Changzhou SinoType v. Rockefeller: More Developments

Readers, there were two new developments in the Changzhou SinoType case yesterday. First, the Chinese government sent a letter to the Department of Justice expressing its objections to the California court’s decision permitting service by postal channels in China in a case where the Hague Service Convention applied. The letter was dated Sunday. I’d like to give a special shout-out to Rick Simpson of Wiley, who was counsel to the amici curiae and who was willing to handle the mechanics of getting my supplemental brief to the Supreme Court yesterday; I was out of commission for Yom Kippur. Thanks, Rick! (more…)

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Changzhou SinoType v. Rockefeller: Amicus Update

A group of outstanding scholars filed an amicus brief in support of my petition for cert. in Changzhou SinoType v. Rockefeller Technology. The group includes (in alphabetical order) George Bermann (Columbia), Hannah Buxbaum (Indiana), John Coyle (UNC), Robin Effron (Brooklyn), Maggie Gardner (Cornell), David Stewart (Georgetown), and Louise Ellen Teitz (Roger Williams). Andrew Hessick, Richard Simpson, Joseph Gross, and Jared Hubbard were counsel to the amici. (more…)

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Ruth Bader Ginsburg, Internationalist

Ruth Bader GinsburgLots of the praise for the late Justice Ruth Bader Ginsburg, who died this past Friday, is a little bit about the Justice and a bit about the concerns of the writer. Former law clerks who have praised their former boss have reminded everyone of their elite credentials. Advocacy groups have praised Justice Ginsburg for just those views and opinions that line up with their own work. The Jewish world has noted her pride in her Jewish heritage. And so forth. I would like to honor this extraordinary judge in the same way, with a short appreciation of her views on the reasons why judges should consider foreign decisions, not as binding precedent but as persuasive authorities. (more…)

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I Predict a Donziger Victory

Victories have been few and far between for Steven Donziger, and (for reasons I’ve given) probably rightly so. But there is one aspect of the civil contempt finding against Donziger that I’ve previously written was probably wrong. Donziger appealed from that aspect of the contempt finding and argued the appeal pro se this week, and I think he’s right about it. The issue is whether Judge Kaplan, who issued an injunction and letter clarified it, prohibited Donziger from receiving pay from interests in the Lago Agrio judgment that he helped his clients to sell in order to finance their litigation. As I read the record, Judge Kaplan construed his own injunction in such a way that I think Donizger reasonably understood that he could receive those payments, and so I think it’s unfair to hold him in contempt for doing just what Judge Kaplan told him he could do. (more…)

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Improving Rule 4(f)(2)

I’ve occasionally remarked about an odd feature of FRCP 4(f)(2). Rule 4(f)(1) authorizes methods of service that an international convention authorizes (e.g., the central authority mechanism in the Hague Service Convention or the Additional Protocol to the Inter-American Convention). Rule 4(f)(2) authorizes certain other methods of service, but only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” This works great for the Inter-American Convention, because that Convention is non-exclusive. It doesn’t exhaustively list every available method of service, but that’s okay, because it doesn’t forbid any methods of service. In other words, it “allows but does not specify” other methods. But the rule doesn’t fit the Hague Service Convention, which is exclusive. If a method of service isn’t authorized or at least permitted by the Convention, you can’t use it, period. At least that’s how I understand the Schlunk case.

So what to do about alternate methods of service such as service by post? As we know from Water Splash, the Convention doesn’t affirmatively authorize them, so FRCP 4(f)(1) doesn’t apply. It allows them, but it also specifies them, so FRCP 4(f)(2) also seems on its face not to apply, although the courts have mostly ignored the plain language of the rule.

A while back I wrote that I was considering proposing an amendment. Well, here it is. I have proposed to delete the word “specify” in FRCP 4(f)(2) and substitute “itself authorize,” so that the rule would read:

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Case of the Day: TIG Insurance v. Argentina

The case of the day is TIG Insurance Co. v. Republic of Argentina (D.C. Cir. 2020). I last wrote about the case a year ago. Here was my description of the case from the prior post:

TIG had an arbitral award against Argentina and a default judgment confirming the award that, with interest and penalties, was in the amount of $33.66 million. In 2018, Argentina decided to list real property in Washington for sale. The property had previously been used as a diplomatic residence but had fallen into disrepair. TIG moved for writs of attachment and execution, but Argentina immediately thereafter took the property off the market. The question was whether the property had immunity from execution under the FSIA.


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Case of the Day: Anova v. Hong King Group

The case of the day is Anova Applied Electronics, Inc. v. Hong King Group, Ltd., 334 F.R.D. 465 (D. Mass. 2020). Anova, a kitchen appliance manufacturer, sued Hong King, a Chinese firm, and other Chinese companies for trademark and trade dress infringement. It sought leave to serve process by email under FRCP 4(f)(3). (more…)

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