Thursday, September 20, 2018

Case of the Day: Packard v. City of New York, 2018 U.S. Dist. LEXIS 101618 (S.D.N.Y. June 18, 2018)

Summary:

Defendant City of New York moved to compel the plaintiff, who previously lived in New York but now resides in Taiwan, to appear in New York for a deposition. The plaintiff cross-moved to allow for deposition by video conference.

The court granted the cross-motion for video conference. The court first noted Taiwan was not a signatory to the Hague Evidence Convention, but the plaintiff may contact the U.S. State Department to conduct the deposition in Taiwan for a fee.

Takeaway:

It is always worth remembering--Taiwan is not a signatory to any of the Hague Conventions! That Taiwan is an advanced economy does not change this fact. This is also the first time I learned that the fees for conducting deposition through the State Department are somewhat hefty.  (Approximately $1200 in one-time fee and $300 per hour for the facilities.)

Tuesday, September 18, 2018

Case of the Day: United States v. Abarca, 2018 U.S. Dist. LEXIS 101671 (S.D. Cal. June 15, 2018)

Summary:

Defendant was accused of entering the United States illegally through a caravan carrying 18 persons crossing the U.S.-Mexico border. Defendant claimed that there was selective prosecution based on national origin, as only five persons from Mexico and Central America were prosecuted while others, which included three Indian nationals, were not prosecuted.

The court dismissed the claim. The court found the defendants, who had the burden to overcome the presumption that a prosecutor has not violated equal protection, failed to demonstrate the prosecution treated similarly situated persons differently. The court first found the defendants had to draw from the overall pattern of prosecution, rather than the prosecution of the specific caravan on which the defendants were on board. The court further found the defendants failed to establish the discriminatory motive, noting many Central Americans in different occasions were not prosecuted either. The court then denied the defendants' request for discovery.

Takeaway:

Only tangentially related to Asia, but figured this was a good case to discuss in the current times when illegal immigration is the topic of the day. This case reminds me of Ashcroft v. Iqbal, 556 U.S. 662 (2009), the case from the previous round of heightened national security concerns. Like Iqbal, the defendants here face an impossible challenge: find a way to collect information from the government, whose discriminatory intent--at least at the top level--appears fairly clear.

Wednesday, August 29, 2018

Case of the Day: Pearce v. Mizuho Bank, 2018 U.S. Dist. LEXIS 146005 (E.D. Pa. Aug. 27, 2018)

Summary:

Plaintiff was a bitcoin investor with Mt. Gox, previously one of the world's most prominent bitcoin exchanges. On behalf of those similarly situation, plaintiff sued Mt. Gox's president and Mizuho Bank, the exclusive processor of all bank deposits and withdrawals made by Mt. Gox during relevant time period. Plaintiff alleged that, in an attempt to pressure Mt. Gox into severing the banking relationship, Mizuho made it difficult for Mt. Gox's customers located abroad to withdraw funds from Mt. Gox accounts, which eventually led to Mt. Gox's bankruptcy.

The court granted Mizuho's motion to dismiss based on lack of personal jurisdiction. The court found there was no purposeful availment of the Pennsylvania forum, as refusing to do business with a customer in Pennsylvania is not an activity, but an absence of activity.

Takeaway:

This is the correct result: despite the valiant attempt to flip the negative to the affirmative, there is no specific jurisdiction when the defendant didn't do something in the forum. It is also ironic to see traders in bitcoin--something that was intended to transcend artifices like countries and borders--are being stymied by a classic application of the territoriality principle.

Monday, August 27, 2018

Case of the Day: Intercontinental Indus. Corp. v. Wuhan State Owned Indus. Holdings Co., 2018 U.S. App. LEXIS 15782 (9th Cir. June 12, 2018)

Summary:

Plaintiff is a U.S. corporation that purchased a tool-making factory in Wuhan, China, and expanded the factory by acquiring new land and built additional facilities. Plaintiff claimed the defendant demanded an additional investment of $10 million, withdrew $21 million from the factory's bank account before freezing the account, and expelled the American managers from the facilities. The district court found it lacked subject matter jurisdiction, because of foreign sovereign immunity.

The Ninth Circuit affirmed. The court found the defendant's actions were not "an act performed in the United States in connection with a commercial activity of the foreign state elsewhere[,]" as provided in the exceptions in the Foreign Sovereign Immunity Act. 

Takeaway:

Short opinion, and fairly indisputable in terms of legal doctrine. But the case is a sobering one, as this type of straightforward thuggery against foreign investors is not uncommon in China. With the U.S. courts unable to provide a remedy, what can a plaintiff in this situation do, other than to simply not do any business with Chinese state-owned entities (which are a major part of the Chinese economy)?

Friday, August 24, 2018

Case of the Day: Hardy Exploration & Prod. (India) v. Gov't of India, 2018 U.S. Dist. LEXIS 95965 (D.D.C. June 7, 2018)

Summary:

Petitioner is a hydrocarbon extraction company that had a contract with the government of India to explore and extract petroleum and natural gas off the southeastern coast of India. The contract provided the petitioner had two years to assess the commercial viability of a discovered deposit if the deposit was petroleum, and five years if the deposit was natural gas. The petitioner then discovered a deposit that it claimed to be natural gas; India claimed it to be petroleum. After the two year assessment period, India claimed the petitioner lost the right the deposit. The petitioner filed arbitration. The tribunal found in favor of the petitioner, ordering India to award back the right to the deposit. The petitioner then sought to confirm the award with the federal court in the District of Columbia.

The court denied the motion to confirm, noting that the tribunal order was a specific performance, and it is contrary to the public policy of the United States to compel specific performance from the foreign sovereign.

Takeaway:

A very rare case in which the court refuses to confirm an arbitral award! It is very important for litigators to remember that enforceability is everything. With the court refusing to recognize this award, it is not clear if the petitioner will be able to get any relief after all they have gone through.

Wednesday, August 22, 2018

Case of the Day: Rockefeller Tech. Invs. Asia VII v. Changzhou Sinotype Tech. Co., 2018 Cal. App. LEXIS 515 (Cal. App. Ct. June 1, 2018)

Summary:

Judgment creditor held a default judgment in excess of $414 million against a judgment debtor located in China. The judgment debtor moved to set aside the judgment based on inter alia improper service that did not follow the terms of the Hague Service Convention. The lower court found the service was proper, because although the service did not follow the terms of the Convention, the parties alternatively agreed to accept service by mail.

The appellate court reversed, finding that parties may not contract around the requirements of the Hague Service Convention.

Takeaway:

Simple lesson, but massively consequential point: you cannot contract around the Hague Service Convention!

Monday, August 20, 2018

Ongoing Case Update: Zhang v. Chinese Anti-Cult World Alliance, 2018 U.S. Dist. LEXIS 90107 (E.D.N.Y. May 30, 2018)

Summary:

This is a continuation of the case previously discussed in this post. Plaintiffs are New York residents who are practitioners of Falun Gong. Defendant organization is a New York non-profit whose mission is to expose Falun Gong as "an evil and dangerous threat to society." In addition to circulating pamphlets denouncing Falun Gong, members of the defendant organization allegedly engaged in harassment and altercation with the plaintiffs. Among other claims, plaintiffs claimed damages pursuant to Freedom of Access to Clinic Entrances Act (18 U.S.C. s. 248), which protects access to a place of religious worship. The defendants then challenged the constitutionality of FACEA, arguing the law exceeds the authority given to Congress under the Commerce Clause.

While the court noted that the constitutionality of FACEA was not obvious because it was enacted shortly before the U.S. Supreme Court significantly shifted its Commerce Clause analysis, the court nonetheless found FACEA constitutional as "[p]laces of religious worship can be areas of commerce." The court then certified this question for an interlocutory appeal.

Takeaway:

In the early 20th century, it was the Jehovah's Witnesses who led the fight for religious freedom in the United States. In the 21st century, it's Falun Gong and its right to criticize the Chinese government. This opinion is from late May, but there is even greater urgency to this question as we are learning that the Chinese government likely have put more than a million Muslims in concentration camps. What a time we live in.