by
After the IRS refused to grant the foreign shipping corporation Good Fortune an exemption to some of its U.S.-based income from taxation, the tax court ruled in favor of the IRS. The DC Circuit reversed, holding that the IRS's interpretation of Internal Revenue Code 883 in the 2003 Regulation was unreasonable and could not stand. Even if the IRS reasonably concluded that sometimes—maybe oftentimes—bearer shares were incapable of proving the residence of their owners, the court held that the 2003 Regulation's categorical bar on considering bearer shares did not follow from that premise. The court explained that the IRS has not justified treating all bearer shares as incapable of proving ownership; and if some corporations' bearer shares were not kept in record form, and thus were not capable of proving the location of an owner, then the IRS should have identified those corporations' shares and tailored its rule accordingly. View "Good Fortune Shipping SA v. Commissioner" on Justia Law

by
Plaintiffs filed suit against Hezbollah and two foreign banks for injuries sustained during the attacks in northern Israel in 2006. In one action, American plaintiffs allege that Hezbollah's rocket attacks amounted to acts of international terrorism, in violation of the Anti-Terrorism Act (ATA). In a second action, all plaintiffs accused the banks of funding Hezbollah's attacks, in violation of both the ATA and the Alien Tort Statute (ATS). The DC Circuit vacated the district court's dismissal of the ATA claims, holding that the district court must first determine that it has personal jurisdiction over the defendants before applying the statute's act-of-war exception. The court affirmed the dismissal of claims under the ATS based on the Supreme Court's recent decision in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018), which held that foreign corporations (like the bank defendants here) were not subject to liability under that statute. The court remanded for further proceedings. View "Kaplan v. Central Bank of Iran" on Justia Law

by
Zank, a U.S. citizen, and Moreno, an Ecuadorian citizen, divorced and had joint custody of BLZ, born in Michigan in 2006. The decree prohibited Moreno from taking BLZ to Ecuador without prior notice to Zank. In 2009, Moreno took BLZ to Ecuador. Zank obtained a Michigan state court temporary sole custody order, contacted the State Department, and filled out a Hague Convention petition with the Embassy in Ecuador. Zank did not complete the process by filing the petition with the Ecuadorian courts. The State Department labeled Ecuador as noncompliant with its Hague Convention obligations. In Ecuador, Moreno enrolled BLZ in school. BLZ flourished, participating in extracurricular activities and making many friends. In 2010, Moreno permitted Zank to visit BLZ in Ecuador. Zank did not take BLZ to the Embassy or pursue a Hague Convention petition. Moreno obtained an ex parte order from an Ecuadorian court prohibiting BLZ from leaving the country. The parents eventually filed an agreement in Ecuador: Moreno received full legal custody and an increase in child support; Zank waived issues concerning BLZ's arrival in Ecuador. The "no travel" order was lifted. BLZ visited Zank in 2014. Moreno and Zank reiterated their agreement, for filing in the U.S.; it was filed in the wrong court. In 2016, BLZ visited Zank. Zank claims that BLZ told him that Moreno had physically abused her and that she did not wish to return to Ecuador. BLZ voiced a preference for living permanently with Zank. The Michigan court granted Zank custody. Moreno filed this Hague Convention petition in federal court, which held that the original abduction meant that Ecuador could not be the child’s habitual residence. The Sixth Circuit reversed. The proper remedy for the initial kidnapping was a Hague Convention petition in Ecuador, subject to applicable defenses, not self-help. View "Moreno v. Zank" on Justia Law

by
Heirs of several Jewish art dealers doing business in Frankfurt, Germany in the 1930s sought to recover a valuable art collection (Welfenschatz) allegedly taken by the Nazis. The DC Circuit largely affirmed the district court's denial of Germany's motion to dismiss, holding that Germany failed to carry its burden of demonstrating that the allegations did not bring the case within the expropriation exception of the Foreign Sovereign Immunities Act (FSIA) as defined and applied in Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir. 2016). On remand, the district court must grant the motion to dismiss with respect to the Federal Republic of Germany—but not the SPK, an instrumentality for which the commercial-nexus requirement can be satisfied without the presence of the Welfenschatz in the United States. The court rejected Germany's argument that the heirs must exhaust their remedies against Germany in its courts before pressing a claim against it elsewhere. Finally, the court rejected Germany's argument that the heirs' state law causes of action conflict with, and thus were preempted by, United States foreign policy. View "Philipp v. Federal Republic of Germany" on Justia Law

by
The Second Circuit reversed a petition seeking leave to subpoena the defendant law firm, Shell's United States counsel, for documents belonging to a foreign company, Royal Dutch Shell. The court held that it was an abuse of discretion for a district court to grant a 28 U.S.C. 1782 petition where the documents sought from a foreign company's U.S. counsel would be unreachable in a foreign country. The court cautioned in Application of Sarrio, S.A., 119 F.3d 143 (2d Cir. 1997), that an order compelling American counsel to deliver documents that would not be discoverable abroad, and that are in counsel's hands solely because they were sent to the United States for the purpose of American litigation, as in this case, would jeopardize the policy of promoting open communications between lawyers and their clients. View "Kiobel v. Cravath, Swain & Moore, LLP" on Justia Law

by
The Second Circuit affirmed in part and reversed in part the district court's denial of defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on grounds of foreign sovereign immunity and Federal Rule of Civil Procedure 12(b)(6) pursuant to the act of state doctrine. The court held that it had subject matter jurisdiction over the case under the Foreign Sovereign Immunities Act (FSIA) where Argentina asserted control over its stake in YPF via expropriation; Argentina incurred a separate commercial obligation under the bylaws to make a tender offer for the remainder of YPFʹs outstanding shares; and Peterson claimed it was injured by repudiation of that commercial obligation. Therefore, the repudiation was an act separate and apart from Argentinaʹs expropriation of Repsolʹs shares, and Peterson's action against Argentina fell within the direct-effects clause of the FSIA. Petersenʹs claims against YPF also fell within the direct‐effect clause of the FSIAʹs commercial activity exception. The court declined to reach the portion of this appeal challenging the district court's ruling on defendants' act of state defense. View "Petersen Energia Inversora, SAU v. Argentine Republic" on Justia Law

by
EIG, an American investment fund, filed suit against Petrobras and others, alleging counts of fraud, aiding and abetting fraud and civil conspiracy to commit fraud. EIG's claims stemmed from its loss of a $221 million investment in an undersea oil-drilling project off the coast of Brazil. Petrobras moved for dismissal based on lack of subject matter jurisdiction, arguing that Petrobras was an instrumentality of the Brazilian state and thus immune from suit under the Foreign Sovereign Immunities Act. The DC Circuit affirmed the district court's order denying dismissal, holding that Petrobras was not immune from EIG's suit. The court concluded that Petrobras's commercial activity in Brazil caused a direct effect in the United States, including a direct effect on EIG. View "EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A." on Justia Law

by
Numerous plaintiffs filed a wrongful death action under section 6-5-410, Ala. Code 1975, against Continental Motors, Inc. ("CMI"), and RAM Aircraft, LP ("RAM"), among others, on behalf of the heirs of Mark Goldstein, Marjorie Gonzalez, and Luis Angel Lopez Barillas (collectively, "the decedents"). On March 10, 2010, the decedents died in an airplane crash in Tegucigalpa, Honduras. The crash was allegedly a result of a defective starter-adapter assembly that had been manufactured by CMI and/or the failure of the airplane's engine, which had been refurbished by RAM. Mark and Marjorie were citizens and residents of Honduras; Luis was a citizen and resident of Guatemala. The administration of each of the decedents' estates was conducted in their respective countries of citizenship and residence. CMI and RAM filed motions for a summary judgment arguing that none of the plaintiffs was a personal representative of the decedents and, thus, that plaintiffs lacked the authority to pursue the wrongful-death claims. The circuit court denied CMI's and RAM's summary-judgment motions. CMI and RAM separately petitioned the Alabama Supreme Court for a writ of mandamus directing the circuit court to set aside its orders denying their summary judgment motions and to enter an order granting their summary judgment motions, thereby dismissing the plaintiffs' wrongful death action for lack of subject-matter jurisdiction. The Alabama Court granted CMI's and RAM's petitions in part and denied them in part. The Court concluded CMI and RAM failed to demonstrate the administrator-plaintiffs were without authority to pursue a wrongful-death claim on behalf of Mark's heirs. Therefore, in this regard, the Supreme Court denied CMI's and RAM's petitions for a writ of mandamus. The Supreme Court also concluded CMI and RAM demonstrated that none of the plaintiffs were personal representatives of Marjorie's or Luis's estate and, thus, lacked authority to pursue a wrongful-death claim on behalf of Marjorie's or Luis's heirs. Accordingly, the circuit court lacked subject-matter jurisdiction over the wrongful-death claims brought on behalf of Marjorie's and Luis's heirs, and CMI and RAM were entitled to have their summary-judgment motions granted in that respect and to have those claims dismissed for lack of subject-matter jurisdiction. Therefore, in this regard, the Supreme Court granted CMI's and RAM's petitions for a writ of mandamus and ordered the circuit court to grant CMI's and RAM's summary-judgment motions, and dismissed the wrongful-death claims asserted by the heirs of Marjorie and Luis. View "Ex parte Continental Motors, Inc." on Justia Law

by
Petitioner-Appellant Mirella Ivonne Avila-Ramos appealed the district court’s denial of habeas corpus relief for an extradition certification order. Avila-Ramos was wanted for aggravated homicide in Chihuahua, Mexico. According to the warrant for her arrest, Avila-Ramos plotted with Arturo Heriberto Herrera Rey, her paramour, to murder her husband. Avila-Ramos’s husband, who had survived an earlier attempt on his life, was on his way to a hospital appointment when he was attacked and killed by a hired gun. An investigation implicated Avila-Ramos and Rey in the hit, and Rey was convicted of aggravated homicide for his involvement in the crime. On appeal, Avila-Ramos challenged the magistrate judge’s and district court’s probable cause rulings. Finding that the magistrate judge adequately found probable cause that Avila-Ramos committed aggravated homicide, the crime identified in the extradition request, the Tenth Circuit affirmed the district court’s order. View "Avila-Ramos v. Deal" on Justia Law

by
During the Rwandan Genocide, the United States admitted a limited number of refugees with priority given to those who were in the most danger, including, in 1998, Ngombwa and purported members of his family. In 1998, DHS received information from prosecutors in Rwanda that Ngombwa had twice been convicted in absentia by Rwandan tribal courts for participation in the Genocide and had been named in an indictment in the International Criminal Tribunal for Rwanda. The government proved at trial that his admission, status, and eventual naturalization were based on material falsehoods. At sentencing, the government proved to the district court’s satisfaction that the falsehoods were used to conceal Ngombwa’s participation in the Genocide. The Eighth Circuit affirmed his convictions for unlawful procurement of naturalization and conspiracy to commit the same, 18 U.S.C. 1425, 371, and his above-Guidelines sentence of 180 months. Rejecting Ngombwa’s claim his counsel was ineffective for failing to contact and interview five of his family members, the court reasoned that counsel made a strategic decision to avoid more detrimental evidence. View "United States v. Ngombwa" on Justia Law