In a comment to my post on the Second Circuit’s decision in Chevron v. Donziger, Doug Cassel raises the possibility of a settlement: “The best way forward continues to be for all parties to pursue a settlement in good faith.” Now, I have no idea what is going on behind the scenes. But how should we think about the possibility of a settlement in the Lago Agrio case?
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The case of the day is In re King.com Ltd. (N.D. Cal. 2016). King, a Maltese company, is the developer of the Candy Crush video game. It owned the European Candy Crush trademark and related marks. It sued Storm8 Studios LLC and TeamLava LLC in the Civil Court of Malta, alleging that their Candy Blast Mania game infringed the Candy Crush mark. The Maltese court stayed the action pending EU Intellectual Property Office review of a challenge to the validity of the marks. King brought an application under § 1782 seeking leave to depose Perry Tam, Chak Ming Li, and William Siu, Storm8 and TeamLava executives, for use in the Maltese action (after the stay is lifted). At the ex parte stage, King argued that the Maltese action would necessarily continue whatever the outcome of the validity proceedings, because several of the marks at issue in the infringement lawsuit were not at issue in the validity proceeding; that the validity proceedings might take a decade to complete; and that discovery now was important because Malta imposes no obligation to preserve evidence and “Respondents had a history of changing corporate forms.” The court granted the application.
After the court granted the application, the Maltese court entered an order requiring preservation of documentary evidence but denying King’s request for discovery. The respondents then moved to quash the US subpoena.
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The case of the day is Aviation & General Insurance Co. v. United States (Fed. Cl. 2016). I first wrote about the case in June 2015, in connection with the decision denying the government’s motion to dismiss. Here was my description from the prior post:
The plaintiffs were insurance and reinsurance companies that had insured the aircraft hulls used on EgyptAir flight 648 and PanAm flight 103, two flights that were victims of terrorist attacks that, the United States determined, were sponsored by the government of Libya.
In 1996, Congress amended the FSIA to create a “state-sponsored terrorism” exception to sovereign immunity. The insurers then brought suit against Libya. But in 2008, Congress enacted the Libyan Claims Resolution Act, which allowed the government to restore Libya’s immunity. The United States and Libya entered into a claims settlement agreement, and the government, pursuant to the 2008 statute, terminated the pending lawsuits against Libya, including the insurers’ suit. The insurers had the right to seek compensation in the Foreign Claims Settlement Commission, an agency of the Department of Justice. But the insurers’ claims were unsuccessful for various reasons.
The question in today’s case is whether the government’s actions amounted to a taking of property for which the insurers are entitled to compensation under the Takings Clause of the Fifth Amendment, which provides: “nor shall private property be taken for public use, without just compensation.”
The court denied the government’s motion to dismiss, rejecting the claim that the plaintiffs’ choses in action were not property that could be taken and that the question was a nonjusticiable political question. Today’s decision deals with the proceedings on summary judgment.
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The case of the day is Georges v. United Nations (2d Cir. 2016). This is the Haiti cholera case. I’ve written about it a couple of times, including a post on the District Court’s decision dismissing the complaint. From the beginning I predicted dismissal on immunity grounds, and barring en banc review or intervention by the Supreme Court, that’s how it’s turned out.
Here was my description of the case from the prior post:
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I haven’t heard much from Brazil recently—I wonder what’s going on down there? (more…)
One of my favorite characters from the Lago Agrio story is David Russell, the purveyor of the SWAG, the “scientific wild-assed guess” about the cost of remediation that launched a thousand lawyers. I’ve written a couple of times about him. First, I reviewed his testimony on direct examination in the RICO trial, and second, I noted references to his offer to his consult for Chevron after he and Donziger fell out. Russell has collected his thoughts about his involvement in the saga in an essay he’s titled Jungle Fumble: A Brief History of and Inside Look at the Ecuador Lawsuit against Texaco/Chevron. Others have seen versions of this, but I believe I am linking to it here for the first time. It has historical interest, I think, as a first-person account of a key witness. The writing is much more engaging, though less lawyerly, than the witness statement Russell and Chevron’s lawyers prepared in advance of the trial.
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The Case of the Day is Alharbi v. The Blaze, Inc. (D. Mass. 2016). Foreign readers may not be familiar with Glenn Beck. He is one of the group that I like to call the carnival barkers: unserious, pseudo-intellectual commentators from whom many right-wing partisans get their news. (I’m sure there are carnival barkers of the left, too, but I’m not writing about them today). After the 2013 Boston Marathon bombing, Beck identified an injured bystander, Abdulrahman Alharbi, “as an active participant in the bombing, even after the authorities had publicly exonerated him.” He also told listeners that Alharbi, a Saudi Arabian student living in Massachusetts, “was involved in recruiting the Tsarnaev brothers, gave the ‘go order’ for the bombing, and was the ‘money man’ who funded the attacks.” Alharbi brought a defamation action.
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The case of the day is Commissions Import Export S.A. v. Republic of the Congo (D. Utah 2016). The Congolese government failed to pay Commissions on public works and materials contracts in the 1980s. An arbitral tribunal issued an award in favor of Commissions, and Commissions obtained recognition of the award in England in 2009. Commissions then brought an action in New York, which was transferred to the District of Columbia, seeking recognition and enforcement of the English judgment. That action resulted in a default judgment for approximately $630 million. Commission then registered the judgment in the District of Utah and served a subpoena on the Bank of Utah calling for information about its “role as owner trustee and security trustee” for a Boeing 787-8 Dreamliner.
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The case of the day is Weinstein v. Islamic Republic of Iran (D.C. Cir. 2016). The plaintiffs were victims of terrorist attacks who held unsatisfied judgments against Iran, North Korea, and Syria. They sought to attach “Internet data” managed by the Internet Corporation for Assigned Names and Numbers (ICANN), namely the top-level domains for Iran (.ir), North Korean (.kp), and Syria (.sy). In other words, the plaintiffs wanted to assume control of the defendant countries’ top-level domains in partial satisfaction of the judgments.
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The case of the day is the Akhbar Beirut case (S.T.L. 2016). The case, for contempt, was brought against a Lebanese newspaper company and its editor-in-chief, Ibrahim Al Amin, for contempt of the Special Tribunal for Lebanon, an international tribunal established by the Security Council to hear cases brought against people accused in the February 2005 attack in which former prime minister Rafik Hariri and others were killed.
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