Monthly Archives: June 2011

D.C. Circuit Holds that Conversion of Claim Under FSIA Section 1605A Does Not Require Re-Service of Process Because the New Statute Doesn’t Create a New Cause of Action

Gates, et al. v. Syrian Arab Republic, et al., No. 08-7118 (D.C. Cir. May 2011) (consolidated with 09-7108), involves the appeal from the District Court’s treatment of the gruesome case of two murdered U.S. contractors in Iraq by Al-Zarqawi the his terrorist organization, al-Tawid wal-Jihad (know in Iraq as al-Queda). The provisions of the Foreign … Continue Reading

Ninth Circuit Examines U.S. Sovereign Immunity; Applies Rule 44.1 Broadly To Determine if Reciprocity Condition of Federal Statute Satisfied

Tobar v. U.S., No. 08-56756 (9th Cir. Apr. 2011), involves a review by the United States Court of Appeals for the Ninth Circuit of a suit against the U.S. government arising from the U.S. Coast Guard’s stopping of an Ecuadorian vessel in international waters near the Galapagos Islands for suspected involvement in smuggling drugs.  After boarding … Continue Reading

Second Circuit Follows Its Kiobel Decision; Assumes “Hypothetical” Subject Matter Jurisdiction; Affirms a Strict Rule for Finding Alter Ego Liability for an Instrumentality of a Non-U.S. Sovereign

Shan v. China Construction Bank Corp., No. 10-2992-cv (unpublished) involves claims by a resident alien of the U.S. against China Construction Bank for alleged torture in violation of the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 note, as well as torture and alleged cruel, inhumane, degrading treatment, and prolonged arbitrary detention in China … Continue Reading

New York Federal Court Confirms that Issue of Joinder/Consolidation Is for Arbitrator, Not the Court, Notwithstanding Stolt-Nielsen

In Safra Nat’l Bank (SNB) v. Penfold Investment Trading, Ltd., 10 Civ. 8255 (S.D.N.Y. Apr. 2011),  the plaintiff sought an injunction to enjoin a AAA arbitration and sever Penfold’s separate claims into separate arbitration proceedings.  Each defendant was allegedly induced to purchase an investment security by the SNB broker.  The arbitration agreement apparently did not … Continue Reading

New York Federal Court Enforces Forum-Selection-Clause Requiring Enforcement of Arbitral Award in Bulgaria; Specifically Targeted Evidence of Corruption Required and Not Proferred

Zeevi Holdings Ltd. v. Republic of Bulgaria, No. 09 Civ. 8856 (S.D.N.Y. Apr. 2011), decides whether a party with a valid arbitral award may invoke the provisions of the New York Convention to enforce the award in the U.S. or rather must comply with the forum-selection clause of the underlying agreement, which the Court here … Continue Reading

SEC v. Torre — German Discovery Rejected; Many Claims Dismissed Under Morrison

We have previously posted on the Magistrate Judge’s rejection of Fabrice Tourre’s discovery requests concerning Germany in SEC v. Goldman Sachs & Co. and Fabrice Tourre, 10 Civ. 3229 (S.D.N.Y.).  In a short order, the District Court has now affirmed the Magistrate Judge’s Report and Recommendation. At the same time, the District Court, on June … Continue Reading

Applying Federal Common Law, Court Finds Matter Should Be Arbitrated; Simultaneously Upholds Forum Selection Clause

Farrell v. Subway Int’l, 11 Civ. 08 (S.D.N.Y. Mar. 2011), is a decision on a motion to stay arbitration and simultaneous invalidation of a negotiated forum selection clause. Farrell is a citizen of Ireland and operates three Subway franchises in Dublin. Subway filed a demand for arbitration with the American Dispute Resolution Center and requested … Continue Reading

D.C. District Court Refuses To Grant Plaintiff Default Judgment Against Iran, Finding Israeli Law Governed Dispute

In Estate of Yael Botvin v. Islamic Republic of Iran, et al., Civil Action No. 05-0220 (D.D.C. March 2011), plaintiff is the estate of an Israeli domiciliary killed in a 1997 terrorist attack in Jerusalem, Israel. The District Court had earlier denied a motion for a default judgment and treated the current motion as one … Continue Reading

District Court in Eleventh Circuit Deepens the Circuit Conflict By Upholding Alient Tort Statute Claims Against Corporate Defendant

In re Chiquita Brands Int’l, Inc. Alient Tort Statute and Shareholder Derivative Litigation, Case No. 08-01916 (S.D.Fla June 2011), is multidistrict litigation of seven cases consolidated in the Southern District of Florida.   The opinion just rendered is the MDL court’s decision on motions to dismiss claims under the Alien Tort Claims Statute (ATS), 28 U.S.C. sec. 1350, … Continue Reading

First Circuit Dissent Explores the Constitutional Infirmity of the Extraterritorial Application of U.S. Drug Trafficking Law

U.S. v. Jose Del Carmen Cardales-Luna, No. 08-1028 (1st Cir. Jan. 2011), involves the First Circuit’s review, and affirmance, of a drug trafficking conviction by a jury in the District of Puerto Rico of a Columbian crew member of a Bolivian flag vessel boarded by the U.S. Coast Guard in international waters.  The majority opinion … Continue Reading

Second Circuit Affirms Enforcement of Arbitral Award; Reaffirms “Manifest Disregard” Legal Availability, But Inapplicability

STMicroelectronics, N.V. (ST) v. Credit Suisse Securities (USA) LLC (CS), Dkt. No. 10-3847-cv (2d Cir. June 2011), affirms in major part the District Court’s confirmation of an arbitral award against CS. The arbitration arose from alleged and apparently proven improprieties in trading auction rate securities. The award, issued unanimously, undid the trades; ST would return … Continue Reading

Seventh Circuit Follows Strict Line of Authority on Attaching Non-U.S. Sovereign Assets To Satisfy Judgment

Jenny Rubin, et al. v. The Islamic Republic of Iran, et al., No. 08-2805 (7th Cir. 29 Mar. 2011), corrected decision (7th Cir. 1 Apr. 2011), is an appeal in the United States Court of Appeals for the Seventh Circuit by Iran involving two distinct orders issued in connection with the plaintiffs’ efforts to collect on a judgment … Continue Reading

Morrison Strikes Again — District Court in D.C. Modifies International, Industry-wide Tobacco Judgment Only As Against BATCo

We have posted many times on last year’s U.S. Supreme Court’s decision in Morrison v. National Australia Bank (No. 08-1191), which 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 … Continue Reading