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USS Cole after the attack. Credit: Sgt. Don L. Maes, USMC

Case of the Day: Sudan v. Harrison

The case of the day is Republic of Sudan v. Harrison (S. Ct. 2019). I’ve covered the case several times before; my post on the Second Circuit’s decision on Sudan’s petition for a rehearing was my most recent substantive look, and guest author Jared Hubbard reported more recently on the oral argument.

The case arose out of the bombing of the USS Cole. Several sailors and their families sued the Republic of Sudan in the US District Court for the District of Columbia, alleging that Sudan had provided material report to al Qaeda, which had taken responsibility for the attack. The action ended with a $314 million default judgment against Sudan. The plaintiffs registered the judgment in the Southern District of New York and sought to enforce it. The court in New York entered several turnover orders, and Sudan appealed, arguing, among other things, that the judgment was void because it had not been validly served with process. (more…)

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The Carta Arbitral

I was at a talk last week at which I heard about a new procedural mechanism in Brazil that I hadn’t heard of before: the carta arbitral (the “arbitral letter”). The purpose of the arbitral letter is to give the tribunal a means of requesting assistance from a court in carrying out its orders (for example, orders for preliminary relief, or discovery orders). The device is innovative insofar as it provides only very limited grounds for refusing to comply with the letter. (more…)

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Case of the Day: AIS v. Thoratec

The case of the day is AIS GmbH Aachen Innovative Solutions v. Thoratec LLC (9th Cir. 2019). AIS and Abiomed Europe GmbH sought leave to take discovery under § 1782 in aid of a patent infringement case Abiomed had brought against Thoratec in Germany involving heart pumps. A magistrate judge granted the application and ordered Thoratec to produce three samples of its heart pump. Thoratec objected to the magistrate judge’s decision, but the date for compliance came before the district judge had made a decision on the objection, so Thoratec also petitioned for a writ of mandamus, and the Ninth Circuit issued a temporary stay. The district judge then overruled the objection, and Thratec appealed. In today’s decision, the court affirmed. (more…)

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Private International Arbitration And § 1782: Are We Nearer To A Reckoning?

In In re Application and Petition of Hanwei Guo (S.D.N.Y. 2019), the court, following the Second Circuit’s precedent in National Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999), held that a private international arbitral tribunal was not a “tribunal” for purposes of § 1782, and thus it denied an application for leave to serve a subpoena. In NBC, the Second Circuit reasoned that the text of the statute itself was ambiguous but that the legislative history showed that Congress intended the statute to reach public international arbitrations but not private arbitrations. The court rejected the argument that Intel, the leading Supreme Court decision from 2004, had overruled the Second Circuit’s precedent, noting that Intel’s citation to Hans Smit’s commentary, which included arbitral tribunals in the scope of the statute’s reach, was merely a dictum. (The judge’s description of Smit’s article as a “secondary source” is correct but maybe a little unfair, as Smit drafted the statute!) (more…)

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Case of the Day: Castro v. Tri-Marine Fish

The case of the day is Castro v. Tri-Marine Fish Co. (9th Cir. 2019). Michael Castro, a national of the Philippines who lived in American Samoa, was a deck hand aboard the F/V Captain Vincent Gann. He was seriously injured during the voyage. Tri-Marine transported him to the Philippines and paid his medical expenses and maintenance. There was a dispute about whether Castro had signed an employment agreement containing an agreement to arbitrate before the voyage. In any case, while he was recovering from the injury, he found he needed money to pay for a relative’s medical care. So he negotiated a settlement of his own claims with Tri-Marine in return for a cash payment. He signed the settlement papers. There was a dispute of fact about whether he knew or was told what they said or that they contained a release. Castro’s testimony was that he was told that he would go to another office to “pick up the settlement check and execute paperwork acknowledging receipt.” Tri-Marine’s representative, Rhodylyn De Torres, testified she told Castro that she explained the documents to him, that he said he understood, and that “an arbitrator would review and approve the release documents ‘to make the settlement legal and binding.'” (more…)

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Case of the Day: In re JR

The case of the day is In re JR (Tex. Ct. App. 2019). The Texas Department of Family and Protective Services sought to terminate the parental rights of a father over his child in Texas. The father resided in Mexico. His address was unknown, so the court authorized “service by posting,” which is what Texas calls notification au parquet. The summons, apparently, is “posted” at the courthouse. The case went to trial, and the father moved for a directed verdict on the grounds that he had not been properly served with trial. At some point, the Department uncovered the father’s address in Mexico, though it’s not really clear when that happened. The court denied the motion and ruled against the father on the merits, and he appealed. (more…)

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Case of the Day: Barer v. Knight Brothers

The case of the day is Barer v. Knight Brothers LLC, 2019 SCC 13. Knight Brothers, a Utah company, sued David Barer, who resided in Quebec, and two companies, CBC and BEC, that Barer allegedly controlled. The claim was that BEC had breached a contract with Knight and that Barer was liable for fraudulent misrepresentation and on a veil-piercing claim. Knight brought the case in the Utah state courts. Barer moved to dismiss, arguing that the claim should be dismissed for failure to state a claim and that the Utah court lacked personal jurisdiction over him. The Utah court denied the motion, and Knight then obtained a default judgment. Knight sought recognition and enforcement in Quebec. The Superior Court granted the motion on the grounds that Knight had submitted to the jurisdiction of the Utah court, and the Quebec Court of Appeal affirmed. Barer then appealed to the Supreme Court of Canada. (more…)

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Case of the Day: Jam v. International Finance Corp.

The case of the day is Jam v. International Finance Corp. (S. Ct. 2019). I wrote about the lower court decision back in June 2017. The claim was that the IFC, an international organization headquartered in Washington, had made loans to an Indian power company for construction of a coal-fired power plant in Gujarat, but that it had negligently failed to supervise the project. Local farmers and fishermen, and a local village, sued IFC in Washington on common law tort theories. The IFC moved to dismiss on the grounds that it was immune from suit under the International Organizations Immunities Act. The District Court and the D.C. Circuit held that IFC was indeed immune from suit, and the plaintiffs sought review in the Supreme Court. (more…)

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