Monthly Archives: April 2011

U.S. Supreme Court’s AT&T Mobility Decision Holds that FAA Preempts State Law Prohibition on Arbitration Clause Preclusion of Class-wide Arbitrations

We recently reported on the Second Circuit’s decision in  In re: American Express Merchants’ Litigation, Dkt. No. 06-1871-cv (2d Cir. Mar. 2011), in which the Court of Appeals revisited the issue of whether contractual prohibition of arbitrating federal antitrust claims as class actions was valid under the Federal Arbitration Act (FAA).  The Court of Appeals held that the waiver was invalid. Enter … Continue Reading

Fifth Circuit Affirms Dismissal of Major Challenge to OPEC and to National Oil Companies’ Participation, Citing Political Question and Act of State Doctrines

Spectrum Stores, et al. v. Citgo Petroleum Corp., et al., No. 09-20844 (5th Cir. Feb. 8, 2011), involves two class actions brought by gasoline retailers against oil production companies alleging antitrust violations.  Most of the defendant oil companies are owned by OPEC member nations.  Even though the plaintiffs sued numerous non-sovereigns, the Fifth Circuit affirmed … Continue Reading

Ninth Circuit Holds that Defense Based on Prior Arbitration Creates “Relates To” Jurisdiction To Support Removal of Litigation To Federal Court Under New York Convention

Infuturia Global Ltd. v. Sequus Pharmaceuticals, Inc., et al., No. 09-16378 (9th Cir. Feb. 7, 2011), addressed what the Court of Appeals described as the “novel question” whether, under the U.S.’s statutory embodiment of the New York Convention in 9 U.S.C., “removal” jurisdiction exists over a case where the defendant raises an affirmative defense related to … Continue Reading

Fifth Circuit Affirms Rejection of Sovereign Immunity Defense by Petrobras (Brazil)

Transcor Astra Group S.A. v. Petroleo Brasileiro S.A.-Petrobras (PB),  No. 10-20266 (5th Cir. Feb. 2011) (unpublished),  reviewed a District Court opinion rejected on a motion to dismiss PB’s defense under the Federal Sovereign Immunities Act (FSIA) against .  The Court of Appeals found that the complaint alleged facts sufficient to show that its “claim is based upon … Continue Reading

Eleventh Circuit Reverses and Reinstates Claims under Alient Tort Statute and Torture Victim Protection Act of 1991

Baloco, et al. v. Drummond Co., No. 09-16216 (11th Cir. Feb. 2011) (amended 5/20/11), addresses claims under the Alient Tort Statute (ATS), 28 U.S.C. sec. 1350.  The decision also provides a relatively unique treatment of the Torture Victim Protection Act of 1991 (TVPA), which is a part of the ATS within Section 1350 but, as we … Continue Reading

On Remand from Supreme Court, Second Circuit Adheres To View that Waiver of Class Action Treatment in Antitrust Arbitration Is Invalid

Last year, in the antitrust litigation brought by merchants against American Express (Amex), the Second Circuit Court of Appeals decided that (1) the question of the enforceability of the class action waiver provision was properly decided by the court rather than the arbitrators, and (2) the class action waiver provision was unenforceable under the Federal … Continue Reading

Denial of Section 1782 Discovery Based on District Court’s Discretion Highlights Differences in Judicial Approaches

In re Application of Caratube, 10-0285 (D.D.C. 2010) [730 F.Supp. 2d 101] (In re Caratube op on Reconsideration) merits a short discussion in light of our posting on the Third Circuit’s  decision concerning Chevron’s § 1782 discovery efforts.  Caratube involved a § 1782 petition by the oil company directed at persons and entities in the U.S., … Continue Reading

Third Circuit Weighs In Chevron Ecuador Matter, Permitting § 1782 Discovery But Reversing on District Court’s Invocation of Crime-Fraud Exception

In Re Chevron Corp., No. 10-2815 (3d Cir. Feb. 2011), involves a review by the United States Court of Appeals for the Third Circuit of a District Court’s order granting Chevron discovery under 28 U.S.C. § 1782 (see the discussion the use of U.S. discovery in international proceedings in our e-book, International Practice: Topics and … Continue Reading

Strict Application of FSIA Requirements and “Separate Entity” Rule for Banks Determine Priority in Disputed International Litigation Over Blocked Iranian Assets

Levin, et al. v. Bank of New York, et al., 09 CV 5900 (RPP) (S.D.N.Y. Jan. 2011), involves claims of priority to assets blocked by the U.S. Office of Foreign Assets Control of the U.S. Treasury held by various banks to satisfy judgments obtained by various persons injured by Republic of Iran.  The Levin plaintiffs … Continue Reading

Southern District of New York Courts Are Not Alone in Dismissing Securities Fraud Claims Under Morrison

Recall (how can one forget!) that the Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191), held that Section 10(b) of the Securities Exchange Act of 1934 did not provide a private cause of action in “foreign-cubed” cases—cases where foreign plaintiffs sue foreign defendants for misconduct in connection with securities traded on foreign … Continue Reading

Second Circuit Permits the Assertion of But Rejects on the Merits a New York Convention Challenge To Chevron’s Commencement of International Arbitration

The Second Circuit Court of Appeals decision in Republic of Ecuador, et al. v. Chevron Corp., Docket Nos. 10-1020-cv(L), 10-1026 (Con) (2d Cir. Mar. 2011), is not an appeal from the celebrated litigation now going on in the Southern District of New York and the Second Circuit involving Chevron and an Ecuadorian judgment of environmental liability … Continue Reading

No Jurisdiction Over Non-U.S. Sovereign Instrumentality on Alter-Ego Grounds

The Court overseeing the massive international litigation attempting to secure enforcement of judgments against Argentina for defaults on bonds issued a decision in Seijas, et al. v. Republic of Argentina, 10 Civ. 4300 (S.D.N.Y. March 2011). In the decision, and ignoring the procedural complexity that got it there, the Court granted summary judgment dismissing claims … Continue Reading

International Contracts Held To A Different Standard: Forum-Selection and Choice-of-Law Clauses Upheld

In Liles, et al. v. Ginn-La West End, Ltd., No. 10-11943 (11th Cir.  1/28/11), Ginn-La developed and sold lots of property in a subdivision in the Bahamas.  Plaintiffs in the suit reside in various states within the U.S. and sued in Florida.  The sales contracts contained identical choice-of-forum clauses:  the Bahamas was the exclusive venue for … Continue Reading