Lago Agrio: Gibraltar and Other Updates

A few updates from the Lago Agrio case:

  1. The Supreme Court of Gibraltar has entered a default judgment against Pablo Fajardo, the Frente de Defensa de la Amazonia, and others, for approximately $38 million in damages. It also enjoins them from doing anything “in or from Gibraltar for the purpose of assisting or supporting” the LAPs or the enforcement of the Ecuadoran judgment. I noted previously the injunction entered against Amazonia, the entity set up to distribute the Lago Agrio judgment proceeds. Note, by the way, that in Gibraltar as in New York, the Supreme Court is a first-instance court.
  2. I haven’t seen a good report on this yet, but it seems from various tweets etc. that I’ve read that there was a recent hearing in Ecuador’s Constitutional Court. The purpose of the proceeding is not completely clear to me. Readers should recall my basic view on the Ecuadoran proceedings: Chevron made a good showing of corruption in the Lago Agrio court, but no such showing for the appellate courts or other courts. My own view, which the US courts have not accepted, is that without such a showing, it should be left to the Ecuadoran courts to decide whether a first-instance decision was infected by fraud. That is, when there is no evidence that the courts overall fail to provide due process, case-specific claims of fraud should not be a defense to recognition and enforcement. But just to be super-clear, this is a statement of what I think the law should be, not what it is; the law is actually to the contrary. In any case, if I can find out more about this proceeding I will report it.
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Lago Agrio: Chevron Prevails In Ontario Court of Appeal

The Court of Appeal for Ontario has affirmed the Superior Court’s decision holding that the Lago Agrio plaintiffs cannot reach the assets of Chevron’s indirect subsidiary in Canada to satisfy the judgment against Chevron they obtained in Ecuador.
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Case of the Day: State Farm v. Amazon

The case of the day is State Farm Fire & Casualty Co. v. Amazon.com, Inc. (D. Ariz. 2018). Following a fire at the home of Hussein Zeitoun, Zeitoun’s insurer, State Farm, brought an action against LG Chem, Ltd. The facts of the case aren’t stated in the decision, but we can infer that State Farm paid Zeitoun’s claim for fire damage and then, as subrogee, brought a product liability claim against LG.

The case was filed in the Maricopa County Superior Court. Amazon, which was also a defendant, then removed it to the District Court. After removal, State Farm, using a “vendor” to handle the matter, sent a request for service to the South Korean central authority. The request sought service of the complaint and the state-court summons. The judge quashed the service, holding that the summons failed to meet the formal requirements of FRCP 4(a)(1).
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Case of the Day: Kinyua v. Sudan

The case of the day is Kinyua v. Republic of Sudan (D.D.C. 2018). The case arose out of the bombing of the US embassies in Kenya and Tanzania in 1998. Since 2001, victims and their families had been suing Iran and Sudan, state sponsors of the terrorist attacks, under the FSIA’s state-sponsored terrorism exception to the rule of foreign sovereign immunity.

The first round of cases resulted in default judgment against Sudan and Iran. Kinyua and others then sued, bringing similar claims. By that time, Sudan, which had defaulted earlier, was again participating in the FSIA cases against it. It moved to dismiss the action on the grounds that it was barred by the statute of limitations. The terrorism exception requires actions to be brought by 2006 or within ten years after the claim arises. 28 U.S.C. § 1605A(b). The court granted the motion, thus ending the case against Sudan. The plaintiffs then sought default judgments against Iran.
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Case of the Day: Devengoechea v. Venezuela

The case of the day is Devengoechea v. Bolivarian Republic of Venezuela (11th Cir. 2018). Ricardo Devengoechea, a US citizen who lived in Florida, was the descendant of Joaquín de Mier, a friend of the illustrious Simón Bolívar. Bolívar spent his last days on the island of Santa Maria with de Mier, and de Mier had a collection of Bolívar’s papers and personal effects that passed to his heirs through the generations, and ultimately to Devengoechea.

High officials of the Venezuelan government came to Florida to negotiate with Devengoechea for the purchase of the collection. They persuaded Devengoechea to travel back to Venezuela with them and with the collection so that government experts could evaluate it. Devengoechea agreed. Can you guess what happened? Several years later, Devengoechea is back in the United States, but the collection is still in Venezuela, and the government has not paid for it or provided an explanation.
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Case of the Day: United States v. McLellan

The case of the day is United States v. McLellan (D. Mass. 2018). Ross McLellan was charged with conspiracy, securities fraud, and wire fraud. He sought an order to compel the government to exercise rights under the US/Netherlands MLAT so that he could obtain the testimony of a Dutch citizen for trial. He sought similar orders to compel the government to seek evidence for his use under the US/UK MLAT. In the alternative, he sought to exclude evidence related to the transactions on which he was seeking information at trial.
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Ingrid Wuerth on The Supreme Court’s Original Jursidiction in FSIA Cases

Friend of Letters Blogatory Ingrid Wuerth has a post at Lawfare asking whether the Supreme Court might exercise its original jurisdiction in a case brought by a US state against Russia on account of election meddling. For non-American readers: the Supreme Court typically takes cases by writ of certiorari to the federal courts of appeals or to the highest court in a state in which a decision could be had in a particular case. The Court has complete discretion whether to grant the writ, and thus has complete control over its certiorari caseload. There is also a small appellate jurisdiction, in which parties have a right to appeal to the Supreme Court and the Court cannot simply refuse to hear the appeal. And there is the Court’s “original jurisdiction:” cases in which a party may bring its claim to the Supreme Court in the first instance, and the Supreme Court acts as the first-instance court. In practice, these days the original jurisdiction mostly involves disputes between states in the western United States about water rights.
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Case of the Day: Green v. First Liberty

The case of the day is Green v. First Liberty Ins. Corp. (E.D.N.Y. 2018). Nefeteri Green was driving in New York City when his car was hit by a car driven by Marco Suazo. Suazo’s car was owned by Monaco and registered to Isabelle Picco, Monaco’s representative to the United Nations. Green alleged that Suazo himself was an employee of the Monegasque mission; Suazo said instead that he was Picco’s husband. Green sued First Liberty, which had issued an insurance policy for Picco’s car. First Liberty moved to dismiss for failure to state a claim on which relief can be granted.

Ordinarily, of course, the victim cannot sue a negligent tortfeasor’s insurer, because there is no privity of contract between them. That’s a fancy way of saying the insurer undertook a duty to the insured, not to the plaintiff. By statute in New York, an injured person can sometimes sue the insurer, but only if he first gets a judgment against the tortfeasor. This rule was problematic in New York, where diplomats are a dime a dozen, because of the diplomat’s immunity from suit.
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Case of the Day: Alimanestianu v. United States

The case of the day is Alimanestianu v. United States (Fed. Cir. 2018). I have written about the case twice before, first on the decision on the motion to dismiss in December 2015, then on the decision on the motion for summary judgment in January 2017. Here was my description from the prior post:
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