Friday, December 15, 2017

Case of the Day: SMP Ltd. v. SunEdison, Inc. (In re SunEdison, Inc.), 2017 Bankr. LEXIS 3555 (Bankr. S.D.N.Y. Oct. 13, 2017)

Summary:

Plaintiff SMP Ltd. is a Korean corporation that was established as a joint venture between SunEdison's Singapore affiliate and Samsung Fine Chemicals. In connection with the joint venture, SunEdison and SMP entered into a supply and licensing agreement whereby SunEdison granted license to SMP to use certain technology. In April 2016, SunEdison filed for bankruptcy in the Southern District of New York. SMP shut down nearly simultaneously, and entered into bankruptcy in Korea. As a part of the New York bankruptcy, SunEdison sought to terminate the agreement; SMP objected, arguing the executory contract remains valid during bankruptcy under Korean law.

The court first noted the parties chose New York law as the governing law. The court also rejected SMP's comity-based argument, noting it would mean "giv[ing] extraterritorial effect to all of the Korean insolvency law."

Takeaway:

Along with international family law cases, cross-border insolvency cases are a pet favorite of mine. Look at all the complex private international law principles at play here, for a fact pattern that is rather common in international business. Ultimately, however, the parties' choice of law remains supreme, and Samsung perhaps should have considered whether Korean law would have been more advantageous for its joint venture in case of an insolvency event.


Wednesday, December 13, 2017

Milestones: Zicherman v. Korean Air Lines Co., 516 U.S. 217 (1996)

Summary:

Plaintiffs are family members of a decedent who died aboard the defendant airline's flight, which was shot down in the Soviet air space as it was traveling from Anchorage, Alaska to Seoul, Korea. In the proceedings below, the plaintiffs won the claim for loss of society (among other claims.) Korean Air Lines argued that the Death on the High Seas Act (DOHSA) limited the recoverable damages, and also did not permit damages for loss of society. The Second Circuit found that the general maritime law (but not DOHSA) provided the substantive law of compensatory damages to be applied in an action under the Warsaw Convention, which governs the liability and damages for international flights.

The Supreme Court found that the national law determines what is a compensable harm under the Warsaw Convention. The court, however, found DOHSA was the applicable law rather than general maritime law.

Takeaway:

Another fascinating airlines case. This one arises from one of the tragedies of the Cold War era, when a Korean Air Lines flight strayed into the Soviet airspace and was shot down. This was a huge news at the time, not the least because one of the casualties was a U.S. Congressman.

Sunday, December 3, 2017

Case of the Day: Hong Kong Entm't (Overseas) Invs. Ltd. v. US CIS, 2017 U.S. Dist. LEXIS 163956 (D.N.M.I. Oct. 1, 2017)

Summary:

Plaintiff is a casino operator in Northern Mariana Islands who petitioned the U.S. Citizenship and Immigration Service for a permit to hire foreign workers. The USCIS denied the petition, primarily on the grounds that the plaintiff engages in prostitution. Plaintiff filed a case challenging the administrative denial.

The court dismissed for lack of standing. As a threshold matter, because Congress mandated the gradual reduction of foreign transitional workers, the plaintiff could no longer hire the types of workers it sought to hire even if it prevailed. The court also found that the reputational harm arising from the decision was not actionable.

Takeaway:

DNMI! How often do you see that at the end of the citation? Usually Asia is in the U.S. courts because Asia is coming to the United States, but sometimes, the United States comes to Asia in the form of U.S.'s Asian territories.

Saturday, December 2, 2017

Media Appearance: "Cryptocurrency Clamp Down May Encourage Regulatory Arbitrage" on the Investor

My recent speaking engagement at the Inside Fintech Conference in Seoul got some media coverage:
Nathan Park, lawyer at US litigation boutique firm Kobre & Kim, stressed the importance of considering cryptocurrency regulations for all major markets with all players going forward. “The way to navigate the global regulatory scheme is to be aware of the regulatory structure in all the major markets where the company will be represented,” Park said. 

This is a very important point in understanding digital currency regulation. The naive initial assumption about the digital currency was that it was beyond national regulation, because it is so easy for those engaged in the digital currency business to move onto a different country. But the actually emerging picture is each country going beyond their national borders to assert regulatory jurisdiction. Rather than being freed from the national regulation, those engaged in the digital currency business are in fact subject to even more national regulations, depending on the level of business they attract from different corners of the world.

Wednesday, November 29, 2017

Case of the Day: Jiqin Yang v. Air China, 2017 U.S. Dist. LEXIS 158507 (N.D. Ill. Sept. 27, 2017)

Summary:

Plaintiff's 70-year-old mother collapsed and died on the jet bridge as she was disembarking from an Air China plane that had just landed in Beijing, China after having left from Boston, Massachusetts. Plaintiff claims her mother died from tripping and falling as she stepped off the plane, because the door sill was slippery and there was a height gap between the plane and the jet bridge. Plaintiff produced an expert witness who testified that, based on the position of the body of the decedent, the decedent must have died in this manner. Defendants moved to strike the expert opinion, claiming his methods were too speculative and he did not rigorously rule out other possibilities. For her part, the plaintiff also moved to strike the defendants' expert witness and moved for summary judgment.

The court struck the plaintiff's expert opinion in part. The court held the plaintiff's expert could not conclusively establish where the decedent fell--that is, between the plane and the jet bridge or on the jet bridge itself--because the expert was a doctor rather than an expert in airplane design. However, the court did not strike the expert opinion that the decedent died from a head trauma from the fall rather than from a heart attack. The court then granted summary judgment in favor of defendant Boeing, because except for the expert opinion (which is now struck in part,) the plaintiff presented no evidence that the mechanical issues with the plane caused the alleged fall. The court also granted summary judgment in favor of defendant Air China, as plaintiff had no other evidence that the operation of the airplane or the jet bridge caused the decedent's fall.

Takeaway:

As a litigator, I love cases that are literally the game of inches. The decedent either died on the jet bridge from a heart attack, or a few inches behind between the plane and the jet bridge after having fallen from a height gap. Especially in the context of personal injuries happening on an airplane, it appears that minutiae are everything.

Monday, November 27, 2017

Happy Thanksgiving!

Happy belated Thanksgiving to everyone! It's been a crazy rush lately, with yours truly working on several projects in addition to putting on this Thanksgiving spread, all made from scratch:


Regular blogging will resume next week.

Friday, November 17, 2017

Ongoing Case Alert: In re Packaged Seafood Prods. Antitrust Litig., 2017 U.S. Dist. LEXIS 158858 (S.D. Cal. Sept. 26, 2017)

Summary:

Defendants are a number of seafood processors (mostly producers of tuna cans) that include a Korean company (Dongwon Inudstries, which purchased Starkist in 2008.) Plaintiffs allege a conspiracy to fix the prices of packaged seafood throughout the United States. Defendants previously filed a motion to dismiss, which the court granted for the most part. The plaintiffs filed an amended complaint, and the defendants again moved to dismiss. But during the pendency of the motion, several executives for Bumble Bee tuna products pleaded guilty to the charges from the U.S. Department of Justice.

The court denied the motion to dismiss for the most part. The court noted that the defendants are estopped from raising a new argument that they previously did not raise in the first round of the motion to dismiss pursuant to Rule 12(g)(2) of the Federal Rules of Civil Procedure. The court also assessed whether the plaintiffs stated the claim to certify the class pursuant to a number of state laws, and denied the motion to dismiss for the most part. The court also dismissed the claims against Dongwon to the extent such claims were based on conducted prior to 2008.

Takeaway:

Simply because I like to eat, I always find it fascinating to read cases about food companies. Also: did you know that South Korea is the leading country in tuna fishing and processing? And that an all-American brand like Starkist actually is Korean? Tuna fishing in Korea developed as a part and parcel of its shipping industry, which is also world-leading.