Friday, March 16, 2018

Case of the Day: Active Way Int'l Ltd. v. Smith Elec. Vehicles Corp., 2018 U.S. Dist. LEXIS 29764 (N.D. Cal. Feb. 23, 2018)


Judgment debtor Smith Electric Vehicles Corp. contested the motion for preliminary injunction to transfer certain stock and credit bid to the judgment creditor, based on a Missouri judgment which was originally a Hong Kong judgment.

The court granted the motion, rejecting the judgment debtor's argument that the Hong Kong judgment was invalidly obtained, as "Smith presents no case suggesting the Court may look behind the Missouri judgment to the underlying Hong Kong judgment."


This is the correct statement of law, but the true significance of this decision is the implication upon the judgment enforcement strategy. Remember the cardinal lesson: possession is more than half of the battle. Facing a recalcitrant debtor, the best way is to start seizing the assets to smoke out the debtor. In this sense, a foreign judgment often can be more advantageous, because litigating in the United States takes more time and cost. Once converted into a U.S. judgment through recognition, the challenge to the underlying foreign judgment becomes available only at the forum in which the recognition was given--which means executing against properties located in a different jurisdiction becomes quite easy, putting you halfway toward victory.

Tuesday, March 13, 2018

Media Appearance: "How Moon Jae-in's North Korea Policy Differs from His Predecessors" on NK News

Busy times for Korea watchers! Another one from me, this time on NK News examining South Korean president Moon Jae-in's North Korea policy:
It seems timely to consider in greater detail how Moon Jae-in is approaching North Korea. Comparing Moon’s Berlin Speech from July 2017 with Kim Dae-jung’s Berlin Declaration from March 2000, in which the Nobel Prize-winning Kim set forth his “Sunshine Policy,” reveals the ways in which Moon’s basic approach toward North Korea is similar, yet different, from his liberal predecessors.

Moon’s Berlin Speech and Kim’s Berlin Declaration share the same fundamental posture, as both Presidents emphasized a continuous flow of peaceful economic exchange. Both Moon and Kim also declared that they would not seek a regime change for North Korea, and in exchange, demanded North Korea desist military provocations, including the development of nuclear weapons and long-range missiles. But there are two significant differences between Moon’s Berlin Speech and Kim’s Berlin Declaration: namely in the threat of force and sanctions and an emphasis on multilateralism.
How Moon Jae-in's North Korea Policy Differs from His Predecessors [NK News]

Media Appearance: "The Man Behind the North Korea Negotiations" on the Atlantic

One can never assume anything when it comes to Kim Jong Un and Trump, but it would be historic if they did meet. But don't forget who actually set the table where these two leaders would meet.
But no matter what, in many ways, Moon Jae In has already won. Moon’s approval rating has climbed back over 75 percent, making him once again the most popular leader in the free world. He has flipped the script on North Korea’s traditional strategy of “tongmi bongnam,” (“deal with the U.S. and isolate the South”) by making the South the indispensable intermediary. And the fact that Trump’s State Department is understaffed means Seoul’s diplomats will have to take on a greater role. If the announced schedule holds, the inter-Korean summit will happen on April, followed by the U.S.-North Korea summit in May. This puts the Trump administration in the position of following South Korea’s lead.

Trump and Kim may be the ones making headlines, but it was Moon who drove the entire process. In just eight months, he kept China on the sidelines, rebuffed North Korea’s attempt to drive a wedge between South Korea and the United States, pushed North Korea to put denuclearization on the table, and nudged the U.S. to step away from a preventive strike and talk to Pyongyang—to the point that Donald Trump, if he follows through on his pledge, would become the first U.S. president to hold a summit meeting with North Korea.
The Man Behind the North Korea Negotiations [The Atlantic]

Friday, March 9, 2018

Milestones: APL Co. Pte v. UK Aerosols Ltd., 582 F.3d 947 (9th Cir. 2009)


A California company purchased containers of hair products from UK Aerosols, a British which requested a Singaporean shipper APL Co. to transport the products from Turkey to California. Upon arrival, the shipper noticed the container leaked in a hazardous manner, and spent approximately $700,000 in the clean up. The shipper then sued UK Aerosols for breaching the indemnification obligation under the bill of lading. The district court held in APL's favor, rejecting the argument from the defendant that the bill of lading violated the Carriage of Goods by Sea Act (COGSA). The shipper then filed a motion for attorneys' fees, which was also provided for in the bill of lading. The district court rejected this motion, holding COGSA governed the dispute over attorneys' fees and did not provide for attorneys' fees. The district court also alternately denied the motion for attorneys' fees on the grounds that the plaintiff did not give adequate notice under Federal Rules of Civil Procedure 44.1, which requires a notice of planned reliance to a foreign law. Both parties appealed.

The Ninth Circuit first affirmed the district court's opinion on the merits: because UK Aerosols is not a "shipper," COGSA does not apply to it, and at any rate the bill of lading does not violate COGSA. The court then reversed the district court on the Rule 44.1 point, because the Singaporean law did not become an issue until the attorneys' fees became an issue. The court also reversed the district court and held Singaporean law, and not COGSA, was the correct choice of law, because the bill of lading provided Singaporean law governs any issue not "dealt with" in the bill of lading.


Choice of law thrillsville! This case gives a nice guide as to how to draft your choice of law provision to avoid any ambiguity--which triggers the choice of law analysis in the first place. Like an integration clause, include a provision that says "any issue not dealt with in this agreement is governed by [JURISDICTION] law." The point on Rule 44.1 is highly notable as well.

Tuesday, March 6, 2018

Ongoing Case Highlight: Apple, Inc. v. Samsung Elecs. Co., 2018 U.S. Dist. LEXIS 25377 (N.D. Cal. Feb. 15, 2018)


Plaintiff Apple previous prevailed on the claim that defendant Samsung infringed upon its patent. As a result, Apple had a judgment that entitled it to ongoing royalties based on Samsung's sales of the infringing products post-judgment. In the instant action, Apple claimed it was also entitled to royalties for Samsung products that designed around the infringed patent.

The court denied Apple's motion. The court found that the workaround design was not "colorably different," but at any rate, the workaround design did not infringe upon Apple's patent. 


My practice does not include intellectual property, so I found this ruling somewhat confusing. If a new product is not meaningfully different from the old product that infringed a patent, how does the new product not infringe? Also, why is it that the judge decide whether the new product infringes the patent? Isn't it a question of fact to be determined by the jury? Post-judgment world is a strange place in civil procedure.

Friday, March 2, 2018

Case of the Day: Dongkuk Int'l, Inc. v. U.S. Dept. of Justice, 204 F.Supp.3d 18 (D.D.C. 2016)


Plaintiff is a Korean national facing criminal trial in Korean courts for a habitual gambling. To prosecute the plaintiff, the Korean prosecutors sent a Request for Assistance (RFA) letter to the U.S. Department of Justice pursuant to the Mutual Legal Assistance Treaty (MLAT). Plaintiff sought to obtain the RFA letter through the Freedom of Information Act, apparently because the contents of the RFA letter contains information that may affect his sentencing. When the U.S. Department of Justice refused, the plaintiff filed the instant action.

The court denied the action. FOIA Exemption 3 permits an agency to withhold a record that is "specifically exempted from disclosure by statute." The court then determined that MLAT is a "statute" within the meaning of FOIA. Because MLAT provides that RFA letters are to be treated as confidential, the court found the RFA letter cannot be subject to a FOIA request.


Always fun to see the interaction between a treaty and domestic statutes. This decision is notable that it applies Medellin v. Texas, 552 U.S. 491 (2008), which held self-executing treaties are equivalent to domestic statutes.

Monday, February 26, 2018

Media Appearance: "Olympic Thaw: North Korea Welcomed to Pyeongchang Games" on France 24

This aired earlier in the month, but I forgot to put it on the blog. Here is my television appearance, discussing North Korea's participation in the Winter Olympics.

It is interesting to see how the events shook out since I made this appearance. I did not think North Korea's participation in the Olympics alone would really move the needle, and I was largely correct on that. South Koreans were not impressed by North Korea's cheerleaders, and the North Korean envoy--Kim Jong Un's sister Kim Yo Jong--returned to Pyongyang empty-handed. Now North Korea is practically groveling to Seoul to open the peace negotiations, while the Moon Jae-in administration is holding the line with the United States in maintaining the maximal sanctions pressure. In all, a pleasant surprise.