Supreme Court Grants Cert to Resolve Split Over Extraterritoriality of Civil RICO
January 13, 2023 posted in: Extraterritoriality
Earlier today, the Supreme Court granted cert in Yegiazaryan v. Smagin and CMB Monaco v. Smagin and consolidated the cases for oral argument. The question in both cases is how RICO's private right of action applies to intangible property, in this case a California judgment confirming a foreign arbitral award. As I previously noted on…
Supreme Court Denies Cert in More Transnational Litigation Cases
January 13, 2023 posted in: Foreign Sovereign Immunity
On Monday, I reported that the Supreme Court denied cert in NSO Group Technologies Ltd. v. WhatsApp Inc., letting stand a Ninth Circuit decision that companies that work for foreign governments cannot claim immunity from suit under federal common law. Monday's orders list also denied cert in two other cases that TLB has been following. First,…
Seeking Second Circuit Review of Service in Smart Study
January 12, 2023 posted in: Service of Process
The plaintiff in Smart Study has attempted to appeal Judge Woods' careful decision concluding that the Hague Service Convention does not permit service by email.
Beer Halls and Forum Selection Clauses
January 11, 2023 posted in: Forum Selection Clauses
Homer Simpson once described alcohol as the "cause of, and solution to, all of life's problems." The same can be said for forum selection clauses. In the hands of the cognoscenti, these provisions can operate as magical elixirs that completely insulate a litigant from liability. In the hands of those unfamiliar with their intricacies, these…
Stare Decisis and Extraterritoriality
In a recent post, Curt Bradley suggested that the hardest problem the Supreme Court faces as it revisits the geographic scope of the Lanham (Trademark) Act in Abitron Austria GmbH v. Hetronic International, Inc. is what to do about existing precedent. In Steele v. Bulova Watch Co. (1952), the Court held that the Act applies to…
Supreme Court Denies Cert in NSO v. WhatsApp
January 9, 2023 posted in: Foreign Official Immunity
Today, the Supreme Court denied cert in NSO Group Technologies Ltd. v. WhatsApp Inc. The order lets stand a Ninth Circuit decision holding that entities that do not meet the Foreign Sovereign Immunities Act's (FSIA) definition of an "agency or instrumentality" of a foreign state cannot claim immunity under federal common law. (Disclosure: I joined an amicus brief…
Resolving the Immunity Issues in Halkbank
By David P. Stewart
January 9, 2023 posted in: Supreme Court
The question now before the U.S. Supreme Court in Türkiye Halk Bankasi A.Ş., v. United States is whether a foreign state's wholly-owned private bank is immune from criminal prosecution in U.S. courts. The issue is framed as one of statutory interpretation, since the Second Circuit affirmed District Judge Berman's ruling that the 1976 Foreign Sovereign…
Explaining the Hague Judgments Convention to U.S. Lawyers
January 5, 2023 posted in: Foreign Judgments
On March 2, 2022, the United States signed the Hague Judgments Convention, a multilateral agreement that seeks to facilitate the recognition and enforcement of judgments across national borders. While there is a vast difference between signing and ratification – as anyone who has followed the halting progress of the Hague Convention on Choice-of-Court Agreements can…
MBS's Immunity and the Subject Matter Jurisdiction Problem
As previously discussed at TLB, a federal district court recently dismissed claims against Mohammad bin Salman (MBS) arising from the murder of journalist Jamal Khashoggi. When the claims were filed, MBS was merely Crown Prince of Saudi Arabia and not entitled to head-of-state immunity. MBS was subsequently appointed Prime Minister, however, a position that does…
Supreme Court to Revisit Extraterritorial Scope of Trademark Law
By Curtis A. Bradley
January 3, 2023 posted in: Extraterritoriality
On March 1, the Supreme Court will hear argument in Abitron Austria GmbH v. Hetronic International, Inc., which concerns the extraterritorial scope of the Lanham (Trademark) Act. In resolving this case, the Court will need to decide what to do about an old precedent that appears to be inconsistent with the Court's modern approach to…