Thursday, September 12, 2019

Case of the Day: Islamic Republic of Pakistan v. Arnold & Porter Kaye Scholer LLP, 2019 U.S. Dist. LEXIS 61780 (D.D.C. Apr. 10, 2019)

Summary:

The government of Pakistan petitioned to take discovery of a DC-based international law firm pursuant to 28 U.S.C. s. 1782, in order to obtain materials relevant to the corruption investigation of one of the law firm's clients, a Turkish company operating in Pakistan. In addition to the investigation, the Turkish corporation was involved in an investor-state arbitration against the government of Pakistan. The Turkish company resisted document production, the government lost the arbitration, and the government filed for annulment. The defendant law firm opposed, arguing the investigation was a bad faith, political harassment campaign.

The court largely rejected the defendant law firm's arguments. The court found the investor-state arbitration was sufficient grounds for 1782 discovery, and declined weigh the propriety of the Pakistani investigation. The court denied the request for production of the materials that the defendant claimed to not have, but ordered the defendant to respond to interrogatories asking where the materials are located.

Takeaway:

What's remarkable is how this case is not all that different from any other 1782 discovery litigation, although the defendant is a law firm. There may be additional background that does not appear on the face of this opinion, but the law firm never attempted to raise any point about attorney client privilege.

Thursday, September 5, 2019

Case of the Day: Cho v. Kim, 2019 Tex. App. LEXIS 2603 (Tex. App. Apr. 2, 2019)

Summary:

A group of Korean American investors sued one another over a failed joint investment project, which was a shopping center. The plaintiff sued for inter alia breach of fiduciary duty, lost, and appealed. The plaintiff-appellant claimed an informal fiduciary relationship existed, because Houston's Korean American community was tight-knit and Korea's hierarchical culture created an unusually close relationship based on trust.

The appellate court rejected the argument, noting "particularly in the business arena, trust and reliance alone are not sufficient ingredients to create a fiduciary relationship."

Takeaway:

Well, that was a creative argument. As a Korean American myself, I'd say it was quite a bit of reach to claim the Korean culture creates a fiduciary relationship among business partners. But as Wayne Gretzky said, you miss 100 percent of the shots you don't take.

Wednesday, August 28, 2019

Case of the Day: Vista Peak Ventures v. Giantplus Tech. Co., 2019 U.S. Dist. LEXIS 144941 (E.D. Tex. Aug. 27, 2019)

Summary:

Plaintiff served a Taiwanese defendant by mail with a registered mail, return receipt requested. Defendant moved to dismiss based on defective service, arguing Taiwanese law prohibits service by mailing a summons directly to the defendant.

The court rejected the argument, finding that Taiwanese law does not prohibit service of process by mail. The court also found that "mail received" stamp sufficed as a signature.

Takeaway:

Taiwan always presents a tricky case because it is not a signatory to the Hague Convention. This decision seems a bit aggressive, but it certainly makes service of process in Taiwan easier.

Friday, August 23, 2019

Case of the Day: James v. Ifinex, Inc., Case No. 450545/2019 (N.Y. Sup. Ct. Aug. 19, 2019)

Summary:

Defendants are Bitfinex and Tether, major cryptocurrency companies based in Hong Kong and other parts of Asia. New York attorney general investigated them for potential violation of the Martin Act, and the defendants challenged the personal and subject matter jurisdiction, as they consciously avoided New York contact in order to avoid being subject to such investigations.

The court rejected the defendants' arguments. The court found the defendants had sufficient New York contacts, as they allowed New York customers to access trading platform, opened accounts in New York bank and had an executive based in New York. The court also held Martin Act was applicable to the defendants, and documents located abroad were subject to discovery.

Takeaway:

We are back from vacation!

The opinion is available here. The opinion itself is not surprising or radical--it is a standard application of the personal jurisdiction doctrine and Martin Act coverage. But because digital currency is new and the companies have consciously attempted to avoid New York contact, it makes for a notable news.

Thursday, August 8, 2019

Media Appearance: "The Road Remains Open: Moon Jae-in's Berlin Speech as a Pathway to Peace" on GlobalAsia

This is a piece based on my presentation at the Yonsei University earlier this year:
But if the conclusion is that no deal for denuclearization is possible with North Korea, the only remaining options are a military conflict or continuation of the status quo. Neither is acceptable, because it invites a realistic risk of a nuclear war either in the immediate term (on the Korean Peninsula) or in the longer term (through North Korea’s nuclear proliferation). At any rate, the Hanoi summit showed that there indeed is a deal to be had if it can be agreed that the only realistic way forward is for both the US and North Korea to climb down from their maximalist positions and engage in a step-by-step exchange of denuclearization and sanctions relief. The trust-building process that the Berlin speech outlined with North Korea remains the best path forward, if only because all other paths lead to a blind alley.
The Road Remains Open: Moon Jae-in's Berlin Speech as a Pathway to Peace [GlobalAsia]

This paragraph basically sums up my thoughts on North Korea: if we accept that a nuclear war is not an option, we cannot stop diplomacy.

Tuesday, July 30, 2019

Case of the Day: Louis Vuitton Malletier v. Baglouisvuitton.Store, 2019 U.S. Dist. LEXIS 78748 (S.D. Fla. Mar. 21, 2019)

Summary:

LVMH, maker of Louis Vuitton bags, sought to serve process on counterfeit bag makers located in China, India, Pakistan, Indonesia, among others and petitioned the court for an alternate means of service. 

The court permitted service by alternate means under Rule 4(f)(3) of the Federal Rules of Civil Procedure, and allowed the petitioner to effectuate service by sending emails and posting on a designated website. 

Takeaway:

Service is becoming more and more of an issue as the global economy is more integrated. With the multilateral treaties slower to function, expect more of these measures that simply circumvent the multilateral structure in the Hague.

Thursday, July 25, 2019

Media Appearance: "The United States is Going After China's Banks" on Foreign Policy

I promise we will soon return to our regularly scheduled programming about litigating Asia-related cases before US courts! But with so much of Asia being in the news all the time, there is a constant demand for media articles. 

At any rate, here is a very important article that I wrote with my colleagues Wade Weems and Beau Barnes.
[T]he all-tools approach provides new angles of attack by blurring the distinction between different functions of the government: National security is trade is technology controls is financial regulation is law enforcement. . . . The recent Washington court ruling opens a more direct and expedient path and dramatically increases the breadth, reach and potential frequency of using this tool. Under Section 319 of the Patriot Act, it is not necessary to show the company knew it was violating sanctions; any foreign bank could lose its access to U.S. dollar end transactions when its only transgression is refusal to comply with a subpoena.

Two things are worth thinking about:

1. What would be the global financial implications when China's largest banks are cut off from dollar-denominated transactions? Can we even imagine all the secondary consequences falling out from such a measure?

2. What additional "tools" would the US government add? One big item I'm expecting to see is immigration laws--that is, restricting entry or exit of key Chinese nationals. China has been imposing an "exit ban" on several US citizens, and it is entirely possible for US to retaliate in kind.

Neither is a pleasant thing to think about, but such is the world we live in.