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.

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.

Case of the Day: Export-Import Bank of Korea v. ASI Corp., 2018 U.S. Dist. LEXIS 111198 (C.D. Cal. June 28, 2018)

Summary:

Defendant alleged the plaintiff EXIM Bank of Korea improperly deleted relevant documents, in violation of the court order. Plaintiff's counsel first issued the litigation hold on June 5, 2015 and issued another litigation hold the day before filing suit on March 25, 2016. The counsel, however, did not circulate the litigation hold to top executives of the plaintiff bank. In March 2017, the plaintiff wiped the computer of the bank's president when he retired, although the president had relevant documents. Plaintiff did not notify the defendant of the deletion; the defendant only learned it by asking questions during a deposition. 

Initially, the magistrate judge imposed monetary sanctions on the plaintiff and ordered additional discovery. The defendant further moved for evidentiary sanctions. The magistrate judge issued the findings of fact that while the plaintiff improperly discarded relevant material and failed to timely search for responsive documents, there was no irremediable prejudice to the defendant, nor was there an intent to deprive defendants of information.

Takeaway:

This can never be said enough: when working with a non-US party, the attorney must be extremely, extremely, extremely cautious that the client is complying with the litigation hold. Litigation hold is peculiar to US court actions, and foreign parties often do not understand how strictly a litigation hold must be observed, or how severe the consequences are if the hold is violated. This particular situation is doubly bad because the party in violation of the hold is the plaintiff. This is certainly an easy way to lose all credibility for your case before the judge.

Case of the Day: Packard v. City of New York, 2018 U.S. Dist. LEXIS 101618 (S.D.N.Y. June 18, 2018)

Summary:

Defendant City of New York moved to compel the plaintiff, who previously lived in New York but now resides in Taiwan, to appear in New York for a deposition. The plaintiff cross-moved to allow for deposition by video conference.

The court granted the cross-motion for video conference. The court first noted Taiwan was not a signatory to the Hague Evidence Convention, but the plaintiff may contact the U.S. State Department to conduct the deposition in Taiwan for a fee.

Takeaway:

It is always worth remembering--Taiwan is not a signatory to any of the Hague Conventions! That Taiwan is an advanced economy does not change this fact. This is also the first time I learned that the fees for conducting deposition through the State Department are somewhat hefty.  (Approximately $1200 in one-time fee and $300 per hour for the facilities.)

Case of the Day: United States v. Abarca, 2018 U.S. Dist. LEXIS 101671 (S.D. Cal. June 15, 2018)

Summary:

Defendant was accused of entering the United States illegally through a caravan carrying 18 persons crossing the U.S.-Mexico border. Defendant claimed that there was selective prosecution based on national origin, as only five persons from Mexico and Central America were prosecuted while others, which included three Indian nationals, were not prosecuted.

The court dismissed the claim. The court found the defendants, who had the burden to overcome the presumption that a prosecutor has not violated equal protection, failed to demonstrate the prosecution treated similarly situated persons differently. The court first found the defendants had to draw from the overall pattern of prosecution, rather than the prosecution of the specific caravan on which the defendants were on board. The court further found the defendants failed to establish the discriminatory motive, noting many Central Americans in different occasions were not prosecuted either. The court then denied the defendants' request for discovery.

Takeaway:

Only tangentially related to Asia, but figured this was a good case to discuss in the current times when illegal immigration is the topic of the day. This case reminds me of Ashcroft v. Iqbal, 556 U.S. 662 (2009), the case from the previous round of heightened national security concerns. Like Iqbal, the defendants here face an impossible challenge: find a way to collect information from the government, whose discriminatory intent--at least at the top level--appears fairly clear.