Wednesday, August 16, 2017

Case of the Day: Doskocil Mfg. Co. v. Nguyen, 2017 Tex. App. LEXIS 5961 (Tex. Ct. App. 2d Dist. June 29, 2017)


Plaintiff sued the defendant, pet-products manufacturer and her former employer. Plaintiff alleges that she got throat cancer and had surgery to remove her teeth and a part of her tongue as a result of working as a pet-toy assembler. The employment contract provided for an arbitration in case of a dispute. Plaintiff moved to set aside the agreement, claiming she did not understand English as she only spoke Vietnamese. Trial court granted the motion.

On appeal, the court vacated the trial court's order. The appellate court found that the inability to understand English is not a contract-formation defense, as long as the plaintiff was a mentally competent adult.


The only surprise in this case is that the trial court initially found for the plaintiff. In an employment context, and especially in a jurisdiction like Texas, it is exceedingly difficult for recent immigrants to get the court to make allowances for the challenges they face.

Monday, August 14, 2017

Case of the Day: Bd. of Trs. of the Leland Stanford Junior Univ. v. Chinese Univ. of Hong Kong, 2017 U.S. App. LEXIS 11382 (Fed. Cir. June 27, 2017)


A Stanford professor and a Chinese University professor separately developed a new method for diagnosing fetal conditions involving abnormal number of chromosomes (such as Down's Syndrome.) The Stanford professor filed patent first, then the CUHK professor filed later. Then the Stanford professor claimed that his earlier patent included the concept included the patent that the CUHK professor filed. The Patent Trial and Appeal Board ruled in favor of the CUHK professor. The case was initially appealed to the U.S. District Court for the Northern District of California, in which parties conducted extensive discovery. But pursuant to the intervening of case of Biogen MA, Inc. v. Japanese Found. for Cancer Research, 785 F.3d 648 (Fed. Cir. 2015), the case was transferred to the Federal Circuit.

The Federal Circuit first held that Biogen was correctly decided, and the discovery material cannot be used for consideration because, pursuant to Biogen, the District Court never had subject matter jurisdiction. Reviewing the PTAB decision de novo, the court vacated and remanded, finding that the PTAB failed to specifically explain its decision.


The civil procedure of the Federal Circuit is always fascinating. One implication of this case is that, in a situation similar to this one, the parties may never have the chance to conduct extensive discovery, since they are skipping the District Court entirely.

Saturday, August 12, 2017

Media Appearance: "US - North Korea Tensions: War of Words Escalates" on France 24

I was on television this past Thursday, to talk about the impending nuclear doom.

US - North Korea Tensions: War of Words Escalates [France 24]

I disagree strongly with Eric Schlosser that North Korea is being irrational. Irresponsible? Most definitely. But everyone seriously needs to disabuse themselves the notion that Kim Jong-un is some kind of a madman whose actions are beyond comprehension. Schlosser's idea that North Korea had made themselves a target of the United States by developing nuclear weapons is backwards; the North Korean regime has always been a target, which is why it developed nuclear weapons to ensure its survival. No serious North Korea analyst disagrees with the proposition that Kim Jong-un is acting rationally, although the analysts may disagree as to what Kim Jong-un's endgame is.

One under-appreciated point is how much China is hating the fact that North Korea is developing nuclear weapons. China wants nothing more than stability in Northeast Asia, and North Korea's nuclear weapons invite instability. In my earlier article on the Atlantic, I discussed how South Korea may be able to find an opening in this regard. Over the long term, I believe China will come to value South Korea more than North Korea.

For my part, I am betting that nothing significant is likely to happen. But it would be far more preferable if we were not in a situation in which we had to bet on the possibility of a nuclear war.

Tuesday, August 8, 2017

Case of the Day: Yi v. Berryhill, 2017 U.S. Dist. LEXIS 94065 (W.D. Wash. June 19, 2017)


Plaintiff challenged the decision regarding her Social Security payment. Plaintiff claimed she suffers from disability by affective disorder, resulting from the stress caused by her husband leaving her for another woman. Plaintiff claimed that cultural factors exacerbated her stress due to her Korean background. In the proceedings below, the administrative law judge rejected the plaintiff's claim of disability. The ALJ did not give any weight to the medical opinion on how cultural factors could exacerbate stressors, as he found them to be transient, personal life situations.

The court affirmed, finding that there were conflicting medical opinions as to the severity of the plaintiff's symptoms, and the ALJ was entitled to give greater credibility to one set of medical opinions over another.


Even as a Korean American, I have "eye roll" moments when I come across a certain kind of "cultural" arguments. Glad to see that the court rejected this, shall we say, adventurous claim.

Friday, August 4, 2017

Milestones: Choo v. Exxon Corp., 486 U.S. 140 (1988)


A Singaporean national was killed in an accident while repairing a ship owned ultimately by Exxon Corporation. Widow of the decedent, also a Singaporean national, sued Exxon in the U.S. District Court for the Southern District of Texas. The federal court dismissed based on forum non conveniens. The widow then sued again in the Texas state court, based on causes of action under Texas law. Exxon petitioned the federal court to issue an anti-suit injunction against the widow. The district court issued the injunction, and the 5th Circuit affirmed.

On appeal, the unanimous Supreme Court reversed. The majority opinion by Sandra Day O'Connor held that the federal court violated the Anti-Injunction Act, which prohibits the federal court from interfering with state court proceedings. Although the Anti-Injunction Act contains a "re-litigation" exception, the court held that the exception only applies if the district court had considered the issues on the merits. Because the district court's decision based on forum non conveniens did not consider the merits, the state court action did not fall under the re-litigation exception.


A fairly straightforward decision, but I am more curious about how this opinion changed (or didn't change) the district court's use of forum non conveniens dismissal. If the defendant wants to avoid multiple litigation in the United States, the defendant would be better off not making a forum non conveniens claim--but it does not appear that the use of forum non conveniens has decreased.

Wednesday, August 2, 2017

Academic Corner: Recognition and Enforcement of Foreign Provisional Orders in the United States

After nearly two years of editing process, my first academic article is officially published. Recognition and Enforcement of Foreign Provisional Orders in the United States: Toward a Practical Solution is now available on the website of the University of Pennsylvania Journal of International Law.

The main thrust of the article is straightforward: just as much as there is a mechanism through which the United States enforces the final judgments rendered by foreign courts, there needs to be a mechanism to do the same with provisional orders by foreign courts, such as orders attaching money, because there is no such mechanism currently other than certain specific areas of the law (discussed further below.) Although the article goes through the reasons why this is necessary, I would think this is not a particularly controversial argument. Much of the reason why this has not yet happened inertia rather than an active opposition from any country.

One thing I learned in the process of writing this paper was that, in fact, there are already mechanisms that allow enforcement of provisional orders where the need seems urgent. For example, there are bilateral or multilateral treaties that allow enforcement of provisional orders in the case of drug crimes or securities fraud. See, e.g., U.N. Convention Against the Illicit Traffic in Narcotic Drugs and Psychotic Substances art. 7, 28 I.L.M. 492 (1989); Treaty on Mutual Assistance in Criminal Matters Between the United States and Switzerland, U.S.-Switz., May 23, 1973, 27 U.S.T. 2019; MOU Between the United States and Switzerland, U.S.-Switz., Aug. 31, 1978, 43 SEC Docket 14; Agreement XVI of the Swiss Bankers’ Association with Regard to the Handling of Requests for Information from the SEC on the Subject of Misuse of Insider Information, U.S.-Switz., July 14, 1982, 43 SEC Docket 155. 

In the civil litigation front, there is a long string of family court decisions that allow enforcement of foreign provisional orders, which are usually orders providing for alimony payments. Pacanins v. Pacanins, 650 So. 2d 1028 (Fla. Dist. Ct. App. 1995) (holding that a Venezuelan court order should be enforced in the U.S.). See also Cardenas v. Solis, 570 So. 2d 996 (Fla. Dist. Ct. App. 1990); Nahar v. Nahar, 656 So. 2d 225 (Fla. Dist. Ct. App. 1995); Wolff v. Wolff, 389 A.2d 413 (Md. Ct. Spec. App. 1978); Yoder v. Yoder, 330 A.2d 825 (Conn. Super. Ct. 1974) (providing more examples of various state courts recognizing foreign provisional orders).

The last part got me interested in international family law, which apparently is the only area of civil litigation in which there is a routine enforcement of provisional orders. It appears that international family law faces the same, difficult questions that face any international litigation involving millions of dollars, and handles them with relative ease. Why can't every international civil litigation be run like international family law litigation? That will be the topic for one of my next papers.

Tuesday, August 1, 2017

Ongoing Case Update: Apple Inc. v. Samsung Elecs. Co., 2017 U.S. Dist. LEXIS 119149 (N.D. Cal. July 28, 2017)


This blog covered this case previously in this post.

In the underlying suit, Samsung advanced an "article of manufacture" theory, which states that a patented design is not necessarily applied to the entire product that is sold, and thus profits from the entire product should not always be awarded. (This is distinct from "apportionment" theory, which states that the patentee must show what portion of the infringer's profit was due to the patented design and what portion was due to the article itself.) The Supreme Court approved the "article of manufacture" theory in Samsung Elecs. Co. v. Apple Inc., 136 S.Ct. 1453 (2016). Accordingly, Samsung requested a new trial as to the "article of manufacture" issue. Apple opposed, arguing Samsung did not preserve the issue for a retrial.

The court granted new trial, finding that the jury instruction in the underlying action prejudiced Samsung as to the "article of manufacture" theory. The court found that Samsung properly objected to the jury instruction, which was inconsistent with the Supreme Court's decision. The court then invited further briefing as to a number of legal questions, including the test for identifying the article of manufacture, whether such an identification is a question of law or fact, burden of proof, etc.


We are breaking new grounds with each step of this litigation. Although the Supreme Court endorsed the "article of manufacture" theory, it punted to the lower courts the task of formulating the legal task for applying the theory. Bears watching for all IP practitioners.