Category Archives: Adjudication

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New York’s Highest Court Dismisses Complaint By French Asset Management Firm Alleging Breach of Fiduciary Duty and Unlawful Interference with Contract

Oddo Asset Mgt. v. Barclays Bank PLC, et al., No. 126 (NY 2012), involves the application of state common law principles to an international transaction gone bad.   Two investment vehicles, SIV-Lites and Oddo Asset Management, were French asset management companies with over 350 institutional clients and investment of 16.6 billion Euros.  They purchased mezzanine notes … Continue Reading

New York’s Highest Court Affirms Dismissal of Suit In Deference to Philippines Sovereign Immunity

Osqugama Swezey v. Merrill Lynch, et al., No. 88 (NY 2012), is a decision of New York’s highest court on the issue of how to balance the claims of deserving litigants before the court and those of the absent non-U.S. sovereign.  The issue is one we have posted on previously (e.g., here) Merrilly Lynch brought an … Continue Reading

Vivendi Securities Case Tried, and Lost.

We have posted before on the class action securities case against Vivendi (e.g., here).  The recent trial involving the case is a lesson for international litigation practice.  Since our last posting, the defendants in the case sought to stay the trial pending Second Circuit review.  Because there was no vehicle to access appellate review, permission … Continue Reading

District Courts Show Reluctance To Precluding Non-U.S. Expert or Consultant Access To Even Highly Confidential Material Subject to U.S. Court Imposed Orders of Confidentiality/Protective Orders

In complex commercial litigation generally, the questions typically arise concerning who can review or have access to the confidential documents or data of the adversary.  In international litigation, those questions also include “where” parties can have such access.  If a non-U.S. person or entity breaches a confidentiality order entered by a U.S. court, where can … Continue Reading

Another District Court Distinguishes Norex and Finds “Extraterritorial” Jurisdiction Under RICO

We recently posted on the analysis of the extraterritoriality issue stemming from Morrison but applied to RICO claims (here).  In that case, involving Chevron and the proceeings pending in the Southern District of New York, the District Court here determined that the Second Cicruit’s decision in Norex Petroleum Ltd. v Access Indus., Inc., 631 F.3d … Continue Reading

U.S. Government Settles International “Trading with Enemy” Act Claims Against ING Bank

The U.S. government settled an international investigation and threatened prosecution against ING Bank N.V. in a case highlighting the international nature of modern banking as well as governmental investigations and regulatory enforcement.  The U.S. passed laws prohibiting trade with certain countries.  Two statutes embodying those prohibitions are the Trading with the Enemy Act and the … Continue Reading

New York Court Enforces Non-U.S. Judgment Under Uniform Money Judgment Act Without Analysis of Personal Jurisdiction Over the Defendant; Rejects Forum Non Conveniens Dismissal

Abu Dhabi Commercial Bank PJSC v. Saad Trading, Contracting & Financial Services Co., 652191/11 (Sup. Ct. N. Y. Cty. 2012), granted summary judgment in lieu of complaint — a streamlined and expeditious remedy — to domesticate and enforce a judgment from the U.K.  In the U.K. proceedings, the defendant initially appeared, did not contest jurisdiction, … Continue Reading

Federal Circuit Rejects Extraterritoriality Limitation for Certain Patent Claims

In our first posting (here) of Merial Limited, BASF Agro B.V. v. CIPLA Ltd., et al., Nos. 2011-1471, 1472 (Fed. Cir. 2012), we discuss the Court of Appeals ruling on Fed. R. Civ. P. 4(k)(2).  Here we address an equally important issue for the international practitioner:  the extraterritorial limits to a federal district court’s contempt … Continue Reading

Federal Circuit Softly Splits with Seventh, Ruling that a Defendant Cannot Consent to a Jurisdiction To Preclude Application of Fed. R. Civ. P. 4(k)(2)

Merial Limited, BASF Agro B.V. v. CIPLA Ltd., et al., Nos. 2011-1471, 1472 (Fed. Cir. 2012), a decision from the federal Court of Appeals level court with jurisdiction over patent appeals, deserves a read by international practitioners — at least the part of the decision that involves the discussion of service of process.  (There is another … Continue Reading

Federal Court of Appeals Affirms Dismissal of State Law Claim of Fraud By Combination of State Substantive Law Requirements and Federal Procedural Pleading Requirements

Stephenson v. PricewaterhouseCoopers (PWC), 11-1204-cv (2d Cir. 2012) (Summary Order), addresses the viability of claims against Canadian-organized PWC for fraud and negligence arising from PWC’s unqualified audit reports attensting to the accuracy of one of the “feeder funds” into Bernard Madoff Investment Securities, LLC, which, as the Second Circuit says, “was later revealed to be a … Continue Reading

Bankruptcy Court Refuses To Stay International Litigation Against Non-Debtor Subsidiaries Despite Express Statutory Language Giving It the Power, but Not the Obligation, To Do So

In re Vitro, S.A.B de C.V v. ACP Master, Ltd., et al., Case No. 11-33335-HDH-15 (N.D. Tex. 2011), is a decision by a bankruptcy court but contains discussion of the issue often arising in contentious international litigation:  attempts to enjoin proceedings in other countries in favor of proceedings in the U.S., or attempts to enjoin … Continue Reading

Third Circuit Affirms Use of General Venue Provision for International Crime Committed in Part In and Out of the U.S., Joining in the Circuit Split

U.S. v. Pendleton, No. 10-1818 (3d Cir. 2011), addresses in the criminal law context the issue of venue in an international matter.  The defendant was convicted of a crime in Germany, where all the criminal acts occurred.  He served 19 months in a German prison, returned to the U.S., and was arrested and indicted for … Continue Reading

Ninth Circuit Finds Carmack Amendment Precludes Arbitration Provisions

The Ninth Circuit’s decision in Smallwood v. Allied Van Lines, et al., No. 09-56714 (9th Cir. 2011), discusses the important interplay between federal law and private contracts containing arbitration clauses.  The topic arises frequently in international litigation. The plaintiff hired Allied to move some of his household goods from southern California to the United Arab … Continue Reading

District Court in Chevron v Donziger Upholds Many Claims, Including RICO Claim Against U.S. Lawyer, Despite Thus-far Valid Non-U.S. Judgment

Chevron Corp. v Steven Donziger, et al., 11 Civ. 0691 (LAK) (S.D.N.Y. 2012), is the District Court’s most recent order in the array of cases concerning the multibillion judgment enetered against Chevron in Ecuador.  We have posted on the matter, including with respect to the District Court’s original preliminary injunction, the Second Circuit’s reversal, and … Continue Reading

Court Refuses Challenge to FINRA Rule Barring Waivers of Class Actions, Ruling that Plaintiffs Must Exhaust Administrative Remedies

Charles Schwab & Co. v. Financial Industry Regulatory Authority, Inc., No. C-12-518 EDL (N.D. Cal. 2012), provides a new analysis in the growing body of law addressing the circumstances under which waivers of class action in arbitration provisions are valid.   As we have posted on, the Supreme Court has addressed the question whether such state … Continue Reading

Eleventh Circuit Reiterates and Applies Strict Rules for the Exercise of District Court Discretion in Deciding Forum Non Conveniens Motions

Steven Prophet v. International Lifestyles, Inc., No. 11-12046 (11th Cir. 2011), is a Court of Appeals articulation of an important issue in international litigation.  The issue arises in many contexts where district courts are given discretion.  In this case the underlying issue relates to the application of the doctrine of forum non conveniens.  District Courts are … Continue Reading

Second Circuit, in Matter of First Impression in that Circuit, Holds that non-U.S. Production or Use Does Not Trigger “First Sale Doctrine” Contained in the Copyright Act

In reporting on Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008), aff’d by an evenly divided Court, Costco Wholesale Corp v. Omega, S.A., 131 S.Ct. 565 (2010) — a Ninth Circuit decision affirmed by the U.S. Supreme Court by an evenly divided Court –we have previously posted on the important aspect of … Continue Reading

Extraterritorial Jurisdiction Found Absent Under the Lanham Act for Trademark Infringement

Gucci America, Inc. v. Guess?, Inc., 09 Civ. 4373 (S.D.N.Y. 2011)(SAS)(JLC), discusses the growing issue in international litigation of the “extraterritorial” application of federal laws, in this case the Lanham Act’s prohibition of trademark infringement/false advertising.  Gucci sued Guess? for trademark infringement and related claims arising from the use of certain trademarks, logos, and designs.  Discovery in … Continue Reading

Another Court Follows Broad Interpretation of “Relating to” Jurisdiction Sufficient to Invoke the New York Convention

Ariel Freaner v. Enrique Martin Lutteroth Valle, Case No. 11CV1819 JLS (MDD) (S.D. Cal. 2011), involves the removal of a case to federal court and the court’s decision to maintain federal jurisdiction, and not remane, under the New York Convention.  The issue is an important one for international litigation practitioners. The noteworthy holdings in the … Continue Reading

Case Against IBM Japan Proceeds To Jurisdictional Discovery For Plaintiff To Attempt To Establish “Reverse” Piercing By Showing that the Absent Subsidiary Is the Agent or Instrumentality of the Present Parent; Court Also Denies Forum Non Conveniens Dismissal

Frederick W. Gundlach v. Int’l Business Machines Corp., et al., No. 11-CV-846 (S.D.N.Y. 2012), presents a pro se plaintiff’s claims against IBM and several non-U.S. affiliates for breach of contract and various employment related claims, including claims under Japan’s Labor Law.    For international practice purposes, the Court’s decision should be considered on the following issues: … Continue Reading

Eleventh Circuit Determines That Some But Not Claims Must Be Arbitrated

Jane Doe v. Princess Cruise Lines, Ltd., No. 10-10809 (11th Cir. 2011), addresses the important necessity of careful corporate drafting of international arbitration provisions, a topic we have posted on in the past. Plaintiff Doe alleged a harrowing story of a woman working for Princess Cruise Lines on one of its ships, who alleged she … Continue Reading

Court Upholds Counterclaim Against the U.S. on Political Question Grounds — Only To Dismiss It for Failure to Exhaust Administrative Procedures and for Failure To State A Claim

U.S. v. Kellogg Brown & Root Services, Inc., 10-cv-530 (RCL) (D.D.C. 2012), presents the interesting case whether a defendant in an international litigation can or should counterclaim litigation, in this case against the U.S. government.  The U.S. sued KBR for over $100 million in allegedly false claims arising from the war in Iraq.  The government is … Continue Reading

District Court Rejected Reconsideration of Discovery Ruling Requiring Disclosure of Flight Data In Connection with Plan Columbia

Venancio Aguasanta Arias, et al. v. Dyncorp, et al., Civil Action No. 01-1908 (D.D.C. 2012), denies a motion for reconsideration of a discovery order in an international litigation.   The underlying case involves allegations relating to “Plan Columbia”, where the government allegedly hired Dyncorp to assist “in illicit drug crop eradication by spraying fumigants from airplanes … Continue Reading

Case Conditionally Dismissed on Forum Non Conveniens Grounds Even In the Face of Blocking Statute in Chosen Non-U.S. Jurisdiction

Del Istmo Assurance Corp. v. Meletios Platon and Italkitchen Int’l, Case No. 11-61599-CIV-COHN/SELTZER (S.D. Fla. 2011), addresses the interesting and important issue in international practice of the choice of forum considerations applicable when one sovereign nation passes statutes attempting to block or regulate what disputes can be resolved in its courts based on what other … Continue Reading
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