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Liquidators petitioned for writ of mandamus to compel the DC district court's compliance with a Second Circuit mandate in an action involving claims to $6.8 million of alleged illegal proceeds from a New York bank account in the name of Kesten Development Corporation. The Second Circuit held that enforcement of Brazil's criminal forfeiture order violated the penal law rule barring United States courts from enforcing the penal laws of foreign countries. The court held that the proper standard of review in this case was the same as all mandamus cases and applied the Cheney factors. Applying the first Cheney factor, the court held that Liquidators have no right to relief and thus failed to satisfy the legal standard for obtaining mandamus. View "In Re: Trade and Commerce Bank" on Justia Law

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Liquidators petitioned for writ of mandamus to compel the DC district court's compliance with a Second Circuit mandate in an action involving claims to $6.8 million of alleged illegal proceeds from a New York bank account in the name of Kesten Development Corporation. The Second Circuit held that enforcement of Brazil's criminal forfeiture order violated the penal law rule barring United States courts from enforcing the penal laws of foreign countries. The court held that the proper standard of review in this case was the same as all mandamus cases and applied the Cheney factors. Applying the first Cheney factor, the court held that Liquidators have no right to relief and thus failed to satisfy the legal standard for obtaining mandamus. View "In Re: Trade and Commerce Bank" on Justia Law

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Plaintiff filed suit against Venezuela, seeking payment for or return of the Bolivar Collection, asserting jurisdiction under the commercial activity exception to the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. 1605(a)(2). Plaintiff inherited the Bolivar Collection, personal items belonging to Simon Bolivar that were gifted to Joaquin de Mier, which was passed down through generations of de Mier's family. The Eleventh Circuit affirmed the district court's denial of Venezuela's motion to dismiss on the basis of sovereign immunity. The court held that jurisdiction over plaintiff's action came from the third clause of the FSIA's commercial activity exception because his action was based on Venezuela's act outside the United States in connection with commercial activity, and that act had a direct effect in the United States. View "Devengoechea v. Bolivarian Republic of Venezuela" on Justia Law

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Plaintiffs filed a patent infringement suit in the District of Delaware against HTC, a Taiwanese corporation with its principal place of business in Taiwan, and its wholly owned U.S. based subsidiary, HTC America, a Washington corporation with its principal place of business in Seattle. HTC and HTC America moved to dismiss for improper venue or, in the alternative, to transfer the case to the Western District of Washington pursuant to 28 U.S.C. 1404(a) or 1406(a). The district court found that venue was not proper as to HTC America but was proper as to HTC. Plaintiffs voluntarily dismissed their suit against HTC America without prejudice. HTC filed a mandamus petition seeking dismissal for improper venue. The Federal Circuit denied relief, rejecting HTC’s attempts to characterize the legal issue as “unsettled.” Suits against alien defendants are outside the operation of the federal venue laws. View "In re: HTC Corp." on Justia Law

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Alimanestianu, a U.S. citizen, was killed in the 1989 bombing of Flight 772 by the Abu Nidal Organization. The State Department determined that the Libyan government sponsored the bombing. Libya was protected from suit in the U.S. under the Foreign Sovereign Immunities Act (FSIA); in 1996, FSIA was amended to permit claims for personal injury or death caused by acts of foreign sovereigns designated as state sponsors of terrorism, 28 U.S.C. 1605(a)(7). Libya had been designated in 1979. In 2002, the Alimanestianus and others sued Libya and obtained summary judgment in 2008, awarding $6.9 billion in total; the Alimanestianus received $1.297 billion. While the defendants appealed, the United States entered into a Claims Settlement Agreement with Libya. Libya agreed to deposit $1.5 billion into a humanitarian fund, $681 million of which was for claims by U.S. nationals for wrongful death or physical injury in pending case as “a full and final settlement.” The Foreign Claims Settlement Commission subsequently awarded the Alimanestianus $10 million. The Federal Circuit rejected a claim that vacating their judgment constituted a compensable taking. The court considered the Penn Central factors: the Executive has an overwhelming interest in conducting foreign affairs; the plaintiffs have no evidence that they had an investment-backed expectation in their claims and nonfinal judgment; plaintiffs’ claim that the Commission’s award was less than their nonfinal judgment does not refute that they received more than they would have without government action. View "Alimanesianu v. United States" on Justia Law

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Petitioners sought compensation under the Alien Tort Statute (ATS), part of the Judiciary Act of 1789, 28 U.S.C. 1350, based on terrorist acts committed abroad. They alleged that those acts were in part facilitated by Arab Bank, a Jordanian institution with a New York branch. They claimed that the bank used that branch to clear dollar-denominated transactions that benefited terrorists through the Clearing House Interbank Payments System (CHIPS) and to launder money for a Texas-based charity allegedly affiliated with Hamas. The Second Circuit and Supreme Court affirmed the dismissal of the case. Foreign corporations may not be defendants in suits brought under the ATS, which is "strictly jurisdictional” and does not provide or define a cause of action for international law violations. The Court noted that after the Second Circuit permitted plaintiffs to bring ATS actions based on human-rights laws, Congress enacted the 1991 Torture Victim Protection Act, creating an express cause of action for victims of torture and extrajudicial killing. ATS suits then became more frequent but “the presumption against extraterritoriality applies to [ATS] claims.” Separation-of-powers concerns that counsel against courts creating private rights of action apply with particular force to the ATS, which implicates foreign-policy concerns. Courts must exercise “great caution” before recognizing new forms of liability under the ATS. In this case. the only alleged connections to the United States, the CHIPS transaction and a brief allegation about a Texas charity, are “relatively minor” and the litigation has caused diplomatic tensions with Jordan, a critical ally. View "Jesner v. Arab Bank, PLC" on Justia Law

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The Fourth Circuit affirmed defendant's conviction for providing and conspiring to provide material support to terrorists, in violation of 18 U.S.C. 2339A, and conspiring and attempting to destroy an aircraft of the United States Armed Forces, in violation of 18 U.S.C. 32. Defendant was convicted for acts associated with an attack on an Afghan Border Police post at Camp Leyza. As a preliminary matter, the court held that it had jurisdiction to determine whether defendant qualified as a POW and was entitled to combatant immunity under the Geneva Convention Relative to the Treatment of Prisoners of War, irrespective of Army Regulation 190-8. On the merits, the court held that defendant was not entitled to combatant immunity under the Convention where the conflict in Afghanistan was not an international armed conflict. Consequently, because defendant did not qualify for combatant immunity pursuant to the Third Geneva Convention, he did not qualify for the common law defense of public authority. The court also held that section 32 clearly applied to otherwise lawful military actions committed during armed conflicts. In this case, defendant was convicted of attempting to fire anti-aircraft weapons at U.S. military helicopters, an attack that fell under the plain language of section 32. View "United States v. Hamidullin" on Justia Law

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Plaintiff, a Singaporean shipping company, entered into shipping contracts with an Indian mining company. The Indian company breached those contracts. Plaintiff believes that American businesses that were the largest stockholders in the Indian company engaged in racketeering activity to divest the Indian company of assets to thwart its attempts to recover damages for the breach. Plaintiff filed suit under the Racketeering Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1964(c). While the case was pending, the Supreme Court decided RJR Nabisco v. European Community, holding that “[a] private RICO plaintiff … must allege and prove a domestic injury to its business or property.” The district court granted the American defendants judgment on the RICO claims. The Seventh Circuit affirmed. Plaintiff’s claimed injury—harm to its ability to collect on its judgment and other claims—was economic; economic injuries are felt at a corporation’s principal place of business, and Plaintiff’s principal place of business is in Singapore. The court noted that the district court allowed a maritime fraudulent transfer claim to go forward. View "Armada (Singapore) PTE Ltd. v. Amcol International Corp." on Justia Law

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Following remand from the United States Supreme Court, the Fifth Circuit held that this case was not a garden variety excessive force case against a federal law enforcement officer. Plaintiffs alleged that a law enforcement agent used deadly force without justification against a fifteen year old boy, violating the Fourth and Fifth Amendments, when they fatally shot him across the United States-Mexico border. At issue was whether federal courts have the authority to craft an implied damages action for alleged constitutional violations in this case under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971). The court noted that no federal statute authorizes a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer under these circumstances. The court held that the transnational aspect of the facts presented a "new context" under Bivens, and numerous "special factors" counseled against federal courts' interference with the Executive and Legislative branches of the federal government. Therefore, the court affirmed the district court's dismissal of the case. View "Hernandez v. Mesa, Jr." on Justia Law

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Plaintiff AO Alpha Bank (Alpha Bank) initiated this lawsuit pursuant to the Uniform Foreign-Country Money Judgments Act (Recognition Act; Code Civ. Proc., sections 1713–1725)1 to recognize a Russian judgment against defendant Oleg Yakovlev. Yakovlev moved for summary judgment, arguing the judgment could not be recognized because: (1) the Russian court lacked personal jurisdiction; (2) he did not receive notice of the Russian proceeding in sufficient time to enable a defense; and (3) the Russian court proceeding was incompatible with due process. His central premise was that service of process in the Russian proceedings was ineffective. The trial court agreed and denied recognition of the Russian judgment on personal jurisdiction grounds. It granted Yakovlev's motion for summary judgment and denied Alpha Bank's cross-motion for summary judgment. After review, the California Court of Appeal reversed, finding due process did not require actual notice; it required only a method of service "reasonably calculated" to impart actual notice under the circumstances of the case. The Court found service by registered mail to the address Yakovlev designated in the surety agreement met that standard. Yakovlev did not meet his burden to establish a basis for nonrecognition on grounds of lack of personal jurisdiction, lack of notice, or incompatibility with due process. Accordingly, the presumption in favor of recognition applied, and the Russian judgment was entitled to recognition. View "AO Alpha-Bank v. Yakovlev" on Justia Law