Read more about the article Case of the Day: Hulton v. Bayerische Staatsgemaldesammlungen
Grenzen des Verstandes, by Paul Klee

Case of the Day: Hulton v. Bayerische Staatsgemaldesammlungen

The case of the day is Hulton v. Bayerische Staatsgemaldesammlungen (S.D.N.Y. 2018). Michael and Penny Hulton were the heirs of Alfred Flechtheim, a German Jew who was a prominent art collector before the war. Among other paintings, he had works by Beckmann, Gris, and Klee. When the Nazis came to power, Flechtheim fled to Paris, and as a result of Nazi persecution, he was “forced to place his property at the disposal” of Alfred Schulte, a “Nazi tax advisor.” Another Nazi, Alex Vömel, took over Flechtheim’s gallery.

It is unclear whether Vömel, Schulte, or someone else disposed of the Paintings; Plaintiffs merely allege that the Paintings were sold in Germany after Flechtheim’s flight. Flechtheim apparently never returned to Germany, dying in London in 1937.

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Book of the Day: Arbitration of Intellectual Property Disputes in the United States

Arbitration of IP Disputes in the United States

I’m happy to announce the publication of Arbitration of Intellectual Property Disputes in the United States, by Thomas D. Halket, David L. Evans, and yours truly. The book is published by Juris, and it’s available at the Juris website in print and PDF editions. It’s a companion volume to Arbitration of International Intellectual Property Disputes, which Tom edited and to which David and I contributed a chapter on conflict of laws.
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Case of the Day: In re Application of Ruiz

The case of the day is In re Application of Ruiz (S.D.N.Y. 2018). In 2017, European and Spanish banking regulators sold Banco Popular Español, a bank they thought failing, to Banco Santander for € 1. Investors in Banco Popular then sued in the EU’s Court of Justice, and some of them also brought investor-state arbitrations against Spain under the Mexico/Spain BIT. Finally, some of the investors sought to join Spanish criminal proceedings against Banco Popular and its former managers. The investors applied to the court under § 1782 for leave to take discovery of Santander (including the Spanish bank itself, which had a US branch, and some US subsidiaries) for use in the foreign proceedings. Although the judge framed the issue as whether the investors had satisfied the first statutory element under § 1782—the requirement that the target “reside” or be “found” in the district—in fact the real issue, in the judge’s view, was constitutional. Would the exercise of jurisdiction over Banco Santander S.A. (the Spanish entity) or Santander Bank N.A. (a national banking association with its headquarters in Delaware) consistent with due process? The court held that discovery from both entities was improper (though it did allow discovery from another US-based Santander entity—an issue I don’t discuss here). (more…)

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Belfast Project: High Court Rejects McIntyre’s Motion for an Injunction

The High Court in Northern Ireland has denied Anthony McIntyre’s motion for an injunction regarding the use of his Belfast Project interview. The Belfast Project case was the first case to which I devoted extended attention at Letters Blogatory. It’s been a while, so let me set the scene a bit.

The First Case

Ed Moloney was the director of the Belfast Project, an oral history project at Boston College that aimed to collect oral histories from participants in “the Troubles,” the conflict between Catholics and Protestants, loyalists and republicans, in Northern Ireland in the second half of the twentieth century. One of his researchers was Anthony McIntyre, himself a former member of the IRA who served time for murder in a British prison. Boston College had an agreement with Moloney that required each person interviewed to be given a contract “guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period if it becomes necessary.” The donation agreements between the interviewees and BC, however, did not contain the reference to the limitations of American law:

Access to the tapes and transcripts shall be restricted until after my death except in those cases where I have provided prior written approval for their use following consultation with the Burns Librarian, Boston College. Due to the sensitivity of content, the ultimate power of release shall rest with me. After my death the Burns Librarian of Boston College may exercise such power exclusively.

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Israeli Supreme Court Overrules Government In Alqasem Case

The Israeli Supreme Court has overturned the government’s decision to refuse permission to enter the country to Lara Alqasem, a Palestinian American and a former advocate for the BDS movement. Alqasem had traveled to Israel on a student visa to begin studies at Hebrew University, and she said she no longer supported BDS. She was stopped at Ben Gurion Airport and would have been sent home immediately, but she sought a hearing and a stay, and she has now prevailed. (more…)

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Case of the Day: Leutheusser-Schnarrenberger v. Kogan

The case of the day is Leutheusser-Schnarrenberger v. Kogan (N.D. Cal. 2018). Dan Shefet, the president of the Association for Accountability and Internet Democracy, a French group, and Sabine Leurheusser-Schnarrenberger, the former German minister of justice, sought leave to serve a subpoena on Aleksandr Kogan under § 1782. Both Leutheusser-Schnarrenberger and Shefet had Facebook accounts. Kogan, also known as Aleksandr Spectre, was supposed to be the principal of Global Science Research Ltd., a British firm that had allegedly made a plan “to obtain massive amounts of personal data from Facebook and use it to create psychological ‘profiles’ using, for example, people’s highly personal factors such as their romantic traits inter-related to ‘the predictions their romantic partners, family members, and friends make about their traits.'” (more…)

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Case of the Day: Overstock.com v. Visocky

The case of the day is Overstock.com, Inc. v. Visocky, (E.D. Va. 2018). Overstock sued Viktor Visocky, Otto Srams, Olga Korischenko, Alexander Bekoev, and others for trademark and copyright infringement, violations of the Computer Fraud and Abuse Act, etc. Korischenko and Bekoev were in Russia, and Visocky and Srams in Latvia. Overstock sought and received leave to serve these defendants by email. The opinion does not say, one way or the other, whether their addresses were known, although the motion for leave suggests without saying outright that in fact their addresses were unknown. Both Russia and Latvia are parties to the Hague Service Convention. Russia has objected to service by alternate means. Latvia has made a limited objection to service by postal channels that reads:

[T]he Republic of Latvia does not object to the freedom to send a judicial document, by postal channels, directly to an addressee within the Republic of Latvia (paragraph (a) of Article 10) if the document to be served is in Latvian or it is accompanied by translation into Latvian and it is sent to the addressee using a registered postal letter (with an acknowledgement of receipt).

Overstock sought a default judgment and the magistrate judge recommended that the court grant it. (The court adopted this portion of the report without discussion, so this post focuses on the report and recommendation rather than the court’s final decision). (more…)

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The ALI

Some personal news to report: I have been elected a member of the American Law Institute. For foreign readers, the ALI is "the leading independent organization in the United States…

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Trump: Immorality, Degradation, Cynicism, Humiliation

I’ve stopped writing about President Trump. How many times can one say that he’s unfit for office? But this latest story, the story of journalist Jamal Khashoggi, is so awful. A Washington Post journalist enters the Saudi consulate in Istanbul and doesn’t come out. The Saudi government says he left and that they don’t know where his is. But wait! Turkish intelligence shows that he was killed in the consulate. But wait! He wasn’t just killed, he was killed and dismembered. But wait! He wasn’t just killed and dismembered, he was killed, dismembered, and tortured in the presence of the consul general. But wait! He wasn’t just killed, dismembered, and tortured in the presence of the consul general, he was tortured and dismembered while still alive, and then killed. But wait! The “top Saudi doctor of forensics” brought in to supervise the dismembering told the agents, as they “cut off Mr. Khashoggi’s head and dismembered his body,” to put on their headphones and listen to some music “to ease the tension when doing such work.” The story is a bottomless pit of immorality and degradation. (more…)

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