Posts Tagged ‘United States’

Privacy Is A Government Joke And We’re All The Judicial Punchline

December 27, 2013

Image by D. Honig via Daily Kos.

My nominee for the best/worst example of faulty parallelism by a judge in 2013:

ACLU et al. v. Clapper et al.

Reference: American Civil Liberties Union et al v. Clapper et al, U.S. District Court, Southern District of New York, No. 13-03994. per Judge William H. Pauley III (link)

(H/T @TyreJim via Twitter)

Ontario Court Assumes Jurisdiction Over Foreign Issuer in Securities Class Action

October 24, 2013

In Kaynes v. BP, 2013 ONSC 5802 (CanLII), (“Kaynes“), Mr. Kaynes, the plaintiff, commenced a proposed class action against BP, the well-known multinational oil and gas company, headquartered in the United Kingdom and registered on the London, New York and Toronto Stock Exchanges.  Kaynes alleged that BP made various misrepresentations in its investor documents before and after the Deepwater Horizon oil spill in the Gulf of Mexico in April 2010 (the “Oil Spill”).  He sought leave to bring a statutory action for secondary market misrepresentation under Part XXIII.I of the Securities Act, R.S.O. 1990, c. S.5, and an alternative claim for common law negligent misrepresentation.

 A parallel class action was commenced in the United States (In BP plc Securities Litigation,  United States District Court for the Southern District of Texas, Case No. 4:10-md-02185) brought on behalf of a proposed class consisting of all purchasers of ADS over the NYSE between November 8, 2007 and May 28, 2010. Kaynes seeks to represent a class of Canadian residents who purchased BP shares between May 9, 2007 and May 28, 2010 and includes all Canadians who purchased common shares and ADS, whether on the TSX, NYSE or European exchanges;  excluding any Canadian residents who purchased BP shares over the NYSE and who do not opt-out of the U.S. Proceeding.

BP brought a jurisdiction motion in advance of the leave and certification motions, seeking an order staying this proceeding (in part) based on lack of subject-matter jurisdiction, or, alternatively, on the basis of forum non conveniens.
(more…)

Yaniv Roznai, “Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution”

August 14, 2013

Yaniv Roznai (Ph.D. Candidate, London School of Economics – Law Department) has posted “Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles during a Democratic Revolution”, Southern California Interdisciplinary Law Journal, Vol. 22, No. 2, 2013. Here’s the abstract:

Do lawyers have any social responsibilities during a revolution? If so, what are they? Does the lawyer hold any special roles in revolutionary times? This article discusses these questions, which raise thorny theoretical and practical dilemmas. According to the article, revolutions in the Western world and the legal profession are linked. Therefore, the article describes the historical role lawyers have played in the great revolutions which have created stable liberal traditions based on the idea of “rights”: The Glorious English Revolution of 1688-1689 and the American and French Revolutions of the end of the 18th century. Moreover, the article deliberates on the characteristics of lawyers which support conservatism and oppose revolutions and vice versa. It then presents the conflicting duties which are imposed upon lawyers during revolutions. On the one hand, the lawyer has an obligation to preserve the legal order and the rule of law. This obligation may entail a duty to act in a counter-revolutionary manner. On the other hand, the lawyer has obligations to improve the legal system and to promote the rule of law. These may entail actions which support the revolutionary values or goals, especially in a democratic revolution. Lastly, the article considers the practical role of lawyers during a revolution, inter alia, in public speaking and assisting in drafting the basic documents of the new legal order. Even in times of revolutions that seek to collapse the existing legal order, the legal milieu is of great importance. The revolutionary lawyer plays a significant role in preserving and creating the temporary, transitional and new legal orders. According to the article, the participation of lawyers in a revolution strongly influences the legitimacy of the existing legal order and necessarily the legitimacy of the revolution itself.

A copy of the paper is available for download via SSRN here.

Manuel A. Gomez, “The Global Chase: Seeking the Recognition and Enforcement of the Lago Agrio Judgment Outside of Ecuador”

August 14, 2013

 Manuel A. Gomez (Florida International University (FIU) – College of Law) has posted “The Global Chase: Seeking the Recognition and Enforcement of the Lago Agrio Judgment Outside of Ecuador”, Stanford Journal of Complex Litigation, Vol. 1, No. 199, 2013/Florida International University Legal Studies Research Paper No. 13-14. The abstract reads:

 The Lago Agrio judgment is by all measures the largest and most complex award rendered against a multinational oil company in Ecuador, and perhaps in the entire region. With regard to its size, the type of remedies awarded to the plaintiffs by the Sucumbíos court, and the mechanisms through which those remedies will be made effective, the enforcement of the Lago Agrio judgment has rekindled a debate on several important issues that pertain to the litigation of complex cases in South America. The Lago Agrio judgment has revealed the complexity of the multi-layered, multi-step process of enforcing a foreign judgment across different jurisdictions. In so doing, the Lago Agrio ruling has a direct bearing on the larger debate about the judicial protection of collective rights in Latin America, the controversial treatment of punitive damages in countries of the civil law tradition, and the undue influence of litigants on the performance of the courts. The development of the Chevron-Ecuador litigation in South America is one of the most important pieces in the context of this saga and has been generally neglected from the consideration of academicians. This Article fills that gap.

By switching its attention away from the litigation handled by U.S. courts, and focusing into the generally overlooked South American court cases, this Article helps to complete the puzzle of the Chevron saga with regard to the factors that affect the recognition and enforcement of foreign judgments in that region. More specifically, this Article will discuss the interplay between the procedural steps routinely required by the national laws of the enforcing jurisdictions, the treaty obligations assumed by the nations involved, the statutory defenses allowed to the parties, and the litigation strategies employed by counsel to effectively assist or impede the judgment from being fulfilled. The contribution of this Article is two-fold. First, it discusses with certain level of detail the recognition and enforcement regime of foreign judgments across Latin America with special attention to the domestic and the international legal regimes applicable to Argentina and Brazil. Second, by giving importance to the context within which the Lago Agrio litigation and related proceedings are taking place, this Article addresses defendant’s strategies to evade the enforcement of an adverse judgment, and the incentives and challenges faced by plaintiffs, including the strategies procedural and otherwise, to obtain the recognition and enforcement of said foreign judgment. Although the discussion offered in this Article in centered on a single case, in a broader sense this Article highlights the practical difficulties of transnational judgment enforcement and the strategies employed by the parties across multiple countries.

 Download a pdf copy of the paper via SSRN here.

“Feeling Minnesota (But Looking Ontario)”

July 31, 2013

feelingminnesota

The recent Ontario decision in Amtim Capital Inc. v. Appliance Recycling Centers of America2013 ONSC 4867 (Ont. S.C.J.) [“Amtim Capital”] highlights the limits of judicial comity in international litigation and to what extent a default judgment in a foreign court will operate as res judicata, issue estoppel or abuse of process.  It also provides insight into how most Canadian judges take a dim view of forum shopping. (more…)


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