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Case of the Day: Miango v. Democratic Republic of Congo

The case of the day is Miango v. Democratic Republic of Congo (D.D.C. 2020). Jacques Miango is a refugee from the Democratic Republic of Congo who lives in Maryland. In 2014, he participated at a protest across the street from the Capella Hotel in Washington. After President Kabila entered the hotel, Miango alleged that DRC security personnel rushed out of the hotel and assaulted the protesters, broke into Miango’s car, and stole his property. Miango sued, and the court entered default judgments against the DRC, President Kabila, and other DRC personnel. The individual defendants moved to vacate the judgment and dismiss the action. The court granted the motion as to Kabila on grounds of head-of-state immunity. The court found that the remaining defendants did not have diplomatic immunity, and so the question was whether they had immunity at common law. (more…)

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Case of the Day: Opati v. Sudan

Here is a guest post from friend of Letters Blogatory Minyao Wang on Opati v. Sudan, the Supreme Court’s latest look at the FSIA. If I can editorialize about his last paragraph for a second: I don’t think that we should encourage Congress to think carefully about retroactivity when putting together a bill to allow COVID-19-related lawsuits against China. I think we should say, “Congress! Stop messing up the law of foreign sovereign immunity! Just leave it alone!”

Earlier this week the Supreme Court unanimously ruled for the plaintiffs in Opati v. Republic of Sudan, holding that a law passed by Congress in 2008 that authorizes punitive damages against foreign governments for supporting terrorism applies to misconduct predating the law.1 This case gave the Court an unusual opportunity to address the interplay of two different American legal rules: sovereign immunity and the presumption against retroactive application of a new law. (more…)

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Unmeritorious Case Of The Day: Missouri v. China

I’m keeping an eye on Missouri v. People’s Republic of China, a case just filed in the Eastern District of Missouri. The claim is against the Chinese government and several ministries and local governments, as well as the Communist Party of China and two institutes whose status is unclear, the Wuhan Institute of Virology and the Chinese Academy of Sciences. For the moment I am going to assume that all of the defendants are either foreign states, political subdivisions of a foreign state, or agencies or instrumentalities of a foreign state, though I’ll discuss the CCP below. The claim is, more or less, that China is responsible for the global pandemic and the harm it has caused in the United States. (more…)

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Case of the Day: Francisco S. v. Aetna

The case of the day is Francisco S. v. Aetna Life Insurance Co. (D. Utah 2020). Francisco S. was an employee of the World Bank. The Bank provided him with health benefits under a self-funded employee benefits plan. Aetna was the third-party administrator. Aetna denied a claim submitted for Francisco’s daughter, and Francisco sued Aetna and the World Bank plan. (more…)

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Cert. Watch: Merlini v. Canada

The First Circuit, in a 3-3 vote, has denied Canada’s petition for a rehearing en banc in Merlini v. Canada, the FSIA case I’ve written about before in which I’m representing the plaintiff. I last wrote about the case in June 2019, when I reported on the First Circuit decision in Merlini’s favor. To recap, this is the case of the clerical worker at Canada’s consulate in Boston who was injured on the job when she tripped over an unsecured cord. We brought a claim under the Massachusetts statute providing that employers who, like the Canadian government, fail to purchase workers’ compensation insurance for their workers, are strictly liable in tort. The First Circuit rejected Canada’s argument that our case was “based on” its policy decision not to comply with local workers’ compensation laws at its foreign consulates but instead to apply its own statutory scheme. It also rejected the US State Department’s argument that our case was “based on” the negligence of the co-worker who failed to secure the cord to the carpet. Instead, the First Circuit said, correctly in my view, that the case was based on “the fact that [Merlini] is an employee who was injured during the course of her employment while her employer failed to possess” the insurance required by law. Once it reached that conclusion, the conclusion that Canada had acted commercially, both because Merlini’s employment was plainly on the “commercial” side of the line and because many private businesses also fail to buy insurance when required, was easy. (more…)

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William Dodge and Ingrid Wuerth on the Assa Case

William S. Dodge and Ingrid Wuerth have published a post at Just Security on United States v. Assa Co., a Second Circuit FSIA case I noted recently. Assa is the case holding that the FSIA does not forbid a court from exercising jurisdiction in rem over property of a foreign sovereign in a civil forfeiture case. (more…)

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Case of the Day: United States v. Assa Co.

The case of the day is United States v. Assa Co. Ltd. (2d Cir. 2019). This is one of several Iran-related FSIA decisions the Second Circuit issued last week. In Assa, the facts were these: Assa Corp. was a New York corporation formed in 1989. Its parent company is Assa Co., Ltd., a Jersey company. The Jersey parent was, in turn, owned by Harter Holdings Ltd., which Bank Melli, an Iranian state-owned bank, purchased in 1993. In 1995, the bank transferred Harter to Davood Shakeri and Fatemeh Aghamiri, but there was a dispute whether the bank continued to control Harter, and thus Assa, after the imposition of sanctions against Iran in 1995.

In 2008, the government brought a civil forfeiture action, seeking forfeiture of all of the interest of Assa and of the Bank in 650 Fifth Avenue Co., which owned the skyscraper at 650 Fifth Ave. in midtown Manhattan. There were several questions in the case, but I will focus on just one: in a civil forfeiture case, where the property is owned by a foreign state or an instrumentality of a foreign state, does the government need to show that jurisdiction exists under the FSIA? (more…)

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Case of the Day: Crystallex v. Venezuela

The CITGO Sign in Kenmore Square
A Boston landmark. Credit: Lunarsurface

The case of the day is Crystallex International Corp. v. Bolivarian Republic of Veneuela (3d Cir. 2019). I last wrote about the case in October 2016. Crystallex, a Canadian company that had invested in a Venezuelan gold mining project, won a $1.2 billion aribtral award against Venezuela after that country nationalized the gold deposits and transferred them to the state-owned oil company, PDVSA. Crystallex won confirmation of the award in Washington and then sought to attach PDVSA’s shares in PDVH, its American subsidiary, which is the ultimate parent of CITGO a Delaware corporation that, according to the court, is “best known for the CITGO sign outside Fenway Park in Boston.” You’ve got that right. PDVSA, and some of its other creditors as amici curiae, argued against the attachment. The district court granted the attachment, and in today’s decision the Third Circuit affirmed. (more…)

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Case of the Day: DNC v. Russian Federation

The case of the day is Democratic National Committee v. Russian Federation (S.D.N.Y. 2019). I’ve written about the case several times before (for instance, these posts on the FSIA issues, this one on serving process on Wikileaks, and this one on serving process on Julian Assange while he was still holed up in the Ecuadoran embassy in London). In today’s post I’m going to deal only with the fate of the claim against Russia itself to avoid unwisely commenting on a current case in my firm; my partners Caroline Polisi, Jeff Alexander, and Chris LaVigne represent George Papadapolous in the case, with help from our excellent associates Shira Feldman and John Dillon. (Congrats on the win, guys!) (more…)

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