North Dakota Recognizes Inherent Power to Enjoin Collateral Foreign “Manifestly Unfounded” (Anti-SLAPP) Attacks on Its Proceedings

1. Introduction

Energy Transfer v. Gion, 2026 ND 93 arises from high-stakes tort litigation in North Dakota between Energy Transfer LP; Energy Transfer Operating, L.P.; and Dakota Access, LLC (collectively, “Energy Transfer”) and multiple Greenpeace-affiliated defendants, including Greenpeace International (“GPI”). After six years of litigation and a three-week jury trial, the jury returned a unanimous verdict for Energy Transfer, awarding more than $130 million against GPI (and more than $666 million total against three Greenpeace defendants).

Two weeks before the North Dakota trial began, GPI filed a separate action in the Netherlands (“the Dutch action”), invoking European anti-SLAPP protections and seeking, as pleaded, declarations and relief premised in part on the contention that Energy Transfer’s North Dakota lawsuit was “manifestly unfounded and abusive.” Energy Transfer moved in North Dakota for an antisuit injunction to prevent GPI from prosecuting that Dutch action. The district court denied the motion.

The North Dakota Supreme Court granted supervisory review (rather than waiting for an eventual appeal) because the petition implicated fundamental private interests (protecting the integrity and enforceability of a jury verdict) and important public interests (protecting North Dakota judicial proceedings from collateral foreign attacks), and because the propriety of a foreign antisuit injunction was a question of first impression in North Dakota.

2. Summary of the Opinion

The Court held that North Dakota district courts possess inherent equitable authority—rooted in the common law and preserved by the North Dakota Constitution and statutes—to enjoin a person subject to their personal jurisdiction from prosecuting a duplicative or collateral proceeding in a foreign forum.

The Court adopted the district court’s chosen analytical structure from BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea's Def. Acquisition Program Admin., but concluded the district court misapplied that framework by (1) focusing on the labels of the Dutch claims (e.g., “anti-SLAPP”) rather than the elements and practical effect of those claims, and (2) giving comity an unduly truncated analysis.

The Supreme Court therefore granted the supervisory writ and remanded with instructions to enter a narrowly tailored antisuit injunction:

  • Enjoin GPI from pursuing Dutch claims that, “as pleaded,” require a finding that the North Dakota case lacked legal foundation, including claims premised on the EU Directive “manifestly unfounded” merits screen (Articles 11 and 16) and any Article 17 claim incorporating that screen.
  • Do not enjoin Dutch claims that can be proved without requiring the Dutch court to find the North Dakota claims unfounded— including the “abusive court proceedings” prong (Articles 14 and 15) to the extent it rests on independent purpose-and-conduct evidence under Article 4(3), and claims based on Energy Transfer’s dismissed federal RICO action or alleged out-of-court defamatory statements.
  • GPI may not evade the injunction by repleading barred theories “under a different label.”

Dissent: Chief Justice Fair McEvers agreed supervisory review and court power existed, but would have deferred to the district court’s discretion and denied the writ, emphasizing restraint, comity, and the abuse-of-discretion standard.

3. Analysis

3.1 Precedents Cited

A. Supervisory jurisdiction and why the Court intervened now

  • Black Gold OilField Servs., LLC v. City of Williston: Used to justify treating an attempted interlocutory appeal (without N.D.R.Civ.P. 54(b) certification) as a petition for supervisory writ, and to restate the abuse-of-discretion/misapplication-of-law standard. The case supplied the procedural “on-ramp” for immediate review here.
  • Manning v. Jaeger and Wilkinson v. Bd. of Univ. & Sch. Lands: Quoted for the high bar governing supervisory writs—rare, cautious use, to prevent injustice when no adequate alternative remedy exists.
  • Bobcat of Mandan, Inc. v. Doosan Bobcat N. Am., Inc., Fargo Women's Health Org., Inc. v. Lambs of Christ, Wrigley v. Romanick, Smith v. Isakson, Mitchell v. Sanborn, City of W. Fargo v. Olson, State ex rel. Madden v. Rustad, and Discover Bank v. Romanick: These decisions provided the Court’s taxonomy of when it will (and will not) exercise supervisory jurisdiction, particularly where “fundamental interests” or “important public interest” issues arise. They supported the Court’s conclusion that protecting the integrity of North Dakota proceedings from a collateral foreign merits attack justified extraordinary intervention.

B. Standard of review and the “misapplied law” path to reversal

  • Mann v. N.D. Tax Comm'r: Explained that supervisory proceedings are independent yet “review” a trial court’s judicial act.
  • G&D Enters. v. Liebelt: Provided the general rule that grant/denial of injunctive relief is equitable, discretionary, and reviewed for abuse of discretion.
  • Twete v. Mullin and Black Gold OilField Servs., LLC v. City of Williston: Reinforced that a district court necessarily abuses discretion if it misinterprets or misapplies the law, and that legal questions are reviewed de novo. This became the majority’s core rationale for intervention: not merely a different weighing of factors, but a framework misapplication.

C. Authority to issue a foreign antisuit injunction (in personam equity power)

  • BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea's Def. Acquisition Program Admin.: Supplied the three-step framework the North Dakota Supreme Court adopted: (1) substantial similarity of parties and issues, (2) equitable considerations, and (3) comity.
  • Goss Int'l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft: Cited for the proposition that courts may enjoin persons subject to their jurisdiction from prosecuting foreign suits, and—critically—for the “conservative” comity approach adopted by the Eighth Circuit. North Dakota adopted that conservative approach within the BAE Systems structure.
  • Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, Kaepa, Inc. v. Achilles Corp., Laker Airways Ltd. v. Sabena, Belgian World Airlines, Canon Latin Am., Inc. v. Lantech (CR), S.A.: These federal cases illustrated that antisuit injunctions are recognized tools, that tests vary by circuit, and that comity is an ever-present consideration. Quaak informed the “gatekeeping inquiry” (same parties/issues) and warned against inflexible rules. Laker Airways supplied foundational comity principles and explained that no precise rules govern. Kaepa was invoked for the inference of vexatiousness when a foreign action is filed as a strategic, late-stage duplicate.
  • Niemeyer v. Niemeyer and Bridas Corp. v. Unocal Corp.: State-court authorities used to show this is not a uniquely federal power and to emphasize the “additional layer of concern” when foreign tribunals are involved.
  • Hawkins v. Ireland (with supporting equity treatise history via Joseph Story) and State ex rel. City of Minot v. Gronna: Anchored the majority’s historical conclusion: North Dakota inherited this in personam equity power at statehood and preserved it constitutionally and statutorily (e.g., N.D.C.C. § 27-05-06(3)).

D. Personal jurisdiction as a prerequisite to enjoining a party

  • Goss Int'l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft: Provided the basic predicate: the enjoining court must have personal jurisdiction over the enjoined party.
  • Solid Comfort, Inc. v. Hatchett Hosp. Inc. and Hansen v. Scott: Cited for the prima facie standard at the motion-to-dismiss stage.
  • Boit v. Gar-Tec Prods., Inc. and Carteret Sav. Bank, FA v. Shushan: Used to explain that after trial, jurisdictional facts are assessed on the trial record (preponderance-type framing), supporting the majority’s conclusion that the verdict’s tort findings support jurisdiction for purposes of the writ.
  • Walden v. Fiore: Not applied to decide jurisdiction in this writ proceeding, but flagged as an argument GPI preserved (especially regarding conspiracy-based jurisdiction) for post-trial motions and any later appeal.

E. The dissent’s additional authorities emphasizing restraint

  • Advanced Bionics Corp. v. Medtronic, Inc. and Auerbach v. Frank: Cited to argue that parallel proceedings and potential res judicata effects are natural consequences of concurrent jurisdiction and not, without more, grounds for an antisuit injunction.
  • Gau Shan Co., Ltd. v. Bankers Trust Co.: Invoked to caution that antisuit injunctions can have unintended widespread effects and should be reserved for “compelling” policy evasion.
  • State ex rel. Stenehjem v. Simple.net, Inc.: Referenced by the district court (as described by the dissent) in its comity discussion, reflecting a general preference for restraint when foreign-state interests are implicated.

3.2 Legal Reasoning

A. The new North Dakota rule: inherent authority + structured test + conservative comity

The opinion accomplishes three doctrinal moves that together form its precedential core:

  1. Power: North Dakota district courts have inherent equitable authority (in personam) to enjoin a party within their personal jurisdiction from prosecuting a duplicative or collateral foreign proceeding. This is grounded in historical equity practice and preserved by constitutional and statutory text.
  2. Framework: North Dakota adopts the BAE Sys. Tech. Sol. & Servs., Inc. v. Republic of Korea's Def. Acquisition Program Admin. three-step analysis: (1) substantial similarity of parties and issues; (2) equitable factors (policy frustration, vexatiousness, threats to in rem/quasi in rem jurisdiction, and other equities); and (3) comity.
  3. Comity posture: Within that framework, North Dakota adopts the Eighth Circuit’s Goss Int'l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft “conservative” approach: comity is a substantial weight against foreign antisuit injunctions, but not a categorical bar.

B. “Substantial similarity” is element-driven, not label-driven

The district court’s key mistake, in the majority’s view, was treating “anti-SLAPP” as a different “issue” because North Dakota does not recognize a SLAPP cause of action. The Supreme Court reframed the inquiry: the relevant comparison is between what the foreign claim requires the foreign court to decide and what the North Dakota case already decided.

Applying that approach, the Court held the Dutch action (as pleaded) was substantially similar because it invoked the EU directive’s “manifestly unfounded” track (Articles 11 and 16), which necessarily asks a foreign court to determine that Energy Transfer’s North Dakota claims lacked legal merit—i.e., to revisit the merits that a North Dakota jury already decided. In short, the “gatekeeping” inquiry turns on operative elements and practical effects, not nomenclature.

C. Equity and timing: the “eve of trial” Dutch filing as collateral pressure

On the equitable factors, the Court emphasized the strategic timing: after six years of North Dakota litigation, GPI filed in Amsterdam two weeks before trial. Citing the logic of Kaepa, Inc. v. Achilles Corp., the Court treated this timing as supporting an inference of vexatiousness and an effort to create a collateral vehicle to undermine or offset the impending verdict.

The Court also identified a strong forum policy: North Dakota’s interest in preserving the integrity and finality of its adjudicative process. Rather than permitting a foreign lawsuit designed to declare the North Dakota case “manifestly unfounded” before ordinary North Dakota post-trial and appellate processes run their course, North Dakota courts may use equity to prevent the foreign action from functioning as an end-run around local review mechanisms.

D. Comity: real but outweighed in a first-filed, collateral-attack setting

The district court had concluded comity “does not apply” because the Dutch SLAPP and defamation claims were not pending in North Dakota. The Supreme Court held this was a legal error: comity is part of the analysis precisely because the injunction restrains litigation in a foreign sovereign’s tribunal.

Applying conservative comity principles, the Court nevertheless found comity concerns diminished because (1) the North Dakota action was first-filed by six years; (2) the Dutch filing targeted the anticipated merits of the North Dakota case; and (3) the EU directive itself contemplates remedies at the recognition/enforcement stage (e.g., Article 16), undercutting the need for a preemptive merits-screen collateral suit.

E. Remedy: narrow tailoring keyed to the “manifestly unfounded” merits screen

The Court’s remedy is as important as its recognition of power. It did not authorize a blanket ban on all Dutch litigation. Instead, it required the injunction to track the specific collateral-attack mechanism: claims whose elements require a “manifestly unfounded” finding (Articles 11 and 16, and any Article 17 claim incorporating that merits screen).

In contrast, claims that can be proved without requiring a Dutch court to find the North Dakota claims unfounded—such as the directive’s “abusive” track (Articles 14 and 15, grounded in Article 4(3) purpose-and-conduct evidence), or claims about the dismissed federal RICO action and alleged out-of-court defamatory statements—remain permissible. The Court also included an anti-evasion principle: relabeling cannot circumvent the injunction.

F. The dissent: deference to discretion and skepticism of “policy frustration”

Chief Justice McEvers’ dissent agreed the power existed but emphasized that foreign antisuit injunctions should be used “sparingly,” that the district court’s analysis (though brief) reflected a rational process, and that the abuse-of-discretion standard should control. The dissent treated parallel proceedings and the possibility of inconsistent outcomes as generally tolerable features of concurrent jurisdiction (citing, among others, Advanced Bionics Corp. v. Medtronic, Inc.) and viewed North Dakota’s policy interest as insufficiently compelling to justify characterizing denial of the injunction as an abuse of discretion.

3.3 Impact

  • First explicit recognition in North Dakota: District courts can issue foreign antisuit injunctions as an incident of their equitable powers, provided they have personal jurisdiction over the enjoined party.
  • Adoption of a predictable test: Litigants now have a North Dakota-specific roadmap: the BAE Systems three-step framework, coupled with a conservative comity posture consistent with Goss.
  • Element-based “substantial similarity” inquiry: Parties cannot avoid antisuit scrutiny by pleading foreign-law labels; North Dakota courts will examine whether the foreign claim requires deciding the same underlying merits questions.
  • Protection against “preemptive” foreign anti-SLAPP merits screens: Where a foreign regime authorizes affirmative relief premised on the domestic suit being “manifestly unfounded,” this decision authorizes North Dakota courts to prevent that mechanism from becoming a collateral merits retrial of a North Dakota case.
  • Strong emphasis on tailoring: The decision signals that even when an injunction is justified, North Dakota courts must carve out independent foreign claims that do not require contradicting the North Dakota merits.

4. Complex Concepts Simplified

Supervisory writ
An extraordinary order by a higher court directing a lower court to correct an error immediately, used rarely when waiting for a normal appeal could cause injustice or when an issue is of vital public importance.
Antisuit injunction
An order directing a party (not the foreign court) to stop pursuing litigation in another jurisdiction. It operates in personam (against the person), not as a command to the foreign tribunal.
International comity
A principle of mutual respect among sovereign legal systems. Courts weigh comity when considering whether restraining foreign litigation is justified. Under the “conservative” approach adopted here, comity is a strong reason to hesitate—but it can be outweighed when the foreign suit undermines vital domestic interests.
SLAPP / anti-SLAPP
“Strategic Litigation Against Public Participation.” In many U.S. jurisdictions, anti-SLAPP laws are typically defensive, enabling early dismissal of meritless suits targeting speech. The opinion explains the EU directive differs by permitting certain affirmative compensation actions, potentially even while the third-country suit is pending.
“Manifestly unfounded” vs. “abusive” (EU Directive (EU) 2024/1069)
As described by the Court, “manifestly unfounded” functions like a merits screen (is the underlying claim legally meritless?). “Abusive” focuses more on purpose and conduct (was the proceeding brought to harass/suppress participation?), and may be provable without deciding the underlying merits. The injunction must target the former if it would require contradicting the North Dakota verdict.
In rem / quasi in rem jurisdiction
Jurisdiction over property (in rem) or disputes tied to property (quasi in rem). Threats to such jurisdiction can justify antisuit injunctions, though this factor was not central to the majority’s holding here.
Narrow tailoring
An injunction must restrict no more conduct than necessary to address the specific harm—in this case, only those Dutch claims that would require a finding that the North Dakota suit lacked legal foundation, while leaving independent claims intact.

5. Conclusion

Energy Transfer v. Gion, 2026 ND 93 establishes, for the first time in North Dakota, that district courts have inherent equitable authority to issue foreign antisuit injunctions against parties within their personal jurisdiction. It also supplies the governing analytical method: the BAE Systems three-step framework, paired with the Goss “conservative” comity approach.

The most practically significant doctrinal instruction is methodological: courts must evaluate “substantial similarity” by examining claim elements and effects, not the foreign-law labels attached to them. Applying that principle, the Court treated GPI’s Netherlands “manifestly unfounded” theory (as pleaded) as a collateral merits attack on a North Dakota jury verdict and required a narrowly tailored injunction to stop that specific mechanism—while preserving room for genuinely independent foreign claims.