This Week In Trump

I haven’t written anything political for a while, for two reasons. I read a lot of political opinion and analysis, and I think that in 2018, no one I’m reading is actually helping to make things better. And these are mostly very good writers who make their living writing about politics. If we are going to get out of our national funk, it won’t be because of any political writer. Second, we don’t know how things are going to go. If we are living through a weird aberration that is going to come to an end, then I should be writing one kind of piece; but if we are living through the end of traditional American political life, then I should be writing something quite different.

But I can’t let the Supreme Court’s decision in Trump v. Hawaii, the case upholding the Trump administration’s Muslim travel ban, go by without comment. There’s no question in my mind that the Trump policy is un-American, morally bankrupt, and self-defeating. But I’ve also previously given reasons for thinking that it’s constitutional. If we are living in a world where Trump and his supporters are trounced at the polls and the Republican Party steps back from its decade plus of norm-breaking radicalism, then Hawaii seems sound. But if we are living in Trump’s world, then Hawaii reads like the next Korematsu.

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Cert. Watch: Sudan v. Harrison and Kumar v. Sudan

Here is an update to an earlier cert. watch on an interesting service of process question under the FSIA. There are now two petitions before the Supreme Court, Republic of Sudan v. Harrison, No. 16-1094, and Kumar v. Republic of Sudan, No. 17-1269. The question in both is whether you can serve process on a foreign state under the FSIA (28 U.S.C. § 1608(a)(3)) by mailing the summons and complaint to the foreign minister in care of the foreign state’s embassy or consulate, rather than by mailing the summons and complaint to the foreign minister at the foreign ministry.

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Case of the Day: Animal Science Products v. Hebei Welcome

The case of the day is Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. (S. Ct. 2018). I noted the case back in January.

The case was a class action brought by purchasers of vitamin C against four Chinese manufacturers of the product, claiming they had agreed to fix the price of the product and thus violated the Sherman Act. The defendants moved to dismiss on the grounds that Chinese law required them to fix the price, and thus that they could not be liable under doctrines such as the act of state doctrine. In the District Court, the Chinese government submitted an amicus brief agreeing with the Chinese firms and stating that it had required them to adhere to a price regime. But the plaintiffs argued that the Chinese government had not identified any particular provision of Chinese law that supported its view and that China had apparently announced that it was not going to intervene in the market. The District Court denied the manufacturers’ motion to dismiss, holding that the Chinese government’s statements about its own laws were not conclusive on the question. The antitrust case was tried to a jury, which returned a verdict for the plaintiffs and which specifically found that the defendants had not been “actually compelled” by the Chinese government to fix the price of the vitamin. The court entered a judgment on the verdict for $147 million, and it enjoined further violations of the Sherman Act. On appeal, the Second Circuit reversed. While it recognized that the courts were not unanimous on the question, it held that “When a foreign government, acting through counsel or otherwise, directly participates in U.S. court proceedings by providing a [statement] regarding the construction and effect of [the foreign government’s] laws and regulations, which is reasonable under the circumstances presented, a U.S. court is bound to defer to those statements.”

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Case of the Day: Harmouche v. Consulate of Qatar

The case of the day is Harmouche v. Consulate General of the State of Qatar (S.D. Tex. 2018). Gus Harmouche worked for the Qatari consulate in Houston as a public relations manager. He claimed that the consulate discriminated against him on account of his age and his religion, ultimately terminating his employment. The consulate moved to dismiss for lack of jurisdiction.

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Case of the Day: Hardy Exploration v. India

The case of the day is Hardy Exploration & Production (India), Inc. v. Government of India (D.D.C. 2018). It’s a rare example of a US court refusing to confirm an international arbitral award on the grounds that it violates US public policy.

Hardy had a contract with the Indian government to search for and extract hydrocarbons in the waters off India’s southeastern coast. If it found oil, it would have two years under the contract to determine if the find was commercially viable; but if it found gas, it would have five years. Hardy found hydrocarbons and claimed it had five years to make its determination, but the Indian government disagreed, claiming that Hardy only had two years. When two years had passed, the government declared that Hardy’s rights had expired. Hardy was never allowed back into the area. It demanded arbitration. The tribunal, seated in Kuala Lumpur, issued an award in Hardy’s favor requiring specific performance of the contract (i.e., requiring India to allow Hardy back into the site to continue its activities) and awarding interest.

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Case of the Day: Parfitt Way Management v. GSM by Nomad

The case of the day is Parfitt Way Management Corp. v. GSM by Nomad, LLC (N.D.N.Y. 2018). The main claim was for breach of contract for the refurbishment of a trailer. Parfitt sued Guillaume Langevin and Steve Clement on a veil-piercing theory, alleging that they were personally liable for GSM’s alleged breaches for reasons that are not important for our purposes. Langevin and Clement moved to dismiss for insufficient service of process.

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Case of the Day: Diaz v. Galopy Corp.

The case of the day is Diaz v. Galopy Corp. International, N.V. (N.Y. Sup. Ct. 2018). In 2014, Anibal Montenegro Diaz, a Venezuelan lawyer, sued Galopy in a Venezuelan court for unpaid legal fees. In 2015, the court found in her favor on liability, and in 2016, it awarded Diaz the fees and sent the matter to a revaluation court for assessment, i.e., an adjustment in light of the hyperinflation afflicting the Venezuelan currency, the Bolivar. In June 2016, the court awarded fees in the adjusted amount of approximately 169 million Bolivars. In August 2016, the court adjusted the amount to more than one billion Bolivars. Diaz then sued in New York seeking recognition and enforcement.

There was no real question about recognition. The real question was the rate at which the New York court should convert Bolivars to dollars, assuming that the New York judgment would be denominated in dollars. Should it use the government’s official rate, which severely overvalues the Bolivar? Or should it use the market rate? New York’s statute requires conversion “at the rate of exchange prevailing on the date of entry of the judgment or decree.”

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