Trump’s Birther Reboot

The Washington Post reported that the Trump Administration has stepped up efforts to deny passports to people in south Texas whose American birth certificates the government suspects are fraudulent and who were really born in Mexico. One milquetoast response is to remind yourself that the government has been bringing such claims for years and that in fact some midwives and physicians had submitted fraudulent birth certificates over a period of decades. So there’s nothing to see here—just ordinary enforcement of the ordinary law.

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Case of the Day: Korea Deposit Insurance Corp. v. Suh

The case of the day is Korea Deposit Insurance Corp. v. Suh (Cal. Ct. App. 2018). Tomato Savings Bank, a Korean bank, loaned ₩500 million to Debbie A. Suh. Suh failed to pay. The bank went bankrupt, and the KDIC was appointed trustee. It sued Suh in Korea on the loan. After a trial, the Korean court entered judgment for nearly ₩1 billion.

KDIC then sought recognition and enforcement of the judgment in the Riverside County (California) Superior Court—Suh was a US citizen residing in California. Suh’s evidence was that her father, who nominally was the guarantor of the loan, in fact had entered into the loan on her behalf without her knowledge and that he had kept all the proceeds.

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Case of the Day: Elfaridi v. Mercedes-Benz

The case of the day is Elfaridi v. Mercedes-Benz United States (E.D. Mo. 2018). Hend Aitoufella and Dean and Katherine Jarman brought a putative class action against Mercedes Benz USA, LLC and Daimler AG. Their claim was that a defect in Mercedes-Benz vehicles from 2003 to 2015 caused sunroofs to spontaneously shatter. Yikes! The plaintiffs served process on Daimler in Germany via the German central authority. Apparently in order to induce the central authority to execute the request for service of process, the plaintiffs’ counsel represented in writing to the central authority that the case “involves claims in which the plaintiffs do not, and will not” seek punitive damages. On this issue, Peter Bert’s 2013 post explains that service of a US complaint seeking punitive damages on a German defendant via the central authority does not violate the German defendant’s constitutional rights. On the other hand, in In re Takata (S.D. Fla. 2017), we saw that German courts nevertheless can refuse to execute such requests for service on the grounds that actions for punitive damages are not civil or commercial within the meaning of the Hague Service Convention.

The trick in today’s case is that the plaintiffs later filed an amended complaint seeking punitive damages. Daimler argued for dismissal on grounds of judicial estoppel.


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From the Archives

Here, without comment, is a very interesting document, the Fourth Annual Report of the Commission on International Rules of Judicial Procedurefrom the 1960s. I wanted to read it because I’ve got a case where I’m rebutting an argument that an obscure Massachusetts statute that mirrors § 1782 applies only to discovery in aid of sister-state litigation but not foreign litigation. The argument is wrong on its face, but I wanted to refer to the legislative history for confirmation. But it turns out that this report is hard to find. So I am posting it here as a public service in case anyone else is hunting for it.


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Case of the Day: Daskin v. Knowles

The case of the day is Daskin v. Knowles (Del. 2018). The wife was a dual citizen of the US and Greece. She and the husband, a Greek citizen, married in Delaware in 1990 and lived together in Greece until 2015. In 2015, the wife moved back to Delaware permanently due to marital problems. She filed a divorce petition in Delaware in 2017. The substantive issue raised by the husband was whether, in light of her back-and-forth travel, the wife had resided in Delaware for the requisite period of time before seeking divorce. If not, then the Delaware Family Court lacked jurisdiction. But the Letters Blogatory issue was whether service by mailing and publication, under a Delaware statute was sufficient.


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“Facts are Created”

One of Chevron’s gotcha moments in the Crude outtakes is the clip of Steven Donziger speaking with members of his litigation team. “Facts don’t exist,” he said, “facts are created.” I draw a few lessons from this clip. The first, of course, is “Don’t ever travel with a film crew.” The second is a little more serious and specific: litigation is a search for the truth, not a game, and lawyers are not charlatans but rather officers of the court  with an obligation to the truth as well as to the client.  But with all that said, I want to give a sympathetic reading of Donziger’s comment here. I think it’s not just possible but probable that Donziger was trying to make a point that everyone should agree is true. And yet—and here is the irony—it’s precisely the point he was trying to make on film that undercuts much of what he’s been trying to accomplish as he fights a rearguard action to save his law license, avoid Chevron’s collection efforts, and avoid being held in contempt of court.


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Case of the Day: Helmerich & Payne v. Venezuela

The case of the day is Helmerich & Payne International Drilling Co. v. Bolivarian Republic of Venezuela (D.C. Cir. 2018). I’ve written about the case several times before, most recently in a post on the Supreme Court’s 2017 decision. Guest poster Ira Ryk-Lakhman also wrote a more extensive overview of the Supreme Court’s decision. Here is my brief description of the facts from the prior posts:

Helmerich & Payne, an Oklahoma oil company, operated in Venezuela through subsidiaries incorporated under Venezuelan law. Beginning in 2007, its subsidiary made contracts with the Venezuelan state oil company, PDVSA, for the use of the subsidiary’s drilling rigs. But PDVSA quickly fell behind on payments under the contract. PDVSA did, however, promise that payments would be forthcoming, and H&P’s subsidiary completed the work under the contract. The subsidiary then prepared its equipment to be removed from the country, but the Venezuelan government then sent its national guard to prevent removal of the equipment and to force the negotiation of new contractual terms. Venezuela issued press releases stating that the drilling rigs had been nationalized. The government later issued a decree of expropriation and some Hugo Chavez-flavored anti-American press releases. Venezuela brought two eminent domain actions in its courts, supposedly to compensate H&P’s subsidiary. But the subsidiary never received service of process in the first case, and the second case was stayed indefinitely. H&P sued Venezuela and PDVSA. The defendants argued the claim was barred by the FSIA and under the act-of-state doctrine.

In the Supreme Court, the question was the pleading standard that applies when a plaintiff pleads a case within the expropriation exception to FSIA immunity. The holding: “[T]he expropriation exception grants jurisdiction only where there is a valid claim that ‘property’ has been ‘taken in violation of international law.’ § 1605(a)(3). A nonfrivolous argument to that effect is insufficient.”


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Case of the Day: Chembulk Houston v. M/V Monte Alegre

The case of the day is Chembulk Houston Pte. Ltd. v. M/V Monte Alegre (S.D. Tex. 2018). Chembulk had won a judgment against German defendants. The question was whether the $1,425 the plaintiff incurred in serving process via the Hague Service Convention was taxable as costs. Why so much? Well, the plaintiff had hired a vendor.


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