Read more about the article Case of the Day: Lamps Plus v. Varela
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Case of the Day: Lamps Plus v. Varela

The case of the day is Lamps Plus, Inc. v. Varela (S. Ct. 2019). A hacker tricked Lamps Plus into disclosing tax information of more than a thousand employees. One of the employees, Frank Varela, was the victim of identity theft when someone using his information filed a fraudulent tax return in his name. Varela sued on behalf of a purported class of similarly situated Lamps Plus employees. Lamps Plus moved to compel arbitration on the grounds that Varela’s employment contract had an arbitration clause. The motion also sought an order requiring Varela to arbitrate his claim on an individual basis rather than a class basis. The District Court granted the motion to compel arbitration but denied the motion to require individual rather than class arbitration, and the Ninth Circuit affirmed. The Ninth Circuit held that the agreement to arbitrate was ambiguous under California law, and it applied the California rule of construction contra proferentem to hold that Varela could arbitrate his claims on behalf of a class. The Supreme Court granted a petition for cert. (more…)

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Conundrum of the Day: The Indictment of Judge Shelley Joseph

Here in Boston, a federal grand jury has just indicted Judge Shelley Joseph, a judge in the Newton District Court, for conspiracy to obstruct justice, obstruction of justice, and obstruction of a federal proceeding. The claim is that during an arraignment in her courtroom for Jose Medina-Perez, who was charged with being a fugitive from justice and narcotics possession, a federal immigration enforcement agent was present to take Medina-Perez into custody under a “warrant of removal,” on the grounds that he had already been found subject to removal from the United States. The judge learned that the agent was present, and she ordered him out of the courtroom and told the clerk to turn off the electronic recording system. She arranged with a court officer to take Medina-Perez out a back way so that he could leave the courthouse without being detained by the agent. (more…)

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Case of the Day: Santos v. LATAM Airlines

The case of the day is Santos v. LATAM Airlines Group S.A. (SDNY 2019). Yolanda Delia Arias Santos, an Ecuadoran, was flying from New York to Guyaquil, Ecuador on LATAM, a Chilean airline. she claimed that on the flight, a flight attendant spilled boiling tea on her. She sued in New York. LATAM moved to dismiss the case on forum non conveniens grounds, arguing that the plaintiff, almost all the witnesses, and the evidence were in Ecuador and that Ecuador was an adequate and more convenient forum. (more…)

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Read more about the article Lago Agrio: Dutch Supreme Court Affirms Decision In BIT Arbitration
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Lago Agrio: Dutch Supreme Court Affirms Decision In BIT Arbitration

The Hoge Raad (the Dutch Supreme Court) has affirmed a lower court’s decision refusing to annul the interim awards in favor of Chevron in its investment treaty arbitration against Ecuador arising out of the Lago Agrio case. I covered one of the interim awards in February 2012, if you can believe that, as well as the first instance judgment on the request for annulment in January 2016 and the decision of the Court of Appeals of the Hague in July 2017. (more…)

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Read more about the article Looming Problem of the Day: In re Application of del Valle Ruiz
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Looming Problem of the Day: In re Application of del Valle Ruiz

The Second Circuit heard oral argument on March 25 in In re Application of Antonio del Valle Ruiz. Del Valle Ruiz was an investor in Banco Popular Español who lost his investment when the EU and the Spanish government put the bank into receivership and sold it for € 1 to Banco Santander. Del Vale Ruiz sought to annul the bank liquidation in the Court of Justice of the EU, and it sought discovery from Santander in New York under § 1782. The court held that Santander (including Banco Santander, S.A., Santander Holdings U.S.A., Inc., and Santander Bank N.A.) was not “found” and did not “reside” in New York, as the statute requires. Del Valle Ruiz appealed. (more…)

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Ecuador Withdraws Asylum, Assange Arrested

Officers of the Metropolitan Police were invited into the Ecuadoran embassy in London yesterday to arrest Julian Assange. I haven’t written much about Mr. Assange here, though I’ve made it clear for a long time that I have little sympathy for him. In some way Assange is like Trump. They both are epic narcissists and people of bad character. They both inspire a kind of derangement among both their supporters and their detractors. My favorite bit of derangement among Assange supporters is the bizarre claim, made by people who should know better, that he has been detained in the Ecuadoran embassy all these years, when in fact he fled to the embassy after becoming a fugitive from justice, leaving his friends on the hook for the bail money they posted so that he could stay in English country houses while fighting his extradition to Sweden on rape charges, and when he has been free to leave anytime he chose.

Sometimes when an odious person takes the public stage you have to grin and bear it because of important commitments—the Nazis in Skokie had to be allowed to march because of our commitment to the First Amendment and the freedom of speech. There was some thought that we might need to take the same approach with Assange. If the government were to charge him with espionage, for example, because he printed the secrets Chelsea Manning stole, how could we distinguish him as a legal matter from actual journalists who printed secrets their sources provided to them? I am happy that the grand jury has not charged Assange with espionage, but instead with conspiring with Manning to steal secrets from the government. The indictment alleges that Assange conspired with Manning and agreed to try to crack a password that on a US government computer. I don’t see any risk to legitimate journalists from such a charge, and so I see no reason to hold my nose and object to the indictment. (more…)

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Case of the Day: Pablo Star v. Welsh Government

The case of the day is Pablo Star, Ltd. v. Welsh Government (S.D.N.Y. 2019). The case involves Wales’s great twentieth-century poet, Dylan Thomas. I almost want to make this post about Thomas’s poems, because I think he is so terrific. Start reading this out loud:

The force that through the green fuse drives the flower
Drives my green age; that blasts the roots of trees
Is my destroyer.
And I am dumb to tell the crooked rose
My youth is bent by the same wintry fever.

Or this:

And death shall have no dominion.
Dead man naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

Or this, from his most famous poem (though my least favorite of the three):

Do not go gentle into that good night,
Old age should burn and rave at close of day;
Rage, rage against the dying of the light

But the case isn’t about Thomas’s poems, but about photographs of the poet. Pablo Star owned the copyright of several photographs, and it claimed that the Welsh government had infringed the copyright. I wrote about the case in March 2016, and I see that in the last post, I referenced the three poems I have quoted here, which I guess is just a way of saying I’m pretty clear in my own mind about my favorite Thomas poems. (more…)

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Case of the Day: Valambhia v. Tanzania

The case of the day is Valambhia v. United Republic of Tanzania (D.D.C. 2019). In 1985, the Tanzanian Ministry of Defense contracted with Transport Equipment Ltd. for tanks, troop carriers, and other military equipment. Tanzania paid the amount due under the contract for a few years through the Bank of Tanzania. In 1989, Transport Equipment entered into a contract with its director, Devram Valambhia, under which Valambhia would receive 45% of the contract revenue, and Tanzania acknowledged that agreement and promised to begin paying Valambhia. At first, Tanzania paid as promised, but it then began litigation in Tanzania aimed at proving that the contracts were unenforceable. The ultimate outcome was a judgment in Valambhia’s favor and even a garnishment order, but the Bank of Tanzania refused to honor it, leading ultimately to a finding that its Governor was in contempt of court. Valambhia died disappointed, and his heirs sought recognition and enforcement of the Tanzanian judgment in Washington. (more…)

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Read more about the article Lago Agrio: Supreme Court of Canada Denies Ecuadorans’ Application for Leave to Appeal
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Lago Agrio: Supreme Court of Canada Denies Ecuadorans’ Application for Leave to Appeal

Yesterday the Supreme Court of Canada denied an application by the Lago Agrio plaintiffs for leave to appeal from the decision of the Ontario Court of Appeal in May 2018, which held that the Lago Agrio plaintiffs cannot reach the assets of Chevron’s indirect subsidiary in Canada to satisfy the judgment against Chevron they obtained in Ecuador.

It’s been a while, so to make sure you are up to speed on the overall dispute, I am going to provide some overall background to the case. The new Canadian developments are toward the end of the post, so feel free to skip ahead if this is all old hat to you.

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