation law.”).

Although Plaintiff concedes the stock-option issue would not

resolve Defendant’s wrongful-termination claim or all of

Defendant’s damages claims brought in the Italian Action,

Plaintiff asserts, notwithstanding Gallo and Applied Medical,

that the fact that this action would resolve one of the legal

9 - OPINION AND ORDER

Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 9 of 19
issues in the Italian Action (the stock-option issue) is

sufficient to satisfy the first prong of the analysis. Plaintiff

cites a number of cases to support its assertion that “multiple

courts have held [] a domestic proceeding does not need to

dispose of all of the claims in a foreign action to justify

issuance of an anti-suit injunction.” The cases cited by

Plaintiff, however, are either distinguishable or rely on

authority that differs from that in the Ninth Circuit. 

For example, in Microsoft Corp. v. Motorola, Inc., beginning

in November 2010 Microsoft and Motorola engaged in breach-ofcontract litigation in the United States District Court for the

Western District of Washington related to licensing by Motorola

of certain patented technology to Microsoft, among others. 696

F.3d at 875-77. In July 2011 while the breach-of-contract action

was ongoing, Motorola filed a patent-infringement action against

Microsoft in Germany in which Motorola sought an injunction

prohibiting Microsoft from selling products in Germany that

allegedly infringed the same patented technology at issue in the

United States action. 696 F.3d at 878-79. In May 2012 the

German court ruled, among other things, that Microsoft did not

have a license to use Motorola’s patented technology and issued

an injunction prohibiting Microsoft from using Motorola’s

patented technology. The injunction issued by the German court

was not “self enforcing,” and Microsoft asked Motorola to agree

10 - OPINION AND ORDER

Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 10 of 19
not to seek enforcement until the Western District of Washington

court could rule on the underlying breach-of-contract issues. 

Id. at 880. Motorola refused, and Microsoft sought a temporary

anti-suit injunction in the United States District Court to

prevent Motorola from seeking enforcement of the German

injunction. The district court found, among other things, that

the United States “contract action . . . would be dispositive of

the German patent action,” and the court entered a preliminary

injunction barring Motorola from “enforcing any injunctive relief

it may receive in the German Action with respect to the European

Patents therein.” Id. at 880. The Ninth Circuit affirmed the

entry of the preliminary injunction and, relying on the analysis

of the first prong of the anti-suit injunction requirements,

concluded “the district court did not abuse its discretion in

determining that Microsoft's contract-based claims . . . would,

if decided in favor of Microsoft, determine the propriety of the

enforcement by Motorola of the injunctive relief obtained in

Germany.” The Ninth Circuit noted:

As to whether the issues are the same in the sense

that all the issues in the German patent action

can be resolved in the U.S. contract action,

Motorola argues that the U.S. action cannot

resolve the German action, because patent law is

uniquely territorial and patents have no

extraterritorial effect.

To be sure, if the district court had based its

injunction in an expectation that U.S. patent

claims could dispose of German patent claims, then

it would have erred.

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 11 of 19
But the district court did not base its injunction

on the pendency of parallel patent proceedings. 

Rather, it is Microsoft's Washington state

contract claims that the district court determined

could resolve the German patent claims.

Id. at 883 (citations omitted). Thus, the Ninth Circuit affirmed

the district court’s entry of a preliminary anti-suit injunction

because, unlike here, Microsoft’s United States breach-ofcontract action was dispositive of all of Motorola’s claims in

the German action. 

Plaintiff also relies on Medtronic, Inc. v. Catalyst

Research Corp. 518 F. Supp. 946 (D. Minn. 1981), to support its

position that Plaintiff satisfies the first prong of the antisuit injunction analysis because this action can resolve a

portion of Defendant’s damages claims before the Italian court. 

Medtronic, however, was decided by a district court outside of

the Ninth Circuit more than 30 years before the Ninth Circuit’s

decision in Gallo. Medtronic, therefore, does not shed any light

on how the Ninth Circuit would resolve the issue here.

Finally Plaintiff relies on Bailey Shipping, Ltd. v. Am.

Bureau of Shipping, No. 12 Civ. 5959, 2013 WL 5312540 (S.D.N.Y.

2013), which is also a case from a district court outside of the

Ninth Circuit where the court applied the law of the Second

Circuit and concluded the plaintiff satisfied the first prong of

the anti-suit injunction analysis even though only some claims in

the foreign action would be enjoined. The Ninth Circuit,

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 12 of 19
however, does not apply the same standard as the Second Circuit

to the issuance of anti-suit injunctions, and, therefore, Bailey

is unhelpful. 

As noted, in Gallo, Applied Medical, and Motorola, the Ninth

Circuit held in order to satisfy the first prong of the anti-suit

injunction analysis, a plaintiff must establish “the first action

is dispositive of the action to be enjoined.” A close reading of

those cases indicates to this Court that in order to satisfy the

first prong of the anti-suit injunction analysis in this Circuit,

Plaintiff must show this action is capable of resolving the

entire Italian Action. As noted, Plaintiff concedes, and the

record reflects, this matter is not dispositive of the entire

Italian Action. 

Accordingly, the Court concludes on this record that

Plaintiff has not satisfied the first prong of the anti-suit

injunction analysis. 

II. Second Prong of the Analysis

If a party fails to satisfy any one of the prongs of the

anti-suit injunction analysis, this Court should deny an antiinjunction request. See Applied Med., 587 F.3d at 913. 

Nevertheless, the Court concludes even if Plaintiff satisfied the

first prong of the analysis, Plaintiff also fails to satisfy the

second prong: that the foreign litigation would frustrate a

policy of the forum issuing the injunction. 

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 13 of 19
 Plaintiff asserts the Italian Action frustrates the Ninth

Circuit’s policy supporting enforcement of forum-selection

clauses. For example, in Applied Medical the Ninth Circuit

stated: 

[T]here is a strong policy favoring robust forum

selection clauses [in the United States]. But

without the availability of anti-suit injunctions,

the vitality of forum selection clauses would be

impermissibly and improvidently jeopardized. 

Although a foreign court might eventually agree

that a forum selection clause controls, there is

no guarantee that such a resolution would be

reached in a timely fashion or at all, and this

uncertainty would impair the parties' ability to

enforce a forum selection clause. Anti-suit

injunctions may be the only viable way to

effectuate valid forum selection clauses.

587 F.3d at 918-19 (quotations omitted). Plaintiff notes courts

that have confronted situations in which there is a forumselection clause that would be frustrated absent issuance of an

anti-suit injunction have concluded the second anti-suit

injunction prong has been met. In the cases cited by Plaintiff,

however, there is not any indication that the forum-selection

clauses did not govern all of the claims in the domestic actions. 

Here, in contrast, 7,500 of the vested stock options were issued

under the 2006 and 2007 Stock Option Agreements, which did not

contain any forum-selection clause. Thus, there is not any

frustration of the policy in favor of enforcing forum-selection

clauses as to the 2006 and 2007 stock options. See, e.g.,

Sanodi-Aventis Deutschland GMBH v. Genentech, Inc., 716 F.3d 586,

14 - OPINION AND ORDER

Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 14 of 19
594 (Fed. Cir. 2013)(The court applied Ninth Circuit law and

concluded “to the extent that the parties sought relief for the

period after the license [containing the forum-selection clause]

was terminated, there was no frustration of the policy in favor

of enforcing forum selection clauses.”).

Plaintiff, nevertheless, asserts the Court should consider

the forum-selection clause from the 2008-2013 Stock Option

Agreements when addressing the 2006 and 2007 options. Plaintiff

relies on a number of cases in which courts have held forumselection clauses require litigation of “related” non-contract

claims in the same forum. None of the cases that Plaintiff

relies on, however, involve litigation of issues related to

contracts that did not contain any forum-selection clauses. 

On this record the Court concludes Plaintiff also has failed

to satisfy the second prong of the anti-suit injunction analysis.

III. Third Prong of the Analysis

“The third step in deciding if an anti-suit injunction is

appropriate is determining ‘whether the impact on comity would be

tolerable.’” Applied Med., 587 F.3d at 919 (quoting Gallo, 446

F.3d at 994). 

“[T]he extent to which the United States, or any

state, honors the judicial decrees of foreign

nations is a matter of choice, governed by the

comity of nations” and the “[e]xtension of comity

to a foreign judgment is neither a matter of

absolute obligation, on the one hand, nor of mere

courtesy and good will, upon the other.” 

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 15 of 19
Id. at 920 (quoting Asvesta v. Petroutsas, 580 F.3d 1000, 1010–11

(9th Cir. 2009)). 

Gallo requires not that [the court] calculate the

precise quantum of the injunction's interference

with comity, but only that [the court] estimate

whether any such interference is so great as to be

intolerable. Such a flexible, fact- and

context-specific inquiry accords both with the

posture of deference to the district court that

abuse-of-discretion review requires generally, and

with the resistance of comity in particular to

precise measurement. 

Motorola, 696 F.3d at 886.

In Gallo and Applied Medical the Ninth Circuit held

enjoining a “foreign suit that contravened a forum selection

clause ‘did not implicate comity at all.’” Applied Med., 587

F.3d at 920 (quoting Gallo, 446 F.3d at 994). In fact, the Ninth

Circuit concluded in those cases that allowing a foreign action

to proceed when there is a forum-selection clause that requires

litigation of the issue in a different forum “would seriously

harm international comity.” Applied Med., 587 F.3d at 921

(citing Gallo, 446 F.3d at 994). 

As noted, however, 7,500 of the stock options at issue in

the Italian case and this matter do not contain any forumselection clause. As a result, comity is implicated, and the

Court, therefore, considers whether the interference is

“intolerable.”

As the Ninth Circuit noted in Motorola, the effect on comity

is not something that is specifically calculable:

16 - OPINION AND ORDER

Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 16 of 19
At one pole, where two parties have made a prior

contractual commitment to litigate disputes in a

particular forum, upholding that commitment by

enjoining litigation in some other forum is

unlikely to implicate comity concerns at all. See 

Applied Med., 587 F.3d at 921. At the other pole,

if (hypothetically speaking) the State Department

represented to the court that “the issuance of an

injunction really would throw a monkey wrench,

however small, into the foreign relations of the

United States,” Allendale Mut. Ins. Co. v. Bull

Data Sys., Inc., 10 F.3d 425, 431 (7th Cir. 1993)

(Posner, J.), then comity would presumably weigh

quite heavily against an anti-suit injunction. 

Between these two poles, courts must in their

discretion evaluate whether and to what extent

international comity would be impinged upon by an

anti-suit injunction under the particular

circumstances.

696 F.3d at 887. 

Defendant asserts the Court need not reach the final step in

the anti-suit injunction analysis because Plaintiff’s Motion

fails at prongs one and two. If, however, this Court considers

the third prong, Defendant contends the Court must conclude that

issuing an anti-suit injunction in this case would have an

intolerable impact on comity. As Defendant notes, this case,

like Gallo and Applied Medical, does not involve parties who

agreed to litigate all elements of their dispute in this forum. 

To the contrary, Plaintiff admits Defendant’s employmenttermination claims are properly litigated in Italy. 

Defendant also points out that Nike Italy has defended

against Defendant’s claims in the Italian Action by engaging

Italian counsel, filing pleadings, presenting testimony and

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Case 3:14-cv-01690-BR Document 38 Filed 02/26/15 Page 17 of 19
evidence, engaging experts, and participating in numerous

hearings. Plaintiff also has participated in a limited capacity

in the Italian Action and waited for several months before

pursuing an anti-suit injunction in this Court. 

On this record the Court concludes comity would be impacted

by entry of an anti-suit injunction. There is not any basis for

the Court to lack confidence in the Italian court’s ability to

apply the correct law to the dispute between Defendant and Nike

Italy and to consider Plaintiff’s concerns regarding enforcement

of the forum-selection clause if an award of damages involving

Defendant’s stock options becomes an actuality in the Italian

Action. The Court, therefore, concludes Plaintiff has not

satisfied the third prong of the anti-suit injunction analysis.

Accordingly, the Court denies Plaintiff’s Renewed Motion

(#29) for Preliminary Injunctive Relief.

CONCLUSION

For these reasons, the Court DENIES Plaintiff’s Renewed

Motion (#29) for Preliminary Injunctive Relief.

The Court DIRECTS the parties to confer and to submit no

later than March 13, 2015, a Joint Status Report reflecting a

proposed schedule to resolve the remaining issues in this matter. 

The Court will schedule a Rule 16 conference with counsel after 

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receiving their Report.

IT IS SO ORDERED.

DATED this 26th day of February, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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