Tuesday, June 19, 2018

Case of the Day: Liberty Woods Int'l v. Motor Vessel Ocean Quartz, 2018 U.S. App. LEXIS 11667 (3d Cir. May 4, 2018)

Summary:

Plaintiff received a shipment of plywood veneer sheets in New Jersey that were damaged during shipment. The bill of lading for the shipment has a forum selection clause designating South Korea as the forum for any dispute. Plaintiff sued instead in the federal court in New Jersey, claiming the forum selection clause violates the Carriage of Goods by Sea Act because South Korea does not allow in rem suit against vessels.

The Third Circuit affirmed the district court's dismissal. The court first found that although COGSA prohibits forum selection clauses that lessen ship liability, the lack of in rem suit is not such a lessening. The court further found that under Korean law, it is possible to obtain security against the vessel in an in personam action, effectively giving an equivalent relief.

Takeaway:

This appears to be the correct result, and consistent with the general trend in the U.S. law that favors forum selection clause, even in situations involving a statute that seems to disfavor one.

Monday, June 18, 2018

Case of the Day: Animal Sci. Prods. v. Hebei Welcome Pharm. Co., 2018 U.S. LEXIS 3684 (June 14, 2018)

Summary:

This case reverses the Second Circuit in In re Vitamin C Antitrust Litigation, which I covered previously in this post. Petitioners are U.S. based purchasers of vitamin C, who alleged Chinese manufacturers of vitamin C engaged in price-fixing in violation of the Sherman Act. The Second Circuit reversed the jury verdict, holding that the case should have been dismissed based on China's submission regarding the interpretation of Chinese laws.

The Supreme Court reversed the Second Circuit's standard of "binding so long as facially reasonable." Instead, it held "a government's expressed view of its own law is ordinarily entitled to substantial but not conclusive weight".

Takeaway:

I welcomed the Second Circuit's ruling in the run-up to this case, so naturally I am a bit disappointed here. I don't think the Supreme Court necessarily got this wrong in relation to Federal Rules of Civil Procedure 44.1, but I believe there was enough room to affirm the Second Circuit's standard.


Friday, June 15, 2018

Case of the Day: B&M Kingstone, LLC v. Mega Int'l Commercial Bank Ltd., 2018 N.Y. Misc. LEXIS 1515 (N.Y. Sup. Ct. Apr. 25, 2018)

Summary:

Plaintiff is a judgment creditor of a Florida state court judgment rendered in 2003, valued $39 million at the time and currently worth $73 million. The judgment debtor, allegedly, owns a property in Panama for which the defendant Taiwanese bank (with a branch in New York) holds the mortgage. The plaintiff previously served deposition subpoenas to the bank, which was quashed. Subsequently, the New York State Department of Financial Services found the bank in violation of anti-money laundering rules. The plaintiff then served subpoenas again. The defendant moved to quash.

The court found that the intervening event of the NY DFS enforcement action was sufficient to establish the defendant may be holding relevant information. The court, however, denied the plaintiff's motion for contempt.

Takeaway:

The lesson here is just how broad the discovery reach is for a judgment creditor. Based on the facts adduced in the opinion, it appears unlikely that the defendant bank is holding any property of the judgment debtor upon which the plaintiff may execute. Yet an intervening government enforcement action is enough to renew the subpoena that was previously denied.

Wednesday, June 13, 2018

Media Appearance: "What Just Happened? Experts Break It Down" on CNN

My quick take on the historic U.S.-North Korea summit:
we have always known no matter what the words on paper said, the actual opening and denuclearizing North Korea would be a matter of execution. The agreement still contains enough to make it a starting point, most significantly by incorporating the Panmunjom Declaration between North and South Korea that was made in the inter-Korean summit in April. Ideally, the next step would be the actual integration of the Singapore Agreement and the Panmunjom Declaration by beginning a trilateral negotiation involving US, South Korea and North Korea, to create a durable system of denuclearization and economic exchange.

I see a lot of angst about how the United States conferred "legitimacy" to North Korea through this summit. Nonsense. "Legitimacy" is not a meaningful concept: North Koreans cannot eat legitimacy, nor can they exchange legitimacy for money. Richard Nixon meeting with Mao Zedong did not make Mao any more legitimate than he was before. The meeting itself is not a reward; what matters is what happens going forward.
 

Monday, June 11, 2018

Ongoing Case Highlight: In re Korean Ramen Antitrust Litig., 2018 U.S. Dist. LEXIS 48606 (N.D. Cal. Mar. 23, 2018)

Summary:

The case involves a class action claim of price fixing conspiracy involving several Korea-based instant ramen companies, some of which had presence in California. Based on a new case In re Hyundai and Kia Fuel Economy Litig., 881 F.3d 679 (9th Cir. 2018), the defendants sought to de-certify the plaintiff class, arguing Hyundai placed the evidentiary burden on the plaintiffs to show common legal issues predominate through the class.

The court denied the motion to decertify. The court found that Hyundai involved multiple states and potential application of multiple state laws, while the case at hand only involved California.

Takeaway:

In the face of the persistent trend to cut back on the ability to bring a class action suit, this is an interesting development that stood against the trend. Also, one Korean company case to be applied in another Korean company case! Goes to show the extent to commerce between South Korea and the United States.

Friday, June 8, 2018

Media Appearance: "A US-North Korea friendship would be perfect bulwark against China" on CNN

On CNN Opinion, I expand my point on how the United States and North Korea can potentially be friends:
In short, North Korea is in serious need of a military and economic counterweight against China -- and the United States can serve in that capacity. True, it is distasteful to be friends with a regime responsible for massive human rights violations. Yet pragmatism is a long-standing tradition in US foreign relations. Just consider that Mao Zedong was on the short list of the history's greatest monsters, but Richard Nixon shook his hand. Pragmatists would look beyond the present conditions and examine how a friendly relationship with North Korea would serve the long-term US national interest. With the rise of China, East Asia is far and away the most important region in the world for the United States. If the US could count North Korea as a friend, it would be adding a friendly state located at the doorstep of China.

As James Clapper said, the United States has no permanent enemies. It would be worth remembering that as we approach the historical summit with North Korea.

Wednesday, June 6, 2018

Media Appearance: "US-North Korea talks: Pyongyang and Washington could become friends" on France 24

Busy times for Korea heads, as the U.S.-North Korea summit draws closer. Here is my interview with France 24.


In the interview, I try to explore the striking possibility that, as unlikely as it may seem today, the United States and North Korea could become friends, like the way in which the U.S. normalized relationship with Vietnam or Cuba. It's a real possibility that we must consider seriously.