Some Background On The Law Of Presidential Elections

I thought my non-American readers might appreciate a (decidedly non-expert) brief outline of US law on presidential elections, in light of President Trump’s unprecedented suggestion that he might seek to delay the US presidential election—an idea so outlandish that when the presumptive Democratic nominee, Joseph Biden, suggested Trump might try it, provoked outraged claims of scaremongering from the right. Let’s start with the basics: when must the election be held? (more…)

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Editorial: The ABA Should Not Amend Model Rule 1.8(e)

The American Bar Association is contemplating an amendment to Model Rule of Professional Conduct 1.8(e), which today forbids lawyers to “provide financial assistance to a client in connection with pending or contemplated litigation,” with exceptions for advancing “court costs and expenses of litigation” and, in the case of indigent clients, paying “court costs and expenses of litigation” outright. The amendment would make a third exception, in cases where the client is indigent and the lawyer is working pro bono or “through a nonprofit legal services or public interest organization” or a “law school clinical or pro bono program.” Under the new exception, the lawyer “may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses if financial hardship would otherwise prevent the client from instituting or maintaining the proceedings or from withstanding delays that put substantial pressure on the client to settle.” The lawyer may provide such assistance “even if the representation is eligible for fees under a fee-shifting statute.” (more…)

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Read more about the article Case of the Day: ShelterZoom Corp. v. Goroshevsky
Gurung v. Malhotra is Wrongly Decided

Case of the Day: ShelterZoom Corp. v. Goroshevsky

The case of the day is Shelterzoom Corp. v. Goroshevsky (SDNY 2020). It’s the latest in the line of cases I love to hate, stemming ultimately from Gurung v. Malhotra: cases authorizing service of process by email in cases governed by the Hague Service Convention where the defendant is in a country that has objected to service under Article 10. Longtime readers will know this catechism by heart, probably, but just in case, here it is: (more…)

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Case of the Day: In re Gorsoan Ltd.

The case of the day is In re Gorsoan Ltd. (SDNY 2020). Gorsoan, a Cyprus company, and Gazprombank, the Russian bank, sued dozens of defendants, including Janna Bullock, in Cyprus, alleging a $25 million fraud. The Cyprus court issued a worldwide asset freeze injunction and requiring the defendants, including Bullock, to disclose their assets. Bullock did not comply with the order. So in 2013, Gorsoan obtained an order under § 1782 for issuance of a subpoena to Bullock. Although the court granted the application and the Second Circuit affirmed, “Bullock did not produce much, if any, discovery.” The judge, on Gorsoan’s motion, ordered a second deposition under judicial supervision, but at that deposition, Bullock invoked her right against self-incrimination and refused to testify.

In 2018, Gorsoan brought a second § 1782 application seeking leave to serve subpoenas on Zoe Bullock Remmel and Eugenia Bullock, Janna Bullock’s daughters, Zoya Kuznetsova, her mother, and Stuart Sundlun. The court granted the application, and Gorsoan moved to compel. Janna Bullock then moved to intervene, and after leave was granted, she moved to vacate order allowing the discovery and to quash the subpoenas. In January 2020, the court granted the motion to compel and denied the motion to vacate and to quash. 435 F. Supp. 3d 589. (more…)

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Austria’s Interesting Reservation to the Service Convention

Austria ratified the Hague Service Convention a week ago. As Mayela Celis noted at Conflict of Laws, Austria made an interesting reservation at the time of ratification:

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965 shall not apply to the service of documents addressed to the Republic of Austria, including its political subdivisions, its authorities and persons acting on its behalf; such service shall be effected through diplomatic channels.

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A Review of Robin DiAngelo’s White Fragility

The cover of White Fragility

I recently finished Robin DiAngelo’s book, White Fragility. I think it’s one of those books that it’s important to read because it is being so widely discussed. If you haven’t read it, you should.

The basic idea of the book is based on DiAngelo’s experience over many years in facilitating discussions on race and racism mostly for white people. Her key observation, which I think is indisputably true, is that it’s really hard to get white people to talk honestly about race and racism, and when you try, you end up facing “white fragility,” which is what DiAngelo calls the tendency of white people to put their shields up and to become highly defensive when the structural advantages white people have in our society—and the structural disadvantages black people have—come up. DiAingelo uses the word “racism” in a non-standard way, not to mean a belief in black peoples’ inferiority or actions prompted by that belief, but the overall structure of society and the legacy of slavery, both of which lead to structural advantages for white people and disadvantages for black people. So to say that a white participant in one of her discussions groups is a racist is not to attribute bad racial attitudes to him or to her, but just to say that he or she participates in and benefits from a system that is set up to perpetuate unfair racial outcomes. But people who use the word “racism” in its ordinary sense hear the accusation as an accusation of a deep moral failing, which naturally provokes a highly defensive response. (more…)

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Jeanne Huang on Australian Information Commission v. Facebook

Friend of Letters Blogatory Jeanne Huang of the University of Sydney Law School has a report on a recent Australian case on service by email under the Hague Service Convention.

Recently, in Australian Information Commission v. Facebook Inc., [2020] FCA 531, the Federal Court of Australia (‘FCA’) addressed substituted service and the Hague Service Convention in the context of the COVID-19 pandemic. This case is important on whether defendants located in the US can be served by substituted service instead of following the Hague Service Convention. (more…)

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Case of the Day: In re Hanwei Guo

Longtime readers know that one of the big open questions in Section 1782 practice is whether the statute reaches private international arbitrations. Is an arbitration of a typical business dispute a proceeding before a “foreign or international tribunal,” such that an interested person can seek discovery in the United States? The circuits are split, with the pre-Intel decisions (from the Second and Fifth Circuits) holding that the statute does not reach private arbitration, and the post-Intel decisions (from the Fourth and Sixth Circuits) holding that it does. In today’s case, In re Hanwei Guo (2d Cir. 2020), the Second Circuit adhered to its own precedent, setting the stage for a pretty compelling cert. petition in the coming year. (more…)

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Case of the Day: EGI-VSR v. Coderch

The case of the day is EGI-VSR, LLC v. Coderch (11th Cir. 2020). EGI and Juan Carlos Celestino Coderch Mitjans were parties to an arbitration in Chile that resulted in an award granting specific performance of a stock purchase agreement to EGI, which had sought to sell its shares in a Chilean wine company, Viña San Rafael S.A., to Coderch, one of the controlling shareholders. EGI sought recognition and enforcement of the award in Miami. Coderch moved to dismiss on the grounds of insufficient service of process and on the grounds that an award of specific performance could not be confirmed under the Panama Convention. (There were other arguments, too, which I’ll ignore). The court denied the motion and confirmed the award, and on appeal, the Eleventh Circuit affirmed. (more…)

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