The case of the day is EFG Bank AG, Cayman Branch v. AXA Equitable Life Insurance Co. (S.D.N.Y. 2018). The judge had previously denied a motion by EFG, a Swiss bank, for a protective order that would have required AXA to seek discovery of information located in Switzerland via the Hague Evidence Convention. EFG sought reconsideration.
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The case of the day is EFG Bank AG, Cayman Branch v. AXA Equitable Life Insurance Co. (S.D.N.Y. 2018). The judge had previously denied a motion by EFG, a Swiss bank, for a protective order that would have required AXA to seek discovery of information located in Switzerland via the Hague Evidence Convention. EFG sought reconsideration.
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I know I am supposed to be writing about Jesner v. Arab Bank, but the monkey selfie case calls. I wrote about the case back in November 2015, and I noted the settlement in September 2017, focusing particularly on the severe costs borne by David Slater, the wildlife photographer who placed the camera that took the photo of Naruto, the monkey in question.
The case was absurd from the start:
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I know I am supposed to be writing about Jesner v. Arab Bank, but the monkey selfie case calls. I wrote about the case back in November 2015, and I noted the settlement in September 2017, focusing particularly on the severe costs borne by David Slater, the wildlife photographer who placed the camera that took the photo of Naruto, the monkey in question.
The case was absurd from the start:
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I didn’t set out to have so much Lago Agrio coverage this week, but there is something new to report. As I reported on April 11, long after Judge Kaplan entered his final judgment against Donziger and the two LAP representatives and long after the Second Circuit decided the appeal, Chevron asked the court to enter a default judgment against the many LAPs who had defaulted early in the RICO case. Judge Kaplan has now done just that.
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While there still is no transcript or recording of the hearing in the Court of Appeal last week, the Lago Agrio plaintiffs have issued a press release that, even after putting aside all the things that should be put aside, casts some light on what happened at the hearing. It seems that both Chevron Corp. (the US parent) and the indirect Canadian subsidiary were set to argue separately. When Chevron US’s lawyer got up to argue, the LAPs say, he was winding up to deliver In Catilinam, but the judges stopped him right away. They indicated they didn’t want to hear about the fraudulent Ecuadoran judgment. The lawyer sat down, much sooner than he had planned according to the LAPs.1
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On Friday I wrote about the FSIA issues raised by the DNC’s lawsuit against Russia, the Trump campaign, et al. There is is one more Letters Blogatory angle to the new suit. One of the defendants is Julian Assange, whom I’ve written about before. My feelings on Mr. Assange are of the same kind as my feelings about President Trump, i.e., not warm. So again, without discussing the merits of the claims or the political wisdom of the suit, here are some comments on the tricky service of process issues the DNC will face. You know this already, but just as a reminder, Mr. Assange is holed up in the Ecuadoran embassy in London, because though he is very quick to pass judgment on others, he skipped bail and refuses to appear in an English court to answer charges against him. The Ecuadorans recently hatched a scheme to get him out of the embassy: they first granted him Ecuadoran citizenship and then sought to give him diplomatic status. The UK refused to accept him as an Ecuadoran diplomat. There is a question about whether, in light of these facts, the UK is now obligated to allow Assange safe passage to Ecuador, but if that’s so, then Assange and Ecuador will be exploiting a strange and unintended loophole. In any case, there is no indication he is headed to Ecuador anytime soon. In the meanwhile, Ecuador, again embarrassed by Mr. Assange’s shenanigans, has cut his access to the internet, and for purposes of this post I assume that that hasn’t changed.
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On Friday I wrote about the FSIA issues raised by the DNC’s lawsuit against Russia, the Trump campaign, et al. There is is one more Letters Blogatory angle to the new suit. One of the defendants is Julian Assange, whom I’ve written about before. My feelings on Mr. Assange are of the same kind as my feelings about President Trump, i.e., not warm. So again, without discussing the merits of the claims or the political wisdom of the suit, here are some comments on the tricky service of process issues the DNC will face. You know this already, but just as a reminder, Mr. Assange is holed up in the Ecuadoran embassy in London, because though he is very quick to pass judgment on others, he skipped bail and refuses to appear in an English court to answer charges against him. The Ecuadorans recently hatched a scheme to get him out of the embassy: they first granted him Ecuadoran citizenship and then sought to give him diplomatic status. The UK refused to accept him as an Ecuadoran diplomat. There is a question about whether, in light of these facts, the UK is now obligated to allow Assange safe passage to Ecuador, but if that’s so, then Assange and Ecuador will be exploiting a strange and unintended loophole. In any case, there is no indication he is headed to Ecuador anytime soon. In the meanwhile, Ecuador, again embarrassed by Mr. Assange’s shenanigans, has cut his access to the internet, and for purposes of this post I assume that that hasn’t changed.
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The Democratic National Committee has filed a lawsuit against Russia, Wikileaks, President Trump’s campaign, and others in New York. The complaint features many of the claims we have been reading in the news about the hacking of the DNC’s emails, their publication on Wikileaks, the Trump campaign’s participation, and so forth.
My views on President Trump and his administration are well-known to regular readers. I’m not going to comment on the merits of the claims or on the political wisdom of the suit. But I think it is worth it to address, briefly and in a preliminary way, the jurisdictional issues raised by the claim against Russia and instrumentalities of the Russian state. The basic rule is that Russia is immune from the jurisdiction of the US courts unless the DNC can show that an exception applies. The DNC has pointed to two exceptions, the non-commercial tort exception and the commercial activity exception. From the complaint (¶ 29):
Russia is not entitled to sovereign immunity because the DNC’s claims arise out of Russia’s trespass onto the DNC’s private servers—a tortious act committed in the United States. In addition, Russia committed the trespass in order to steal trade secrets and commit economic espionage, two forms of commercial activity undertaken in and directly affecting the United States.
It appears from the complaint (though it’s not crystal-clear) that the claim is that Russian agents hacked the DNC’s servers (which are located in the United States) from Russia. Or at least there is no allegation to the contrary. I assume for purposes of this post that that’s the case.
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The Ontario Court of Appeal held a two-day hearing on the Lago Agrio plaintiffs’ appeal from the summary judgment in favor of Chevron Canada. The gist of the decision was that the LAPs had not shown they were entitled to pierce the corporate veil and therefore they could not look to the assets of Chevron Canada to satisfy the judgment against Chevron Corp., even assuming the Canadian courts would someday find the Ecuadoran judgment entitled to recognition and enforcement. I gave my basic view on this in a prior post, and in the comments to that post.
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