In the case of the day, AQ Asset Management LLC v. Levine (N.Y. Sup. Ct. 2014), a Swiss national who had sued US defendants in the New York state courts found that he could not avoid the reach of a New York subpoena in a related case brought by the same US parties. In 2008, Markus Schumacher, the Swiss national, sued the City of New York, Paul Ware Jr., William C. Clifford, Antiquorum USA, Inc., and Evan Zimmerman in the New York Supreme Court. Schumacher’s claims are not made clear in today’s decision: they “arose from an August 2007 incident that took place at the offices of Antiquorum USA, where Schumacher had served as the chief operating officer for plaintiff Antiquorum S.A.” Two of the defendants in the 2008 lawsuit, Antiquorum and Zimmerman then sued Michale Levine, Habsburg Holdings Ltd., and Osvaldo Patrizzi, also in New York. The second suit was related to the first, though the decision doesn’t explain exactly how.
The case of the day is Marker Völkl (International) GmbH v. Epic Sports International, Inc. (S.D.N.Y. 2013). Marker Völkl, a Swiss corporation, had a license agreement with Epic, a Nevada corporation, under which Epic distributed Marker Völkl’s tennis equipment. In a separate agreement, Capstone Business Credit, LLC, a New York company, guaranteed Epic’s performance of its financial obligations to Marker Völkl. Both agreements had an arbitration agreement providing for arbitration under the Swiss Rules of International Arbitration.
In 2011, Marker Völkl terminated the license agreement and demanded payment of unpaid royalties. Epic and Capstone refused to pay, and Marker Völkl initiated an arbitration in Switzerland. Epic counterclaimed in the arbitration and filed an action in the New York Supreme Court, alleging that after Marker Völkl terminated the agreement, it misappropriated Epic’s intellectual property by continuing to sell tennis racquets manufactured from molds created by Epic. Epic later withdrew its counterclaims in the arbitration.
The arbitrator found in favor of Marker Völkl and awarded € 300,000 in damages. The New York court dismissed Epic’s action for lack of personal jurisdiction and insufficient service of process. Marker Völkl then petitioned for confirmation of the award. Epic reasserted its counterclaims and sought to stay confirmation pending resolution of the counterclaims. The court confirmed the award. Epic had not shown any of the exceptions to confirmation permitted by Article V of the New York Convention. The counterclaims were not related to any of the NYC exceptions and were irrelevant.
The decision is straightforward and seems plainly correct. Easy case.
The case of the day is United States v. Badger (D. Utah 2013). In 2004, the defendant, George Badger, had consented to entry of a judgment against him in a case brought by the SEC. The claim in the case was that Badger had bribed brokers to induce them to sell stock in his golf course development to their clients. The judgment was for $19 million, of which Badger had voluntarily paid $2,228. (The government had collected an additional $13,000 by garnishment). With interest, the amount outstanding was $32 million.
The government brought a second action against Badger and his wife, the SB Trust, Ardco Leasing & Investment LLC, American Resources and Development Co., and Springfield Finance and Mortgage Co. The claim was that the other defendants were Badger’s nominees and alter egos and that their assets should be available to satisfy the judgment.
The government sought issuance of a letter of request to obtain discovery from Miltex, Banque SCS, and Camille Froidevaux, all in Switzerland; according to the government, Badger “has used them as nominees to funnel money into the United States.” Badger and the other defendants opposed the motion on the grounds that “Swiss law will prevent [the government] from obtaining the discovery it seeks.”
The judge’s discussion of the general law of letters of request is not recommended: he says, incorrectly, that he is being asked to issue a letter of request pursuant to 28 U.S.C. § 1782, and he seems to say that the Hague Evidence Convention is the sole mechanism by which a court can issue a letter of request. But the judge properly dispatched Badger’s argument. I assume Badger’s argument is a reference to Article 271 of the Swiss Penal Code, which makes it illegal in Switzerland to “carr[y] out activities on behalf of a foreign state on Swiss territory without lawful authority, where such activities are the responsibility of a public authority or public official.” Article 271 curtails the ability of a US court to order a Swiss party to provide discovery under the FRCP, but the whole point of the Hague Convention is to allow the US court to request the Swiss authorities themselves to compel the evidence, so I question whether Badger’s argument has any real force. In any case, the judge found that Badger had failed to persuade him that the evidence would not be produced, and “mere speculation about whether Plaintiff will in fact obtain the desired discovery does not constitute good cause” to refuse to issue a letter of request.