All posts by Ted Folkman

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, 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, 2014, and 2015.

Lago Agrio: Settlement Prospects

In a comment to my post on the Second Circuit’s decision in Chevron v. Donziger, Doug Cassel raises the possibility of a settlement: “The best way forward continues to be for all parties to pursue a settlement in good faith.” Now, I have no idea what is going on behind the scenes. But how should we think about the possibility of a settlement in the Lago Agrio case?
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Case of the Day: In re

Candy Crush Saga logl

The case of the day is In re Ltd. (N.D. Cal. 2016). King, a Maltese company, is the developer of the Candy Crush video game. It owned the European Candy Crush trademark and related marks. It sued Storm8 Studios LLC and TeamLava LLC in the Civil Court of Malta, alleging that their Candy Blast Mania game infringed the Candy Crush mark. The Maltese court stayed the action pending EU Intellectual Property Office review of a challenge to the validity of the marks. King brought an application under § 1782 seeking leave to depose Perry Tam, Chak Ming Li, and William Siu, Storm8 and TeamLava executives, for use in the Maltese action (after the stay is lifted). At the ex parte stage, King argued that the Maltese action would necessarily continue whatever the outcome of the validity proceedings, because several of the marks at issue in the infringement lawsuit were not at issue in the validity proceeding; that the validity proceedings might take a decade to complete; and that discovery now was important because Malta imposes no obligation to preserve evidence and “Respondents had a history of changing corporate forms.” The court granted the application.

After the court granted the application, the Maltese court entered an order requiring preservation of documentary evidence but denying King’s request for discovery. The respondents then moved to quash the US subpoena.
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Case of the Day: Aviation & General Insurance Co. v. United States

Wreckage of Pam Am Flight 103
The wreckage of Pan Am Flight 103. Credit: Air Accident Investigation Branch

The case of the day is Aviation & General Insurance Co. v. United States (Fed. Cl. 2016). I first wrote about the case in June 2015, in connection with the decision denying the government’s motion to dismiss. Here was my description from the prior post:

The plaintiffs were insurance and reinsurance companies that had insured the aircraft hulls used on EgyptAir flight 648 and PanAm flight 103, two flights that were victims of terrorist attacks that, the United States determined, were sponsored by the government of Libya.

In 1996, Congress amended the FSIA to create a “state-sponsored terrorism” exception to sovereign immunity. The insurers then brought suit against Libya. But in 2008, Congress enacted the Libyan Claims Resolution Act, which allowed the government to restore Libya’s immunity. The United States and Libya entered into a claims settlement agreement, and the government, pursuant to the 2008 statute, terminated the pending lawsuits against Libya, including the insurers’ suit. The insurers had the right to seek compensation in the Foreign Claims Settlement Commission, an agency of the Department of Justice. But the insurers’ claims were unsuccessful for various reasons.

The question in today’s case is whether the government’s actions amounted to a taking of property for which the insurers are entitled to compensation under the Takings Clause of the Fifth Amendment, which provides: “nor shall private property be taken for public use, without just compensation.”

The court denied the government’s motion to dismiss, rejecting the claim that the plaintiffs’ choses in action were not property that could be taken and that the question was a nonjusticiable political question. Today’s decision deals with the proceedings on summary judgment.
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