Wednesday, October 17, 2018

Case of the Day: En Pointe Techs. Sales, LLC v. Ovex Techs. (Private) Ltd., 2018 U.S. Dist. LEXIS 141065 (C.D. Cal. Aug. 17, 2018)

Summary:

Plaintiff En Pointe is a Delaware corporation operating in California. Defendant Ovex is a Pakistani corporation operating in Islamabad, which previously contracted to provide service to plaintiff. The service agreement provided that dispute in relation to the contract is to be resolved through a JAMS arbitration in California. A dispute arose, and Ovex sued En Pointe in Pakistan. En Pointe filed the JAMS arbitration, and also petitioned the District Court to issue an anti-suit injunction, which the court granted. Ovex did not appear for either the injunction hearing or the JAMS arbitration; instead, Ovex's sole shareholder filed additional suits against En Pointe and its officers in Pakistan, and sought to hold En Pointe in contempt in Pakistian. Plaintiff then moved to hold the defendant in contempt in the District Court.

The court granted the contempt motion. Finding the defendant in violation of the anti-suit injunction, the court issued a fine of $1,000 per day for each day the defendant failed to comply with the injunction, and awarded attorneys' fees for En Pointe.

Takeaway:

Fireworks! Rarely do you see such a head-to-head fight between the courts of two countries. It does not appear to be a good way out of this conflict other than to some type of business arrangement.



Friday, October 12, 2018

Case of the Day: Li v. U.S. Citizenship & Immigration Servs., 2018 U.S. Dist. LEXIS 137558 (D.N.J. Aug. 14, 2018)

Summary:

Plaintiff is the head of a Chinese TV station's US division who sought to begin the TV station's North American branch. The plaintiff came to the US on an L-1A visa (i.e. visa for foreign employees of a multinational firm), which was approved in May 2013 for eight months stay. Because the plaintiff needed more than eight months to do her work, she applied for an extension. The approval did not come until February 2015, and the extension only lasted until May 2015. Because this extension was not long enough, the TV station filed an I-485 application. The USCIS denied the applications, on the grounds that the plaintiff did not maintain continuous employment authorization from 2015 (because she did not have the L-1A visa.) Plaintiff sued USCIS. The USCIS moved to dismiss, claiming lack of subject matter jurisdiction.

The court denied the motion to dismiss. While the parties agreed that the Immigration and Naturalization Act divested the court's jurisdiction for an action based on the I-485 application decision, the court found the INA did not divest jurisdiction for an action based on the L-1A visa decision, as the visa is a non-immigration visa.

Takeaway:

It is good to see the court asserting jurisdiction over this absurd case. USCIS always has been a ridiculous bureaucracy and the court has deferred to it too often. In this instance, USCIS made the maximalist argument that it "may" grant an extension of up to two years, which the judge slapped down as it "defies common sense as an argument in this situation."


Tuesday, October 9, 2018

Case of the Day: United States v. Lamborghini Aventador LP700-4, 2018 U.S. Dist. LEXIS 133880 (E.D. Cal. Aug. 8, 2018)

Summary:

Plaintiff United States filed an in rem civil forfeiture action against numerous pieces of property, including luxury vehicles, bank accounts, real properties and cryptocurrencies belonging to several individuals and entities affiliated with AlphaBay, the "eBay-style underworld marketplace." The forfeiture is connected with the criminal indictment issued against Alexandre Cazes, a Canadian citizen who was operating AlphaBay.

The court issued a default judgment as to the properties. The court found the complaint sufficiently alleged personal and subject matter jurisdiction, and there was sufficient notice through US government website and mail.

Takeaway:

Many, many interesting aspects in this case. First of all, I always love case captions for an in rem action where it looks like the defendant is a piece of property. (Who's the lawyer for the Lamborghini?) But the substance of the case is even more interesting. AlphaBay is one of the largest "dark web" marketplaces, and Cazes was residing in Thailand when he was arrested. (He committed suicide eight days after the arrest, while being under Thai police custody.) The US court did not only feel comfortable ordering arrest of a Canadian citizen residing in Thailand; it also felt comfortable ordering the seizure of real estate located in Thailand. (How will the US court enforce its order if the real estate is under encumbrance?) 

Further, although AlphaBay had many transactions in cryptocurrency which is supposed to be untraceable, the US government had no trouble seizing the cryptocurrency belonging to Cazes and his affiliates. I always tell my clients that the supposedly "untraceability" of cryptocurrency is greatly overrated, and this is another case in point. It doesn't matter how well the transaction itself is encrypted, as long as there is an actual person sitting at the end of the transaction.

Friday, October 5, 2018

Case of the Day: Okinawa Dugong v. Mattis, 2018 U.S. Dist. LEXIS 130130 (N.D. Cal. Aug. 1, 2018)

Summary:

Plaintiffs, a collection environmental non-profit organizations, sued the Secretary of Defense over the planned naval base in Okinawa, Japan. Pursuant to Section 402 of the National Historic Preservation Act, plaintiffs claimed the naval base plan failed to adequately take into account the adverse impact on Dugongs in Okinawa, an endangered species. After discovery, each party cross-moved for summary judgment.

The court granted the summary judgment in favor of the defendant. The court found that, although the defendants failed to consult directly with the plaintiffs, the plaintiffs did not take the opportunity available to consult with the defendants as well. The court also held the Secretary could rely on the notice and comment process in the Japanese government's environmental impact studies to satisfy the requirements for a public comment.

Takeaway:

Always fascinating to see the interaction of the US law with the US military presence abroad. The idea that US Department of Defense could essentially outsource the environmental impact studies to the Japanese government is interesting.

Tuesday, October 2, 2018

Media Appearance: "After 65 years of 'armistice,' it's about time to end the Korean War" on CNN

Together with Frank Aum, here is my latest for CNN. We advocate for an end-of-war declaration for the Korean War:
All diplomatic negotiations involve a give and take. North Korea certainly didn't agree to denuclearize unilaterally while receiving nothing in return. But in agreeing to an end of war declaration, the United States would not be giving up much: It would merely recognize the reality that, as a practical matter, the war has been over for decades. However, the declaration is potentially a game changer for the Kim regime, which fears for its survival and foreign encroachments on its sovereignty. The formal expression of the end of the "hostile" US policy, as Pyongyang sees it, may help Kim neutralize the hardliners within his regime, creating greater flexibility to take further steps toward denuclearization. As a nonbinding political measure, a declaration would not require lengthy, complicated negotiations like a peace treaty. Most importantly, it gives forward momentum to the negotiations, allowing the bicycle to stay upright, as diplomats like to say.

Friday, September 28, 2018

Case of the Day: United States v. Pepe, 895 F.3d 679 (9th Cir. 2018)

Summary:

Defendant was arrested in Cambodia for sexually abusing minor children, and was convicted of violating 18 U.S.C. s. 2423(c), which prohibits engaging in illicit sexual conduct in foreign places. Defendant challenged the constitutionality of s. 2423 (c), which applied to a US citizen "who travels in foreign commerce". In a previous case, the Ninth Circuit held that the illegal conduct did not have to occur while traveling, and it was sufficient that the person traveled and then committed the illegal conduct. See United States v. Clark, 435 F.3d 1100, 1107 (9th Cir. 2006).

In 2013, however, Congress amended s. 2423(c) to say "who travels in foreign commerce or resides . . . in a foreign country". Based on the addition in the statutory language, the court held that the statute would not apply to the defendant if he took residence in Cambodia rather than was traveling in the country. Accordingly, the court vacated the conviction and remanded.

Takeaway:

This appears to be the correct result, although the consequences can be difficult to stomach. It's an object lesson for the legislature to draft the statute with more care.

Wednesday, September 26, 2018

Case of the Day: Freeplay Music, LLC v. Nian Infosolutions Private Ltd., 2018 U.S. Dist. LEXIS 115659 (S.D.N.Y. July 10, 2018)

Summary:

Plaintiff Freeplay is an online music library that charges license fee for using the music in its library. Defendant, an Indian corporation, operates a news website focusing on Bollywood entertainment news. Plaintiff alleged the defendant made unauthorized use of its music. The defendant failed to appear before the court, and the plaintiff moved for a default judgment.

The magistrate judge castigated the plaintiff for not responding properly to the order to show cause why the suit should not be based on the lack of personal jurisdiction. However, the court nonetheless found New York could exercise long arm personal jurisdiction over the defendant, as the defendant was alleged to have committed tort against a New York copyright holder.

Takeaway:

Any time a New York court is willing to exercise its long arm jurisdiction over a foreign party, it is news. Even more so when the court acts in the context of a default judgment, going entirely by the plaintiff's allegations of fact.