Adequacy of Foreign Forums After OSR v. REE: Uncertainty Over Extraterritorial Injunctions and Witness Self‑Incrimination Does Not Defeat Forum Non Conveniens

Introduction

This commentary analyzes the Fifth Circuit’s unpublished per curiam decision in OSR Enterprises AG v. Ree Automotive, No. 24‑50779 (5th Cir. Oct. 10, 2025), affirming the Western District of Texas’s dismissal of a U.S. trade secret suit on forum non conveniens (FNC) grounds in favor of litigation in Israel. The plaintiffs, OSR Enterprises AG (Switzerland) and OSR R&D Israel Ltd. (Israel), alleged that REE Automotive (an Israeli company and its U.S. affiliates) misappropriated OSR’s trade secrets concerning “EVOLVER,” an AI-driven central computer for autonomous and smart vehicles. OSR asserted claims under the Defend Trade Secrets Act (DTSA) and Texas Uniform Trade Secrets Act (TUTSA), along with unfair competition and injunctive relief.

At the heart of the appeal were two issues: (1) whether Israel is an adequate alternative forum, given alleged limitations on Israeli courts’ power to issue extraterritorial injunctions and potential witness self-incrimination privileges; and (2) whether the private and public interest factors support dismissal. The Fifth Circuit affirmed, providing clarifications germane to transnational intellectual property disputes, especially those involving electronic evidence and foreign corporate actors.

Summary of the Opinion

The Fifth Circuit affirmed the district court’s dismissal for forum non conveniens, holding that:

Israel is an adequate and available alternative forum. The plaintiffs did not overcome the presumption of adequacy, despite competing expert declarations on Israeli law. Adequacy does not require identical remedies to U.S. law, and uncertainty regarding the availability of extraterritorial injunctions or the existence of certain tort claims does not amount to “no remedy at all.”
Private interest factors favored dismissal. Critical evidence and willing/unwilling witnesses are concentrated in Israel; U.S. subpoena power would not reach many key Israeli third parties; travel and attendance costs would be high if trial proceeded in Texas. The court reiterated that, despite electronic discovery, the location of sources of proof remains relevant.
Public interest factors favored dismissal. The Western District of Texas had minimal local interest given that the alleged misappropriation, actors, and development occurred in Israel; burdening a Texas jury would be unfair. Several of OSR’s public-interest arguments were forfeited by not being preserved in objections or on appeal.

Applying deferential review (abuse of discretion), the court concluded that the district court appropriately weighed the FNC factors in favor of Israel.

Analysis

Precedents Cited and Their Influence

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981): The cornerstone of modern FNC doctrine. The Fifth Circuit relied on Piper’s teachings that:
- Dismissal is proper if there is an adequate and available alternative forum and the private/public interest factors favor the alternative forum.
- A foreign forum is “inadequate” only in the rare case where the remedy is “no remedy at all.” Minor differences in remedies do not defeat adequacy (id. at 254–55 & n.22).
- Standard of review is abuse of discretion (id. at 257).
Gonzalez v. Chrysler Corp., 301 F.3d 377 (5th Cir. 2002): Reiterated the two-step FNC framework (adequate/available forum first, then balancing of private/public interests) and clarified that significant limitations on damages or causes of action do not necessarily render a forum inadequate.
Quintero v. Klaveness Ship Lines, 914 F.2d 717 (5th Cir. 1990): Recognized the presumption that foreign law is adequate; the plaintiff must overcome this presumption.
DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785 (5th Cir. 2007): Assigned the burden to the defendant on FNC; informed the private-interest analysis, including the limited utility of deposition-only testimony when live testimony is impracticable; and the public-interest “local interest” assessment.
Saqui v. Pride Central America, LLC, 595 F.3d 206 (5th Cir. 2010): Catalogued the private interest factors.
Kempe v. Ocean Drill & Exploration Co., 876 F.2d 1138 (5th Cir. 1989), and Gonzalez: Together, they support that a forum is adequate even if some claims or damages are constrained, so long as some meaningful remedy exists.
Adams v. Merck & Co. Inc., 353 F. App’x 960 (5th Cir. 2009): Example of adequacy despite unavailability of a particular derivative claim.
In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008): In the transfer context, but widely applied to convenience analysis; the Fifth Circuit again rejected the argument that electronic document transfer renders the “ease-of-access” factor obsolete.
In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009): Persuasive authority likewise rejecting any notion that ESI neutralizes the sources-of-proof factor.
Perez & Compania (Cataluna), S.A. v. M/V Mexico I, 826 F.2d 1449 (5th Cir. 1987): Cited (via DTEX) for the idea that forcing parties to try a case on deposition testimony alone is not satisfactory.
Moreno v. LG Electronics, USA Inc., 800 F.3d 692 (5th Cir. 2015): Framed “local interest” by looking to the parties’ citizenship and the locus of the pertinent conduct.
Longoria ex rel. M.L. v. San Benito ISD, 942 F.3d 258 (5th Cir. 2019) and United States v. McGill, 74 F.3d 64 (5th Cir. 1996): Established the plain-error framework when arguments are not preserved.
Rollins v. Home Depot USA, 8 F.4th 393 (5th Cir. 2021): Forfeiture by failure to raise or brief issues.

These authorities provided the scaffolding for the court’s holdings on adequacy, the weight accorded to private/public interests, the non-obsolescence of the sources-of-proof factor, and the deference due to district court discretion.

Legal Reasoning

1) Adequacy and Availability of Israel as a Forum

Availability was uncontested: both sides agreed Israel is available, satisfying step one of the FNC inquiry.
Adequacy focused on whether OSR would be left with “no remedy at all” if required to litigate in Israel (Piper). OSR’s Israeli-law expert opined it was “very likely” Israeli courts would not enjoin extraterritorial misappropriation and suggested possible preemption of unfair competition under Israel’s Commercial Torts Law. REE’s expert countered that Israeli courts can issue extraterritorial injunctions and that Israeli law provides a cause of action by an employer against a company for misappropriation-related unfair competition.
The court emphasized:
- The presumption of adequacy (Quintero). Competing expert affidavits and “very likely” projections did not show Israel offers “no remedy at all.”
- Even if some causes of action are unavailable or damages limited, adequacy remains if meaningful relief is available (Kempe; Gonzalez; Adams).
- Assertions about witnesses’ self-incrimination privileges in Israel do not typically factor into adequacy; the adequacy inquiry centers on remedy availability, and many key witnesses in Israel would be outside U.S. subpoena power anyway, undermining claims that U.S. litigation would materially improve access to testimony.
- An ongoing Israeli criminal investigation regarding the same conduct does not make Israel unavailable.
Holding: OSR did not overcome the presumption of adequacy; Israel is an adequate alternative forum.

2) Private Interest Factors

The court analyzed the standard private interest factors (Saqui):

Ease of access to sources of proof: Although electronic transfer is possible, the court reiterated that location remains “germane” (Volkswagen; Genentech). REE showed core documents and communications are in Israel. OSR identified numerous U.S.-based third-party witnesses but did not rebut the overall concentration of core proof in Israel. This factor favored dismissal.
Availability of compulsory process for unwilling witnesses: Many critical third-party witnesses are in Israel and outside the reach of U.S. trial subpoenas (Fed. R. Civ. P. 45). REE presented evidence of likely unwillingness to testify in the U.S., especially in light of a related Israeli investigation. OSR identified few Texas witnesses, most outside subpoena range, reinforcing that depositions would not be a satisfactory substitute (DTEX; Perez). This factor favored dismissal.
Cost of obtaining attendance of willing witnesses: The district court did not explicitly detail this factor, but the record showed numerous Israeli witnesses whose travel to Texas would be costly. The Fifth Circuit cited DTEX in noting that large numbers of far-flung witnesses materially increase costs. This factor favored dismissal.
Possibility of a view of the premises: OSR’s suggestion that entire vehicles would need to be transported was unpersuasive in a source-code misappropriation case. This factor was neutral or irrelevant.
Other practical considerations: OSR’s reliance on the Israel–Hamas war’s impact on convenience was not preserved below; thus, review was for plain error, which OSR did not show (Longoria; McGill). OSR’s points about English fluency and WDTX’s technical expertise did not overcome burdens on Israeli witnesses nor demonstrate speed/expense advantages. This catch-all factor did not change the overall balance.

Conclusion on private interests: They collectively favored trial in Israel.

3) Public Interest Factors

The district court deemed court congestion neutral and concluded the forum-familiarity and foreign-law factors did not favor dismissal. OSR forfeited any appellate challenge to those findings (Rollins). The fifth factor—jury burden—strongly favored dismissal given minimal connection to the Western District of Texas.

Regarding “local interest,” the Fifth Circuit approved the district court’s focus on the Western District of Texas rather than a generalized U.S. interest, noting that precedent sometimes measures local interest at the state or district level, and sometimes at the national level, depending on context (compare DTEX with Gonzalez). Here, the locus of alleged misappropriation, development, and key actors was Israel; the REE U.S. footprint was thin (no U.S. employees; subsidiaries without principal U.S. offices; a non-operational Pflugerville integration center lacking a certificate of occupancy). Under Moreno and DTEX, that factual matrix gave Israel the stronger local interest.

Conclusion on public interests: They favored dismissal.

Impact and Implications

Reaffirmation of a high bar to defeat adequacy: Litigants cannot defeat FNC adequacy merely by pointing to uncertainty about foreign injunctive reach or the possible unavailability of a particular tort theory. The touchstone remains whether the plaintiff will be left with “no remedy at all.”
Self-incrimination privileges abroad are not dispositive: The court’s treatment suggests that differences in testimonial privileges typically do not make a forum inadequate, especially where subpoena power problems would also limit U.S. access to the same witnesses.
Electronic discovery has not neutralized the “ease of access” factor: Consistent with Volkswagen and Genentech, courts will continue to consider the geographic locus of documents, data, and witnesses.
Local interest turns on the locus of conduct and citizenship, not aspirational U.S. market ties: Leasing space or planning U.S. operations—without operational substance—will not generate a strong local interest to anchor litigation in a U.S. district.
Preservation matters: Arguments not raised in objections to the magistrate judge or not briefed on appeal were deemed forfeited or reviewed only for plain error. In international disputes, parties should build a complete preservation record on all adequacy and factor-based contentions (including geopolitical travel constraints).
DTSA/TUTSA claims do not guarantee a U.S. forum: Even federal trade secret claims may be dismissed to a foreign forum when the alleged acts, evidence, and witnesses are concentrated abroad.
Precedential weight: The opinion is unpublished (5th Cir. R. 47.5) and thus non-precedential, but it is persuasive authority that synthesizes existing FNC doctrine for cross-border IP disputes involving Israeli parties.

Complex Concepts Simplified

Forum non conveniens (FNC): A doctrine allowing dismissal when another country’s courts are better suited to resolve the dispute. Two steps: (1) Is there an adequate and available alternative forum? (2) Do private and public interest factors favor that forum?
Adequate alternative forum: A foreign forum is adequate if it offers some meaningful remedy and fair process. It need not mirror U.S. remedies. “Inadequate” means “no remedy at all,” a very high threshold.
Availability: The defendant must be amenable to process in the foreign forum. Here, Israel’s availability was uncontested.
Extraterritorial injunction: An order from a court directing a party to refrain from conduct occurring outside that court’s country. OSR argued Israel would not issue such orders; the Fifth Circuit found the record did not show adequacy failure.
Compulsory process and subpoena power: U.S. Rule 45 generally allows trial subpoenas within 100 miles of where a person resides or works. Foreign third-party witnesses are typically beyond reach; this strongly favors the forum where witnesses reside.
Deposition vs. live testimony: Courts disfavor forcing parties to rely primarily on depositions when live testimony from key witnesses is unavailable.
Private interest factors: Practicalities affecting the parties—access to proof, witness availability, costs, site visits, and other trial management considerations.
Public interest factors: Systemic considerations—court congestion, local interest in the dispute, choice-of-law/application of foreign law, and the burden on local juries.
Forfeiture and plain error: Issues not properly objected to at the magistrate stage or not briefed on appeal can be forfeited, leaving only plain-error review (a strict standard) or no review at all.

Conclusion

OSR v. REE reinforces core FNC principles in the cross-border IP and trade-secret context. The Fifth Circuit held that Israel is an adequate forum despite uncertainty over extraterritorial injunctions and potential differences in causes of action, because adequacy hinges on whether the plaintiff would be left without any remedy—which was not shown. The court also underscored that the modern prevalence of electronic evidence does not eliminate the relevance of where sources of proof and witnesses are located; subpoena power, cost, and logistical considerations continue to matter.

On public interests, the court credited Israel’s strong local interest based on the locus of conduct and parties’ citizenship, and it refused to burden a Texas jury with a dispute lacking substantial ties to the Western District of Texas. The opinion, although unpublished, offers persuasive guidance for litigants navigating transnational trade-secret litigation: build concrete foreign-law records, preserve all objections, and expect courts to weigh heavily the physical concentration of witnesses and evidence when deciding whether to keep such cases in a U.S. forum.