Wednesday, February 20, 2019

Case of the Day: Nike, Inc. v. Wu, 2018 U.S. Dist. LEXIS 158174 (S.D.N.Y. Sept. 11, 2018)

Summary:

Plaintiffs shoe manufacturers have obtained default judgment against a number of individuals and companies in China based on trademark violation. To enforce the judgment, the plaintiffs sent post-judgment subpoenas to several Chinese banks with branches in New York. The Chinese banks moved to quash the subpoena.

The court found that it had specific jurisdiction over the banks, which have a branch in New York and transact business out of it. The court also found, inter alia, that the separate entity rule did not bar the exercise of jurisdiction as to the subpoena.

Takeaway:

For practitioners of post-judgment enforcement, this is quite a judgment. For all the talks that US courts are pulling back on asserting jurisdiction on extraterritorial affairs, there is an end-run on the presumption of extraterritoriality by, for example, reaching China through Chinese bank branches in New York.


Thursday, February 14, 2019

Case of the Day: Paguirigan v. Prompt Nursing Empl. Agency LLC, 2018 U.S. Dist. LEXIS 156331 (E.D.N.Y. Sept. 12, 2018)

Summary:

Plaintiffs are a group of Filipino nurses who sought to certify a class against the defendant recruiting companies for a claim pursuant to the Trafficking Victims Protection Act, 18 U.S.C. s. 1589 et seq. and a breach of contract. The plaintiffs claimed that the defendant breached the contract to pay prevailing wage, and abused the legal process such that they would be forced to continue working for the same employer for the low wage.

The court certified the class, finding that the plaintiffs established a claim under TVPA forced labor provisions.

Takeaway:

Always fascinating to see a statute marshaled to protect a claim that the statute probably did not contemplate at the time of its drafting. Here, TVPA is used for a fairly straightforward labor dispute rather than kidnapping victims.

Tuesday, February 12, 2019

Case of the Day: United States v. 1,071,251.44 of Funds Associated with Mingzheng Int'l Trading, 2018 U.S. Dist. LEXIS 138071 (D.D.C. June 29, 2018)

Summary:

The Department of Justice filed the in rem forfeiture action against certain funds associated with Mingzheng International Trading, which is alleged to be a front company that North Korea's Foreign Trade Bank used in Shenyang, China to launder money. With the laundered money, Mingzheng allegedly entered into a number of illegal transactions with other sanctioned entities, including the Chinese telecom company ZTE.

The magistrate judge recommended the default judgment be granted and forfeiture authorized.

Takeaway:

As we are entering the age of tensions with China and North Korea, doing law with Asian parties increasingly means being familiar with sanctions scheme and the consequences of violating sanctions.

Thursday, February 7, 2019

Case of the Day: Han v. Hankook Tire Co., 2018 U.S. Dist. LEXIS 146315 (N.D. Ohio Aug. 28, 2018)

Summary:

In a related case prior to this one, a Cayman asset management company sued a South Korean company and prevailed, only to have the judgment vacated on appeal by the Sixth Circuit Court on the grounds of lack of subject matter jurisdiction, as there was a lack of complete diversity because neither party was from the United States. In a new action, the individual plaintiff who is a citizen of Texas filed the same claim. The defendant moved to dismiss, noting that the plaintiff previously took the position that the Cayman company was an indispensable party in the related litigation. In response, the plaintiff argued that the Cayman company was now defunct and she was the real party in interest.

The court held judicial estoppel applied to the plaintiff's argument, and dismissed the case with prejudice.

Takeaway:

It's not every day you see a judicial estoppel opinion, so the case is valuable in that regard alone. But there's this--I would love to know the full backstory to this litigation, because there must be something interesting and nefarious involved when a Cayman company was suing a South Korean conglomerate. (The previous litigation claimed Hankook Tires induced the Cayman company to engage in an illegal currency trading.)


Tuesday, February 5, 2019

Ongoing Case Highlight: Nak Kim Chhoeun v. Marin, 2019 U.S. Dist. LEXIS 17560 (C.D. Cal. Jan. 3, 2019)

Summary:

Petitioners have previously filed a class action challenging the US government policy of rounding up and placing in immigration detention Cambodian nationals living in the United States. The petitioners filed for a temporary restraining order, claiming the government has continued this policy since it began in late 2017 with no notice on such raid.

The court granted the TRO petition, ordering the government to provide at least 14 days notice to class members and counsel prior to detention.

Takeaway:

Much credit to Sidley Austin, representing the class members from this reprehensible policy that is rounding up from the Cambodian refugees who sought asylum in the United States after escaping the Khmer Rouge's killing fields.

Thursday, January 31, 2019

Case of the Day: Jayone Foods, Inc. v. Aekyung Indus. Co., Ltd., 2019 Cal. App. LEXIS 56 (Cal. App. Jan. 22, 2019)

Summary:

In the underlying claim, the children of a California decedent claimed the decedent passed away after having used the humidifier cleaning agent manufactured by a Korean maker and sold at retail outlets in California. The retail outlets cross-claimed against the manufacturer of the cleaning agent, and the manufacturer moved to quash the service of summons. The lower court granted the motion to quash.

On appeal, the court reversed. The court found that, because the defendant sold its consumer products directly to distributors based in California, the defendant had purposeful availment that subjected it to California's jurisdiction. The court distinguished the Supreme Court's Nicastro decision by holding that the defendant did not merely place its items generally in the stream of commerce, but to California retailers.

Takeaway:

Big, important case, in many different ways! The Korean humidifier cleaner product liability issue is a really big deal, as it is the largest product liability case that South Korea has ever faced--it is their version of asbestos litigation.

Then there is the California court's willingness to give some life back to the "stream of commerce" theory of personal jurisdiction. If one looks carefully at any fact pattern in which a foreign manufacturer places its products in the United States, it would not be very difficult to create a factual narrative that distinguishes Nicastro and finds along the lines of this case. Would be interesting to see if the California Supreme Court will take on this case.

Thursday, January 24, 2019

Case of the Day: In re Abilify Aripiprazole Prods. Liab. Litig., 2019 U.S. Dist. LEXIS 3279 (N.D. Fla. Jan. 8, 2019)

Summary:

In a discovery dispute, the plaintiff (who requested the documents) challenged the validity of the privilege log produced by the defendant. The plaintiff claimed the log did not differentiate the legal personnel involved in Japan, whether they were members of the bar (bengoshi), law student clerks or patent attorneys (benrishi). Plaintiffs claimed the distinction was necessary as attorney-client privilege attaches only to licensed attorneys.

The court held the issue was moot, as the defendant submitted a declaration that it made no claim of privilege based only on unlicensed personnel.

Takeaway:

You need to know so much in case of international litigation, including the classification of legal personnel in a foreign jurisdiction!