Jerry Choe


This Comment argues that the Seventh Circuit's decision in Fortino undermined the U.S. Supreme Court's holding in Sumitomo Shoji Am., Inc. v. Avigliano. In Sumitomo, the Supreme Court rejected the right to assign defense and unanimously held that U.S. subsidiaries of Japanese companies can not take advantage of the parent's rights conferred by Article VIII(1). Although not explicit in the Court's published opinion, the Supreme Court precluded the subsidiary's use of Article VIII(1) upon virtually identical facts and arguments as those before the Seventh Circuit and, more specifically, upon the subsidiary's contention that the parent dictated its discriminatory conduct. Part I describes the background of the parent-right invocation principle in the context of an Article VIII(1) defense to Title VII claims against Japanese companies. Part I of this Comment sets forth a detailed analysis of the Sumitomo decision. Finally, Part I discusses the cases which bear on the issue of whether a U.S. subsidiary can invoke its parent's Article VIII(1) rights. Part II discusses the background and holding of the Seventh Circuit's decision Fortino. Part III demonstrates that the Seventh Circuit erred in both finding an Article VIII(1) right to assign and in permitting the subsidiary to invoke its parent's rights to defeat the Title VII claim because neither the FCN Treaty nor the Sumitomo decision permits this result. Part III further illustrates that after finding an Article VIII(1) right to assign, the court erroneously assumed that the parent's system of assignment, rather than the subsidiary's independent conduct, caused the Title VII violation. Finally, Part III demonstrates that the principle of parent-right invocation rests upon inapposite theories, violates fundamental principles of U.S. corporate law, and results in illogical consequences. This Comment concludes that courts should not permit Japanese companies to ignore the corporate form of their U.S. subsidiaries by allowing subsidiaries to invoke their parents' FCN Treaty rights in defense of Title VII claims.