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.

Case of the Day: Andover Healthcare v. 3M

The case of the day is Andover Healthcare, Inc. v. 3M Co. (8th Cir. 2016). Andover and 3M were competitors in the market for latex-free bandages. In 2013, Andover sued 3M for patent infringement in Delaware and in Germany.

Andover’s European patent (EP 1 027 084 B1) claimed “a cohesive product comprising … an inherently crystalline elastomer and at least one tackifying agent in an amount effective to disrupt the crystalline structure of the elastomer and maintain the elastomer in a partial polycrystalline state.” In the German case, 3M’s expert opined that 3M’s elastomers “are not present in a crystalline … state,” and thus that 3Ms products could not infringe the patent. Andover did not believe the expert’s test results could be correct and asked 3M to provide samples of its materials to allow Andover to do its own tests for use in the German case. But 3M refused on the grounds that disclosure would compromise its trade secrets. 3M had previously disclosed the information for use in the Delaware case. But the Delaware court refused to modify the protective order to allow use of the information in the German case, and the German court had not yet ruled on Andover’s request for discovery. So Andover sought the information from 3M for use in Germany by way of § 1782. A magistrate judge denied its application, and the district court affirmed. Andover appealed.
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Case of the Day: Orange Middle East & Africa v. Equatorial Guinea

The case of the day is Orange Middle East & Africa v. Republic of Equatorial Guinea (D.D.C. 2016). Orange and the Republic of Equatorial Guinea were the shareholders of a telecommunications company providing service in Equatorial Guinea. The government was the majority shareholder. After some disputes arose, the parties entered into a settlement agreement, which required the government to purchase Orange’s shares if it granted a telecommunications license to a third party. The agreement provided for arbitration of disputes in Paris under the ICC rules.

In 2011, the government granted a third party a license, but it failed to purchase Orange’s shares. Orange demanded arbitration. The arbitrators awarded Orange more than € 131 million. The government sought to set aside the award, but the Court of Appeals in Paris authorized enforcement of the award.

Orange sought to confirm the award in Washington. The government moved to dismiss for insufficient service of process.
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Case of the Day: Kim v. Lakeside Adult Family Home

The case of the day is Kim v. Lakeside Adult Family Home (Wash. 2016). This is the appeal of the case of the day from February 20, 2015. Here was my summary of the facts from the prior post:

Ho Im Bae was an inpatient resident of the Lakeside Adult Family Home, a nursing home. She died of a morphine overdose, and her death was ruled a homicide. The personal representative of her estate, Esther Kim, sued several defendants, including a nurse, Christine Thomas. The claim against Thomas was that she was allegedly negligent for failing to report that Bae was being abused, as required under Washington’s mandated reporter law. Thomas, a Norwegian national living in Norway at the time of the lawsuit, moved to dismiss for insufficient service of process. The trial court ruled that the service was proper, but it dismissed the claim on the merits on summary judgment. …

The decision is short on details of Kim’s attempt to effect service. Kim hired a process server, who personally served the documents on Thomas at her residence. It’s unclear whether the process server was a private person or a person with some particular competence under Norwegian law. It’s also unclear what methods of service Norwegian law permits, although the court noted without explanation that the service was “considered due and proper service under the laws of Norway.” Norway is a party to the Hague Service Convention, and it has objected to service under Article 10.

Thomas appealed on the service issue, and the court of appeals affirmed—I opined in the prior post that this was a mistake. Now the case was on appeal to the Washington Supreme Court.
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