Friday, June 23, 2017

Case of the Day: Thomas v. Takeda Pharms. U.S., Inc., 2017 U.S. Dist. LEXIS 76721 (E.D. Cal. May 19, 2017)

Summary:

Plaintiff sued a Japanese medical equipment manufacturer for a malfunction that allegedly damaged her kidneys. Plaintiff attempted to serve the defendant by serving the defendant's subsidiary in Illinois, and also by sending the summons and complaint via FedEx to Japan.

The court found that the service of process was insufficient under California law. California Code of Civil Procedure does allow service of process on a parent corporation by serving the subsidiary if the subsidiary is the "general manager" of the parent. But the court found that the plaintiff did not sufficiently describe the corporate relationship between the Japanese parent and the Illinois subsidiary.

Takeaway:

California's "general manager" rule is rather adventurous--a potential counter-point to Litigation Isolationism. But it is interesting that the court is requiring a more rigorous set of facts. In such a case, would a court a pre-merits discovery (like jurisdictional discovery) to see if a service on subsidiary is valid?

Thursday, June 22, 2017

Case of the Day: Katsiaficas v. U.S. CIA, 2017 U.S. Dist. LEXIS 75392 (D. Mass. May 17, 2017)

Summary:

Plaintiff is a professor who filed a Freedom of Information Act (FOIA) request to the Central Intelligence Agency for documents regarding former South Korean dictator Park Chung-hee. After the CIA produced a small number of documents, plaintiff further challenged the adequecy of CIA's production. CIA filed for summary judgment.

Court granted the summary judgment, finding that CIA made a good faith effort to conduct a search for the requested records using methods which can be reasonably expected to produce the information requested. The court also found that CIA appropriately withheld documents designated specifically by executive orders.

Takeaway:

The wide variety of cases that have to do with Asia never fails to surprise me. Initially I expected mostly trade disputes and perhaps product liability suits, but random gems like this makes my day. FOIA summary judgment standard! I bet not too many attorneys are familiar with that one.

Tuesday, June 20, 2017

Case of the Day: Lee v. Rusu, 2017 U.S. Dist. LEXIS 94126 (N.D. Cal. June 19, 2017)

Summary:

[Note: on Lexis, the case is captioned as Mi v. Serban Rusu, which is incorrect. Plaintiff's name is Mi Sook Lee, with Lee being the surname.]

Korean couple who temporarily resided in San Francisco planned to purchase a valuable Tommaso Balestrieri violin for their daughter from the daughter's violin teacher for $500,000. After making several installments of payments totaling in $270,000, the daughter decided not to become a violinist. Plaintiffs allege the defendants--the violin teacher and his wife--initially promised to give a refund, then backed out of that promise. Defendants moved to dismiss.

The court denied the motion to dismiss. Despite some inconsistency in the complaint, the court found that the complaint met the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. The court also found that the statute of limitations has not run, and the plaintiffs stated a claim for rescission of contract and novation.

Takeaway:

I am married to a concert violinist, and we had our share of pain while dealing valuable musical instruments. Most people do not realize how expensive musical instruments can be, and how little transparency there is in the musical instrument market. It is yet another less-recognized area of U.S.-Asia interaction, considering how many young Asians grow up to be top-tier classical musicians who study and and work in the United States.

The factual situation is a mess, and unfortunately fairly typical: massive amount of money changes hands with no written contract spelling out the terms. It is also striking how poor the lawyering is in the case. The court subtly points out the many inconsistencies in the complaint, which should have been caught in the drafting stage.

Tuesday, June 13, 2017

Milestones: Japanese War Notes Claimants Asso v. United States, 373 F.2d 356 (U.S. Claims Ct. 1967)

Summary:

Plaintiff, a corporation of Philippines, held counterfeit Japanese war notes during World War II. The Allied Forces issued the counterfeit notes to support U.S. intelligence agents and the Filipino resistance movements. At the time of the court's decision in 1967, the war notes were worth slightly less than ten billion dollars (!!!!) if the notes were redeemed in full with interest. Plaintiffs filed suit in 1958 to seek redemption of the counterfeit war notes.

The court found the six-year statute of limitations has run. The court found that the claim accrued in 1945, when Imperial Japan's occupation of the Philippines ended. The court then found that ignorance of the claim did not toll the statute of limitations.

Takeaway:

Here's a piece of World War II history that is not commonly known. Imagine if the United States had to pay ten billion dollars (in the late 1960s!) as a result of this litigation. Yet one cannot escape the sense that the Filipinos who fought alongside the US soldiers against Imperial Japan deserves something better than the dry analysis of statute of limitations.

Friday, June 9, 2017

Case of the Day: Waymo LLC v. Uber Techs., 2017 U.S. Dist. LEXIS 88411 (N.D. Cal. June 8, 2017)

Summary:

Plaintiff Waymo sued Uber for stealing intellectual property regarding driverless vehicle technology. Specifically, plaintiff claimed that a former Waymo employee took confidential documents from Waymo and founded his own company called Ottomotto. Later, Uber acquired Ottomotto. But before the acquisition transaction closed, Uber and Ottomotto, through their attorneys, jointly retained an outside expert to interview Ottomotto employees who previously worked for Waymo as a part of due diligence. Plaintiff Waymo moved to compel production of the report produced by the outside expert.

The court granted the motion. The court first found that individual employees at Ottomotto had no attorney-client privilege with the expert, as the expert was retained by the corporations Uber and Ottomotto and not directly by individuals. The court also found Uber had no attorney-client privilege, as Uber and Ottomotto were on opposite sides of a transaction. Further, the common interest between Uber and Ottomotto did not create an attorney-client privilege, as common interest/joint defense doctrine is not an independent source of privilege.

Takeaway:

Admittedly, this case does not have much to do with Asia. (I'm sure both Waymo and Uber both have a lot of Asian shareholders, however.) But you don't see a case like this every day--the perfect sample of a common situation, an ideal archetype that belongs in a case book.

If you're a white collar defense practitioner (like I am,) or an M&A/deals attorney, you would read this case very closely and commit the holding to memory. It is extremely common for a successor firm to be sued for the (alleged) sins of the firm that it acquired--which means managing attorney-client privilege throughout the deal structuring is critical. It is also extremely common for two companies to jointly engage a single expert to investigate a potentially problematic transaction that involved both firms, and destroy the attorney client privilege in the process. This case could have had a different result if Uber's deal counsel anticipated litigation and retained the expert on its own, rather than jointly with Ottomotto.

Tuesday, June 6, 2017

Ongoing Case Highlight: In re Sygenta Mass Tort Actions, 2017 U.S. Dist. LEXIS 73612 (S.D. Ill. May 15, 2017)

Summary:

This case is related to In re Sygenta AG MIR162 Corn Litigation, previously discussed in this blog in this post, but the plaintiffs and the theory of the damages are different. Plaintiffs in this case are corn farmers who did not purchase Sygenta's GMO corn. They claim that China's rejection of Sygenta's genetically modified corn caused a general decline in the price of American corn, causing damage.

The court denied the motion to dismiss. The court found that Illinois had jurisdiction over Sygenta, and there was no federal law preemption over the plaintiffs' claim. The court also found that Illinois's "economic loss doctrine"--which generally holds that a plaintiff cannot recover solely economic damages under tort theories--did not bar the plaintiffs' claim. Finally, the court held "policy considerations" outweigh the concerns over the defendant's forseeability of damages, and found the defendant did owe a duty to corn farmers generally.

Takeaway:

Another fugue in the trippy world of GMO products! I am not entirely familiar with the area of mass torts involving agricultural products, but I find this ruling quite surprising. Under this theory, a producer with a market share large enough to affect the price of a product owes a duty to all producers of the same product. If this theory holds, imagine the possibilities.

Friday, June 2, 2017

Case of the Day: Johnson v. Marriott Int'l, 2017 U.S. Dist. LEXIS 72283 (W.D. Wash. May 11, 2017)

Summary:

Plaintiff was an American who tripped and injured herself at the Marriott hotel in Bangkok, Thailand. In the resulting personal injury suit, defendant Marriott International averred that the hotel was owned and operated by a company organized and existing under the laws of Thailand. Defendant moved to dismiss based on forum non conveniens.

The court denied the motion. The court found that the plaintiff may be able to add the Thai company and assert a plausible theory of jurisdiction, such as an alter ego theory or general or specific jurisdiction. The court also found that the plaintiff may be able to allege additional causes of action against the defendant, such as apparent agency. 

Takeaway:

Attorneys who represent plaintiffs frequently will want to flag this case, as it is a rare example of a U.S. court bucking the trend of litigation isolationism. In most cases, the court would have found that it would not have jurisdiction over the Thai company that operated the hotel and dismissed the case.