Background
Novalpina Capital Partners I GP S.A.R.L. was the general partner of a Luxembourg-based investment fund. After the fund’s founders solicited an investment in Oregon, the Oregon Public Employees Retirement Fund committed €200 million and became the fund’s first limited partner. Novalpina GP later sent OPERF 10 drawdown notices seeking more than €100 million, which OPERF paid.
As part of an investigation into possible violations of the Oregon False Claims Act, the Oregon Department of Justice issued Novalpina GP a civil investigative demand seeking documents, interrogatory answers, and deposition testimony. Novalpina GP petitioned to set aside the demand, arguing that Oregon lacked personal jurisdiction, contractual forum-selection and choice-of-law provisions required proceedings in Luxembourg under Luxembourg law, and the DOJ was required to use the Hague Evidence Convention. The circuit court rejected those arguments.
The Court’s Holding
The Oregon Court of Appeals affirmed. It held that Oregon had specific personal jurisdiction because Novalpina GP purposefully availed itself of the Oregon market by soliciting OPERF’s investment and maintaining an ongoing financial relationship through the drawdown notices. The investigation arose from those Oregon contacts, and exercising jurisdiction was reasonable given Oregon’s interest in enforcing its False Claims Act, the availability of remote testimony, and the lack of an effective alternative forum for pretrial discovery.
The court also held that the agreements’ forum-selection provisions did not cover the attorney general’s independent statutory authority to issue and enforce a civil investigative demand. In addition, the controlling side letter provided that issues involving governmental authority and matters otherwise governed by Oregon law would be resolved under Oregon law.
Finally, the trial court did not abuse its discretion by declining to require use of the Hague Evidence Convention. Convention procedures are optional, Novalpina GP identified no Luxembourg law prohibiting disclosure, and Luxembourg’s refusal to execute requests for common-law pretrial discovery made the Convention process likely ineffective. Because the court upheld jurisdiction based on Novalpina GP’s Oregon contacts, it dismissed the DOJ’s conditional cross-appeal concerning consent to jurisdiction as moot.
Key Takeaways
- A foreign investment manager’s in-state solicitation and repeated funding requests can establish purposeful availment for specific personal jurisdiction.
- Broad contractual forum-selection language does not necessarily reach a state attorney general’s independent statutory investigative authority.
- The Hague Evidence Convention supplements domestic discovery procedures and need not be used when comity does not require it and the process is unlikely to produce evidence.
Why It Matters
The decision confirms that foreign entities may be required to respond in Oregon to investigative demands tied to investments they solicited from Oregon public bodies. A complex foreign corporate structure and contractual provisions favoring another country will not necessarily insulate an entity from Oregon jurisdiction or the state’s enforcement laws.
It also gives Oregon courts discretion to use domestic evidence-gathering procedures in cross-border investigations when Convention procedures would be ineffective and no conflicting foreign disclosure law has been shown.