Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

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

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

The Second Circuit vacated the district court's judgment entered in the stipulated total amount of $100,000,000 following a jury verdict holding that the bank was liable under the Antiterrorism Act (ATA), 18 U.S.C. 2333, for injuries sustained by plaintiffs or their relatives during terrorist attacks in Israel conducted by Hamas. The court held that the jury was not properly instructed on the "international terrorism" element of the ATA. Accordingly, the court vacated and remanded. The court noted that its determination makes it unnecessary for it to decide whether any of the bank's other challenges warrant such relief because the parties have entered into a settlement agreement that forgoes retrial on vacatur and remand in lieu of a specified total money payment to the bellwether plaintiffs. View "Linde v. Arab Bank, PLC" on Justia Law

The Second Circuit vacated the district court's judgment entered in the stipulated total amount of $100,000,000 following a jury verdict holding that the bank was liable under the Antiterrorism Act (ATA), 18 U.S.C. 2333, for injuries sustained by plaintiffs or their relatives during terrorist attacks in Israel conducted by Hamas. The court held that the jury was not properly instructed on the "international terrorism" element of the ATA. Accordingly, the court vacated and remanded. The court noted that its determination makes it unnecessary for it to decide whether any of the bank's other challenges warrant such relief because the parties have entered into a settlement agreement that forgoes retrial on vacatur and remand in lieu of a specified total money payment to the bellwether plaintiffs. View "Linde v. Arab Bank, PLC" on Justia Law

The Second Circuit affirmed the district court's dismissal of a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of three children from New York to Thailand. The court held that the Convention does not enter into force until a ratifying state accepts an acceding state's accession and that Article 35 limits the Convention's application to removals and retentions taking place after the Convention has entered into force between the two states involved. Therefore, because the Convention did not enter into force between the United States and Thailand until April 1, 2016, after the allegedly wrongful retention of the children in New York on October 7, 2015, the Convention does not apply to petitioner's claim and the district court did not err in dismissing his petition. View "Marks v. Hochhauser" on Justia Law

Judgment creditors of the Islamic Republic of Iran and Iran's Ministry of Intelligence and Security sought to enforce underlying judgments obtaining the turnover of $1.68 billion in bond proceeds allegedly owned by Bank Markazi. The Second Circuit held that the settlement agreements released plaintiffs' non-turnover claims with respect to some but not all of the banks; the assets at issue were in fact located abroad, but that those assets may nonetheless be subject to turnover under state law pursuant to an exercise of the court's in personam jurisdiction, inasmuch as the district court has the authority under New York State law to direct a non‐sovereign in possession of a foreign sovereignʹs extraterritorial assets to bring those assets to New York State; and those assets will not ultimately be subject to turnover, however, unless the district court concludes on remand that such in personam jurisdiction exists and the assets, were they to be recalled, would not be protected from turnover by execution immunity. Accordingly, the court affirmed in part, vacated in part, and remanded for further proceedings. View "Peterson v. Islamic Republic of Iran" on Justia Law

Plaintiff filed suit against defendant, alleging that defendant, who had power of attorney over plaintiff's finances, stole millions of dollars from him through fraudulent financial schemes. The district court granted defendant's motion to dismiss the complaint on the ground that plaintiff failed to allege a domestic injury as required by RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016). The Second Circuit held that, to the extent plaintiff alleged injuries to property located within the United States, he satisfied the Racketeer Influenced and Corrupt Organizations Act's, 18 U.S.C. 1964(c), domestic injury requirement. But to the extent plaintiff alleged injuries to property located outside of the United States, the fact that defendant or his co‐defendants transferred those stolen funds to (or through) the United States fails to transform an otherwise foreign injury into a domestic one. Accordingly, the court reversed in part, vacated in part, and remanded. View "Yarur Bascunan v. Yarur Elsaca" on Justia Law

A Chinese construction company and seven of its employees challenged the district court's order denying their motion to quash subpoenas requiring the employees to appear before a grand jury. The Second Circuit affirmed the order, holding that the 2009 Bilateral Agreement between the United States and the People's Republic of China (PRC) incorporates a 2003 Diplomatic Note that imposes a registration requirement on construction personnel. In this case, the Executive Branch reasonably interpreted the relevant agreements as requiring construction personnel to register with the State Department before receiving immunity and because that condition was not satisfied here, the employees were not entitled to diplomatic immunity. View "In re Grand Jury Subpoenas Returnable December 16, 2015" on Justia Law

Discovery sought pursuant to 28 U.S.C. 1782 is for use in a proceeding in a foreign or international tribunal where the applicant is a crime victim authorized to submit the discovery to the foreign tribunal, but is not making a claim for damages therein. The Second Circuit also held that an applicant that lawfully has obtained discovery under Section 1782 as to one foreign proceeding may use that discovery in other foreign proceedings. Accordingly, the court affirmed the district court's order granting petitioners' application for discovery in aid of foreign litigation under Section 1782. View "Bouvier v. Adelson" on Justia Law

Vera sued the Republic of Cuba for the extrajudicial killing of his father in 1976. In 2008, Vera obtained a default judgment against Cuba in Florida state court, relying on the “terrorism exception” to sovereign immunity, 28 U.S.C. 1605A(a)(1). Vera then secured a default judgment against Cuba in a U.S. District Court in New York, which granted full faith and credit to the Florida judgment. Vera served information subpoenas on the New York branches of various foreign banks, including BBVA, which refused to comply with the subpoena’s request for information regarding Cuban assets located outside the U.S. BBVA moved to quash the subpoena, contending that Vera’s judgment was void for lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. 1602. The Second Circuit reversed in favor of BBVA. The district court lacked subject matter jurisdiction over Vera’s action against Cuba because Cuba was not designated a state sponsor of terrorism at the time Vera’s father was killed. Vera failed to establish that Cuba was designated a state sponsor of terrorism as a result of his father’s death. The FSIA’s terrorism exception to sovereign immunity—the only potential basis for subject matter jurisdiction— did not apply. Cuba was immune from Vera’s action. View "Vera v. Republic of Cuba" on Justia Law