Cert. Watch: Kiobel v. Cravath

I’m keeping an eye on the new cert. petition in Kiobel v. Cravath, Swaine & Moore LLP. This was the case where a plaintiff had sought to use § 1782 to obtain documents from its opponent’s (Royal Dutch Shell’s) US law firm (Cravath) that had previously been produced, for use in US litigation, subject to a protective order. She sought the documents for use in Dutch litigation. The district court had allowed the application, but the Second Circuit reversed, holding that the lower court had abused its discretion. As I highlighted in my prior post, the key to the Second Circuit’s decision (which I criticized) seems to be that the Dutch court might not treat the documents as confidential and that Shell, Cravath’s client, might be deprived of the benefits of the protective order—there was also an issue about the role of discoverability under the foreign law under § 1782. This seems poorly reasoned to me for reasons I gave in the prior post. And it is pretty unusual, maybe unprecedented, for a court of appeals to hold that a decision granting a § 1782 application was an abuse of discretion (decisions holding that a lower court erred in granting an application because the statute was not applicable are common). (more…)

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Case of the Day: Davis v. Zhou Liang

The case of the day is Davis v. Zhou Liang (W.D. Wash. 2018). Michael Davis was a passenger on a bus in Washington and was injured in an accident in which Zhou Liang, a resident of China, allegedly was at fault. According to an earlier order, Davis first sued Liang in the state court, and Liang defended the case through counsel, seeking dismissal on grounds of insufficient service of process. Davis had tried to serve process via the Chinese central authority, but it had rejected his requests “due to being ‘incomplete in one way or another.'” Davis then voluntarily dismissed the action and brought a second action in the federal court. Davis send a request for waiver of service to Liang’s US counsel, but Liang refused to waive service. More than ninety days after commencement of the action, Davis sent the papers to the Chinese central authority for service, and some months later, the Central Authority acknowledged receipt orally and told Davis that the documents were “on the way to the Defendant,” though the Central Authority later “rescinded its acknowledgment of receipt.” Davis unsuccessfully sought entry of default judgment under Article 15 of the Convention. (more…)

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Case of the Day: Nike v. Wu

The case of the day is Nike, Inc. v. Wu (S.D.N.Y. 2018). Nike and Converse, the shoe companies, brought trademark infringement cases against hundreds of online retailers. These actions resulted in a default judgment for $1.8 billion, which perhaps will not turn out to be worth the paper it was printed on. The companies assigned their judgment to Next Investments, LLC. Next Investments caused subpoenas to be issued to Agricultural Bank of China, Bank of China, Bank of Communications, China Construction Bank, China Merchants Bank, and Industrial and Commercial Bank of China, seeking information on the judgment debtors’ assets. It’s not clear from the decision how the subpoenas were served, but presumably they were served on the New York branch offices of the Chinese banks, and in any case the banks raised no challenge to the service. The banks’ main claims were that the court lacked personal jurisdiction and that in light of Chinese bank secrecy laws, Next Investments should have been required to make first resort to the Hague Evidence Convention. The magistrate judge denied the banks’ motion to quash, and the banks sought review of the order. (more…)

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Read more about the article Case of the Day: Prumyslovy v. Kozeny
Letters Blogatory wishes all its readers a happy Thanksgiving Day! Credit: Stedelijk Museum De Lakenhal

Case of the Day: Prumyslovy v. Kozeny

The case of the day is Harvardsky Prumyslovy Holding, A.S. v. Kozeny (N.Y. App. Div. 2018). I like the terse style of New York appellate division decisions, but it makes the facts hard to decipher. Prumyslovy had a Czech judgment against Kozeny, and Kozeny moved the dismiss when Prumyslovy sought recognition and enforcement. The court held that Kozeny had waived the defense of lack of jurisdiction for procedural reasons, but its alternative holding was more interesting. (more…)

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Case of the Day: Baek v. Radish Media

The case of the day is Baek v. Radish Media, Inc. (C.D. Cal. 2018). Radish “provides a meeting place for fiction readers seeking unique content and writers with fresh voices on human issues looking to reach people outside of the traditional publishing house model.” I’m not sure what this means, but it sounds a bit like the Manutius publishing house from Foucault’s Pendulum. Anyway, Paul Baek sued Seung Yoon Lee, a South Korean resident, who was the CEO of Radish, apparently for wrongful termination, though the claim isn’t entirely clear. Baek brought his claim in the California state court. Baek served process by mailing the summons to Radish’s office in New York. The defendants then removed the case to federal court, and Lee moved to dismiss for insufficient service of process. (more…)

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Read more about the article Lago Agrio: Second Chance for Steven Donziger
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Lago Agrio: Second Chance for Steven Donziger

Steven Donziger has been given a second chance to save his law license. John R. Horan, the referee who will be conducting the next hearing in the New York bar’s disciplinary case against Steven Donziger has decided that Donziger should be allowed to challenge the factual basis on which Judge Kaplan found that he had committed fraud. The is the best news Donziger has had in a while, and it creates the possibility that a US court will eventually disagree with Judge Kaplan’s findings of fact.

The decision seems erroneous to me. As I understand it, the court has already determined that Donziger violated the rules of professional conduct, and the purpose of the upcoming hearing is to determine the sanction. It seems very odd to say that the findings to which the court gave preclusive effect as to liability should not have preclusive effect as to the sanction, and surely it is not open to the referee to make findings of fact that differ from the findings the court has already reached in the same proceeding. This point is independent of the point about whether Judge Kaplan’s findings of fact should be entitled to preclusive effect, but even if that were the question, I think there is a pretty strong case for applying the doctrine of collateral estoppel. But all that said, even if the referee’s decision is erroneous as a matter of law, I don’t see that it really prejudices anyone (Donziger is temporarily suspended from the practice of law, so no clients or potential clients will be prejudiced), and all else being equal, the more opportunity an accused lawyer is given to make his case, the better. (more…)

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Case of the Day: Amazon v. Glenn

The case of the day is Amazon, Inc. v. Glenn (W.D. Wash. 2018). It’s an odd case. Amazon won an arbitration award against Thomas Glenn, who resided in the Dominican Republic. It sought to confirm the award. The clerk “mailed the petition to Respondent’s address in the Dominican Republic, in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Article 10(a).” Glenn defaulted, and the court entered judgment. What could be simpler? (more…)

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Case of the Day: Halvorssen v. Simpson

The case of the day is Halvorssen v.Simpson (E.D.N.Y. 2018). Thor Halvorssen, a human rights advocate, claimed that after he criticized Derwick Associates, a Venezuelan power company, for corruption, Derwick hired Fusion GPS, the intelligence firm made famous for its connection with the Steele Dossier, to do a number on him. The claim was brought under the civil RICO statute. Halvorssen sought leave to serve three Venezuelan defendants, Leopoldo Betancourt-Lopez, Pedro Trebbau-Lopez, and Francisco Convit-Guruceaga, by service on their US lawyers. (more…)

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