Background
Energy Transfer LP and its affiliates, operators of the Dakota Access Pipeline, spent six years litigating claims against Greenpeace International (GPI) and related Greenpeace entities in North Dakota district court. The lawsuit alleged that the defendants orchestrated a coordinated—and at times violent—campaign against Energy Transfer’s lawful pipeline operations, giving rise to claims for conspiracy, defamation, defamation per se, and tortious interference. In February and March 2025, after six years of pretrial litigation, the case went to a three-week jury trial. The jury returned a unanimous verdict for Energy Transfer, awarding more than $130 million in compensatory and exemplary damages against GPI alone and more than $666 million in total against the three Greenpeace defendants combined.
Two weeks before that trial began—on February 11, 2025—GPI filed a lawsuit in the Netherlands invoking the European Union’s 2024 anti-SLAPP directive. The Dutch action alleged that Energy Transfer’s North Dakota lawsuit was a Strategic Lawsuit Against Public Participation (SLAPP), sought a declaration that the North Dakota case was “manifestly unfounded and abusive,” and demanded damages calibrated to offset any North Dakota verdict. Energy Transfer moved for an antisuit injunction ordering GPI to halt the Dutch proceedings. The district court denied the motion, reasoning that the issues in the two cases were not the same because the Netherlands recognizes anti-SLAPP claims that North Dakota does not, and that the Dutch action would not necessarily contradict North Dakota policy unless it reached a final conclusion before post-trial motions were resolved.
Energy Transfer petitioned the North Dakota Supreme Court for a supervisory writ. The question of whether a North Dakota court may issue a foreign antisuit injunction was one of first impression for the court. The State of North Dakota appeared as amicus curiae urging the court to adopt a clear framework for protecting North Dakota proceedings from improper foreign collateral attacks.
The Court’s Holding
The Supreme Court granted the supervisory writ and remanded with directions to enter a narrowly tailored antisuit injunction. Writing for a four-justice majority, Justice Tufte held that North Dakota district courts possess inherent authority—rooted in the common law, preserved by the 1889 and current Constitutions, and confirmed by statute—to enjoin a person subject to their personal jurisdiction from prosecuting a duplicative or collateral proceeding in a foreign forum. The court adopted the three-step BAE Systems analytical framework (substantial similarity of parties and issues, equitable considerations, and comity), paired with the “conservative” approach to international comity followed by the Eighth Circuit and a majority of federal circuits, treating comity as a substantial but not categorical bar to injunctive relief.
Applying that framework, the court found the district court abused its discretion at every step. On the threshold inquiry, the district court erred by focusing on the label “anti-SLAPP” rather than examining the operative elements of the Dutch claim. Because GPI’s Dutch summons required a Dutch court to find that the North Dakota lawsuit was “manifestly unfounded”—meaning GPI did not engage in unlawful conduct, did not cause Energy Transfer’s losses, and did not act with malice—it asked a foreign tribunal to re-decide the precise factual and legal questions the North Dakota jury had already resolved against GPI. That makes the issues substantially similar regardless of how Dutch law labels the cause of action. On the equitable factors, the court found GPI’s filing of the Dutch action two weeks before trial, after six years of North Dakota litigation, “smacks of cynicism, harassment, and delay,” and that a foreign declaration of “manifestly unfounded” would directly contradict and functionally nullify the jury’s verdict, frustrating a fundamental state interest in the finality and integrity of its judicial proceedings.
The court further rejected the district court’s comity analysis, which had read the Eighth Circuit’s “conservative” approach as a near-categorical presumption against injunctions. Under the correct standard, comity weighs heavily but yields when domestic interests—here, protecting a six-year jury verdict from collateral eradication by a foreign court—outweigh it. The court remanded with instructions to enter an injunction narrowly tailored consistent with the opinion. Chief Justice Fair McEvers dissented.
Key Takeaways
- North Dakota district courts have inherent authority to issue foreign antisuit injunctions against parties subject to their personal jurisdiction—the first time the state Supreme Court has so held.
- The substantial-similarity threshold for antisuit injunctions turns on whether resolution of the foreign claim requires adjudicating the same underlying factual and legal questions, not on whether the two jurisdictions attach the same legal label to the cause of action.
- Filing a foreign lawsuit on the eve of trial, after years of domestic litigation, seeking to have the domestic proceeding declared “manifestly unfounded,” satisfies both the vexatiousness factor and the frustration-of-forum-policy factor for equitable relief.
- North Dakota adopts the “conservative” (Eighth Circuit) approach to international comity in the antisuit-injunction context: comity is a substantial factor weighing against an injunction, but not an absolute bar when domestic interests outweigh it.
- The EU’s 2024 anti-SLAPP directive creates a damages mechanism materially different from American anti-SLAPP statutes, which operate only as pre-trial dismissal tools; courts must analyze the directive’s actual elements rather than analogizing from domestic anti-SLAPP law.
Why It Matters
This decision is the first authoritative ruling on foreign antisuit injunctions in North Dakota and supplies a framework that state courts nationwide—many of which face the same gap in authority—may look to as the EU’s 2024 anti-SLAPP directive generates more cross-border retaliation litigation. By holding that the “manifestly unfounded” prong of the EU directive creates issues substantially similar to the underlying domestic claims, the court closes a potential loophole: defendants who lose at trial cannot insulate themselves from judgment by racing to a European forum to have the domestic case declared a SLAPP, so long as the domestic court retains personal jurisdiction over them.
The decision also carries broader implications for the intersection of First Amendment-adjacent public-interest litigation and international procedure. The EU directive was designed to protect activists and journalists from litigation abuse; this ruling signals that U.S. courts will scrutinize whether invoking that directive amounts to a collateral attack on a domestic verdict rather than a legitimate exercise of European legal rights. Future litigants—and the foreign defendants and advocacy organizations that increasingly operate across borders—will need to carefully time and structure any parallel foreign proceedings to avoid triggering a domestic antisuit injunction.