The case of the day is Martinez v. Bloomberg LP (2d Cir. 2014). Brian Anthony Martinez, a former employee of Bloomberg LP, sued Bloomberg for wrongful termination in violation of the Americans with Disabilities Act. The facts aren’t that important to the decision. Martinez’s employment contract had an English choice of law clause and an exclusive forum selection clause naming the courts of England as the exclusive forum for disputes. Bloomberg moved to dismiss under FRCP 12(b)(3) for improper venue. 1 The district court dismissed, and Martinez appealed. He argued that the district court was wrong in its view of the scope of the choice of forum clause (i.e., that assuming the clause was enforceable, it did not apply to his ADA claim) and that in any event the clause was unenforceable. Continue reading →
We know, in light of Atlantic Marine, that the correct procedure is to move to dismiss for forum non conveniens, not for improper venue, but that procedural nicety is not key to the decision. ↩
I asked esteemed fellow blogger Antonin I. Pribetic to help me and Letters Blogatory readers get a grip on the Canadian law that will be at issue in the new Ontario case, and I’m delighted he’s agreed. Antonin is a trial and appellate lawyer practicing in Toronto with a focus on international litigation and arbitration. He is also the author of The Trial Warrior Blog.
My thanks to Ted Folkman for inviting me to write a guest post as a follow-up to the excellent Symposium recently hosted here at Letters Blogatory on forum non conveniens and enforcement of foreign judgments.
As Ted reported here recently, the Lago Agrio plaintiffs have commenced an action in the Ontario Superior Court of Justice to enforce the Ecuador judgment against Chevron Corporation and its Canadian subsidiaries. A copy of the Statement of Claim in Yaiguaje et al. v. Chevron Corporation et al. (Court File No. CV-12-454778) is available here (the “Ontario Enforcement Action”).
This post will provide an overview of the impeachment defenses available in Canada for the recognition and enforcement of foreign judgments and will offer some thoughts on the apparent ‘reverse veil-piercing’ theory implicit in the Statement of Claim in the Ontario Enforcement Action.
Canadian lawyers are pretty excited about a series of decisions from the Supreme Court of Canada on personal jurisdiction of foreign defendants and forum non conveniens. H/T to esteemed fellow-bloggers Kenneth Dekker of The Litigator and Antonin Pribetic of The Trial Warrior, who have both posted on the cases.
I will leave the real commentary on these cases to the Canadians. I’ll just comment briefly on the juiciest of the three cases, Breeden v. Black, which was a Canadian libel case brought by the disgraced press baron, Conrad Black, Baron Black of Crossharbour, against officers and directors of his company, Hollinger International, Inc., who, after an investigation, determined that Hollinger had improperly paid Lord Black millions of dollars, to the detriment of shareholders. The saga was the subject of much litigation in the United States. Lord Black was indicted and convicted of mail fraud and obstruction of justice. Though his conviction on some of the charges was vacated on appeal, he remains in prison. Lord Black’s stewardship of other people’s money was the subject of a withering opinion by Vice Chancellor Strine of the Delaware Chancery Court, which you can read at 844 A.2d 1022 (Del. Ch. 2004) if you are interested. The special committee of Hollinger’s board that conducted the investigation of Lord Black’s self-dealing posted the results of the investigation on its website, leading to the claim of libel. May I say that I find it amusing that Lord Black, former owner of a British newspaper, should be a plaintiff in a libel case?
The gist of the case is that the Canadian courts could properly exercise jurisdiction over the US defendants, on the grounds that the tort had occurred in Canada, where the supposed libels were published; and that the lower court judge had not abused his discretion by refusing to dismiss the case on forum non conveniens grounds (though Justice LeBel, who wrote the opinion, found that many of the forum non conveniens factors favored trial in Illinois, and I have the sense that he would have ruled in favor of trial in Illinois had he been the judge in the first instance).
A few points of interest:
There seemed to be no question that a Canadian judgment in favor of Lord Black, if he prevails, will be unenforceable in the United States. Presumably this is on account of the SPEECH Act. I would go further and say that if the case were litigated in the United States in the first instance, it is almost inconceivable that the report the directors put on their website would be found libelous. The First Amendment requires proof of actual malice in a case like this, and Lord Black almost certainly could not prevail under US law.
Two civil actions were pending in the United States at the time of the decision, charging Lord Black with breaches of fiduciary duty. What happens if the US actions are decided first, and Lord Black loses? Would a Canadian court apply non-mutual collateral estoppel? Canadian lawyers, please chime in!
The choice of law discussion is interesting. Justice LeBel makes a point of pointing out that Lord Black has “limited his claim to damages to his reputation in Ontario.” Does this make sense? Does a figure such as Lord Black have one reputation in Ontario and another reputation elsewhere? Even if that could have been the case in the past, in a global media culture I don’t think this is sensible.
Do read the posts on my Canadian colleagues’ blogs for more details.