Case of the Day: In re Air Cargo Shipping Services Antitrust Litigation

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The case of the day is In re Air Cargo Shipping Services Antitrust Litigation (E.D.N.Y. 2012). The decision does not give details of the underlying dispute, though the title of the case (a multi-district litigation consolidated in the Eastern District of New York) pretty much says it all. The issue was whether the defendant, Société Air France, should be required to produce documents that it had withheld on the grounds that production was forbidden by the French blocking statute. Air France claimed the plaintiffs should have to proceed under the Hague Evidence Convention rather than via the Federal Rules of Civil Procedure. The judge undertook a very standard Aérospatiale analysis and concluded, unsurprisingly, that Air France had to produce the documents. The factors were mixed: the documents sought were clearly relevant, and the request was precise and specific. On the other hand, Air France was acting in good faith and had not, for instance, invoked the blocking statute strategically in some instances and not in others. Several of the factors were difficult to weigh. The Hague Evidence Convention was, according to the judge, of questionable effectiveness as an alternative, and Air France’s claim of hardship relied solely on the Christopher X case, which the judge discounted because “the legislative history of the statute gives strong indications that it was never expected or intended to be enforce against French subjects but was intended rather to provide them with tactical weapons and bargaining chips in foreign courts.” Take that, ABA!

On the main issue—the balance of national interests—the judge found that the US had strong interests in enforcement of our antitrust laws, and that France’s interests were weak insofar as France had already consented to disclosure of the information in connection with criminal antitrust proceedings the United States had brought against Air France.

Photo credit: Alexander Jonsson

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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