The case is interesting because of the treatment of the Chinese defendant’s address. The Hague Service Convention, remember, simply does not apply if the defendant’s address is unknown, and so the limitations the Convention imposes on service by email also do not apply if the defendant’s address is unknown. The defendant’s address was listed in its Amazon page, which you might think would be the end of the issue. But the plaintiff argued that he hadn’t been able to verify the address using the China Mainland Business Registry, apparently because the Amazon page didn’t give the defendant’s name in Chinese. Anyway, it doesn’t seem that the plaintiff tried to serve process via the Chinese central authority once it decided that the address could not verified.

It seems to me that the plaintiff outsmarted himself here. If the website gives an address, rather than undertaking investigations and making motions for leave to serve by alternate means and then fighting motions challenging the validity of the service, why not just ask the central authority to serve process at the address given? The judge didn’t take this approach though. Instead, she concluded that the plaintiff had not used reasonable diligence to discovery the defendant’s address, and therefore, that the address was not “unknown” for purposes of the Convention. The right result, but a questionable path to it.

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Today’s case of the day is Devengoechea v. Venezuela (11th Cir. 2026). Friend of Letters Blogatory Ingrid Brunk discussed the case in a recent post at the Transnational Litigation Blog, and I wrote about an earlier stage of the case years ago. Devengoechea was a collector of artifacts of Simón Bolívar who lived in Florida. He claimed that Venezuelan government officials had agreed to meet with him in Venezuela to negotiate a purchase of his collection. They agreed that they would inspect the artifacts and either buy them or return them to him. He left the artifacts in Venezuela to allow the government to inspect them, but “ultimately, Venezuela neither paid Devengoechea for the collection nor returned it to him.” Let me begin by saying that it strikes me that Devengoechea seems to have been either incredibly naive or else poorly advised. In any case, Devengoechea sued for breach of contract and unjust enrichment.

At first, Venezuela failed to appear in the case. The clerk entered its default, the court held a trial on damages, and ultimately it entered a default judgment. Venezuela then did appear and sought to vacate the judgment. Devengoechea stipulated to the vacatur. Venezuela then moved to dismiss for lack of subject-matter jurisdiction. The court denied the motion, Venezuela appealed, and the Eleventh Circuit affirmed. On remand, Venezuela continued to participate in the litigation, moving again to dismiss and also moving for summary judgment. The court denied its motions. A “regime change” in Venezuela also led Venezuela’s lawyer to withdraw from the case. Venezuela then stopped participating. While the court apparently considered entering another default judgment on liability, Devengoechea “stated he prefer[red] to prove his case.” So the court held a trial on the merits. Venezuela did not participate. Following trial, the court entered judgment for $17 million against Venezuela. Venezuela then appeared again in the case and appealed.

The basis for the appeal was the claim that the FSIA does not allow for “trial in absentia” but requires a default judgment. I am not totally I understand what the appeal is about. In a criminal case, there’s a real issue about trials in absentia, because a criminal defendant has a right to be present at all stages of the case. Even in criminal cases, the right is not absolute and can be waived or forfeited. But what is a “trial in absentia” in a civil case? Isn’t it just a trial where one party fails to show up after receiving notice? The party has the right to be present, of course, but the party’s presence is, as far as I know, never actually required for the trial of a civil action to go ahead. When a party to a civil action is not a natural person, then of course the party itself can never really be “present” in court anyway. It seems to me that what happened here was that the court scheduled a trial, one side didn’t show up, and the court went ahead with the trial rather than proceeding by default. It’s hard for me to see why this could be inconsistent with the FSIA, why it isn’t just an example of a case proceeding to trial and judgment in the ordinary course.

The Eleventh Circuit, though, didn’t see it that way. The court treated the judgment as a default judgment and held that the FSIA did require a plaintiff to follow the ordinary procedure for obtaining a default judgment in FRCP 55. The court, in its discussion of Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1979),¹ seemed to agree that in a non-FSIA case, the analysis I gave above would be correct. I admit to having some trouble understanding why it has distinguished the case. The reasoning seems flawed to me: (1) the FSIA’s provisions on default judgments are mandatory and exclusive and require compliance with the procedural requirements of FRCP 55; (2) this was a default judgment; therefore (3) the outcome of the trial in absentia, which did not follow the ordinary procedure for defaults, must be set aside. But I don’t see any actual reasoning or support for point (2) in the decision. Judge Rosenbaum’s dissent seems to be right on the money:

The Majority Opinion offers no reason why a district court cannot try a civil defendant in absential when the litigant ceases to defend the case. And it doesn’t explain how—despite binding precedent to the contrary—a judgment following that type of trial is a default judgment.

Ingrid’s post correctly points out how frustrating this must be for the plaintiff. I agree, though I have to say I don’t understand why the plaintiff did not take the option of a default judgment when it was offered. It is hard to imagine the court giving Venezuela relief from a default in the circumstances, just because we prefer trials on the merits. You don’t get two freebies.

1. Old Fifth Circuit cases are precedential in the Eleventh Circuit, which split off from the Fifth Circuit as that circuit grew and grew. ︎

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Let’s pause to remember the men and women who died in the 9/11 terrorist attacks, twenty-five years ago today.

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The case of the day is In re Application of Biogen MA (D. Del. 2026). It’s a Section 1782 decision in a cross-border patent dispute. I was counsel to the applicant. Biogen had brought patent infringement claims against Sandoz in the US and in the UK. It intended to bring a claim in Italy, but it wasn’t able to plead what it needed to plead to commence the case, because the evidence it had obtained in the other proceedings could, under the protective orders, not be used for purposes of any other proceeding.¹ So Biogen sought leave under Section 1782 to issue a subpoena. After the court granted leave, Sandoz moved to vacate the order and to quash the subpoena.

The statute requires that the evidence sought be “for use in” a foreign proceeding. A question arises when the foreign case isn’t pending yet. The court distinguished cases that were merely fishing for information to see whether a foreign case was possible, noting that Biogen had already asserted infringement elsewhere and was looking for details about the who, what, where, and when of the infringemen in Italy.

Sandoz also raised a question about whether the target of the subpoena was “found” in Delaware, as the statute requires. It argued that Biogen was actually seeking evidence from Sandoz Int’l GmbH or other entities. But as the judge recognized, the subpoena was directed to Sandoz, Inc., which clearly is found in Delaware. And documents that are created by one entity in a global enterprise can of course be in the possession, custody, or control of other entities in that global enterprise, or their agents. The court found this last point “convincing,” which I was happy to see, because all too often respondents that could obtain documents from their affiliates with a phone call or a touch of a button raise highly technical arguments about where the documents are located.

The court went on to do a standard Intel analysis and found that all the factors favored the application. It also considered Sandoz’s arguments that even though all the Intel factors favor discovery, the court should have denied the application on the grounds that it was inconsistent with the twin aims of Section 1782: assisting litigants in foreign cases, and encouraging foreign states to provide reciprocal assistance to litigants in US cases. Of note, the fact that the documents were located in Europe did not give rise to any real question.

1. It’s always possible to ask a US court to modify a protective order when this situation arises. But such a request can lead to accusations of sandbagging, and so sometimes I think it is best to bring a new Section 1782 application. ︎

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The allegedly wrongful “removal or retention,” which is key to the Convention analysis, occurred when the wife refused to bring the children for the previously agreed visit to Canada, and the question was whether the children were then “habitually resident” in the United States, or in Canada. The court noted the lack of a shared parental intent, the temporary nature of their visa, and traditional factors such as their drivers’ licenses, the situs of their joint accounts, the location of their personal property, etc., and found that the lower court had not clearly erred.

Next, the court turned to the wife’s affirmative defenses, including, notably, the defense of acquiescence. The focus was on the husband’s counterclaim in the divorce case, which asked the Massachusetts court to award custody, and on his entry into stipulations in the Massachusetts case. While a “a clear and formal consent order by the non-U.S. parent agreeing to let a state court decide final custody” would be enough to show acquiescence, the doctrine in narrow, and the court found that the husband had not acquiesced.

Friend of Letters Blogatory Melissa Kucinski, author of the Family Law Across Borders blog and one of the real experts, has criticized Judge Lipez’s concurring opinion:

Here is the problematic part of the waiver-acquiescence discussion in the concurrence. It framed the discussion around the custody case, making an argument that if a non-retaining parent enters into a consent order (but not a counterclaim) in the state family court case, ceding the right to “have jurisdiction for custody proceedings determined under the Hague Convention”, it is a waiver. But, there are significant issues with this statement and the extraneous, potentially unnecessary language in the concurring opinion. This blog urges you to read the Uniform Law Commission’s Commentary distinguishing custody jurisdiction from a request to return a child under the Hague Abduction Convention. The two are different. A Hague Abduction Convention suit does not determine where a custody suit may be filed – it is not a jurisdictional treaty. Furthermore, a parent cannot consent to subject matter jurisdiction in a state court case. Custody jurisdiction is subject matter jurisdiction. Furthermore, and unique to this particular case, Massachusetts is the only state that still uses the old version of the uniform act on custody jurisdiction. So, what might be said for Massachusetts may be different for every other U.S. state in terms of custody jurisdiction.

I chime in simply to add that Massachusetts is behind the times across the board in its adoption of the most modern versions of uniform laws in private international law and related areas. We still have the Uniform Foreign Money Judgment Recognition Act on the books and are in the small minority of states that require reciprocity as a condition for recognition of a foreign judgment. And we have not yet adopted the Revised Uniform Arbitration Act, let alone a statute better suited to international arbitration. I hope our legislature will make modernization more of a priority than it has until now.

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The case of the day is Bonomi v. JPMorgan Chase Bank, NA. John Bonomi, a retired New York lawyer, bought what he describes in his complaint as “one of the most magnificent homes on Cape Cod.” The nearly 5,600 square foot home “stood alone on a bluff, with unobstructed views of the Cape Cod Bay and the Wellfleet Harbor.” According to Bonomi’s enjoyable complaint (I don’t mean to make light, as Bomoni alleges he was suffering from bipolar disorder and was suffering a “severe manic episode” at the relevant times), the property became an “irrational talisman for him” and was “seductive … especially to a person not mentally able at the time to process the concomitant risks.” Unfortunately, according to an article in the Cape Cod Times, the house sat “atop an eroding dune between Wellfleet Harbor and Cape Cod Bay. The home [had] been getting closer to the edge as the dune erodes.” The prior owner had listed the property, according to the Provincetown Independent, listed their “endangered house” for $5.5 million. At the time the house sat “less than 14 feet from the edge of an eroding costal bank,” which was eroding “at a rate of 6 to 7 feet per year.” That sounds bad.

Unsurprisingly, Bonomi made the only offer, or at least the only offer at the list price. He borrowed $3.85 million from JPMorgan Chase to finance the purchase. At the time, the prior owners had asked for the town’s permission to “build a stone revetment on the seashore to halt the erosion.” But the town had denied the application, and a lawsuit was pending. Bonomi knew this at the time of the purchase, but he was “unable to appreciate the true import of these facts due to his illness, and was convinced that he easily could persuade the Town to change its mind, when all others had failed.” But as the erosion continued, Bonomi realized he could not wait for a decision in the lawsuit and “was forced to demolish the home.” Ultimately the court affirmed the decision of the town’s conservation commission denying permission. Bonomi then sued JPMorgan, the mortgagee, seeking a declaration that he “lacked the legal capacity to enter into the Mortgage and Note.” The case is pending in the US District Court for the Southern District of New York: Bonomi lives in New York, and JPMorgan is a national bank.

The case has obvious interest for lots of reasons, including the claim of lack of capacity and the obvious question about Chase’s underwriting. But to me the most interesting thing about it is the allegation in the complaint that although the mortgage provides that it is governed by Massachusetts law, “Notwithstanding this provision of the Mortgage, whether Plaintiff has the right to void these contracts due to lack of mental capacity at the time of signing is to be determined in accordance with the law of the State of New York.”

Really? It seems to me that the validity of a mortgage is almost necessarily governed by the law of the situs. The rule of the Restatement is actually a little bit more nuanced than that. Section 228 of the Restatement (Second) of Conflict of Laws provides, first (and contrary to the way conflicts work in most areas of law) that “Whether a mortgage creates an interest in land and the nature of the interest created are determined by the law that would be applied by the courts of the situs.” In other words, the forum should not apply its own conflicts rules, but the conflicts rules of the situs. That’s a rare example of renvoi in practice. Second, the Restatement notes that the courts of the situs generally will apply their own law to the question. And the Restatement (§ 223, cmt. b) gives an example of just how strong this principle is, even in cases involving, for example, capacity, where it’s not obvious that the situs has the dominant interest.

Suppose that in state X, where both A and B are domiciled, A gives B a deed to land in state Y and that thereafter the question arises before a Y court whether A had the requisite capacity to do so. It could be argued in support of application by the Y courts of X local law to determine this question of capacity that X is the state which has the dominant interest in the determination of this issue. But such a decision would complicate the task of title searchers and of other persons concerned with Y land. Thereafter, they could not always safely restrict their attention to Y local law in determining the capacity of a transferor of Y land. 

It seems to me there are two reasons why this principle should apply with special force. First, Massachusetts is probably the purest example left of a “title theory” state, where a mortgage is not just a lien on real property, but a conveyance of legal title to the property.¹ Second, title to the land in this case is registered title, which means that Massachusetts has a particularly strong interest in the correctness of the mortgage deeds and other documents that have been registered and that concern the title to the property.

Since the case is still new, this issue hasn’t been fleshed out yet. But I assume Chase will eventually say that Massachusetts law, not New York law, should govern capacity here.

1. In our law, a mortgagee can foreclose (remember that “foreclose” is shorthand for “foreclose the equity of redemption,” which helps remind us what a mortgage really is) without having to bring a lawsuit against the mortgagor (although federal law, specifically the Servicemember Civil Relief Act, does mean that the mortgagee must bring a case in the Land Court to establish that the mortgagor is not a servicemember entitled to the protections of the law). ︎

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Our constitution provides: “Nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” That is the protection against double jeopardy. It’s not an American invention. The common law had a wonderful name for the plea that since a defendant had already been acquitted of a crime, or even since he had already been convicted of the crime, he couldn’t be tried for the same crime again: autrefois acquit (or autrefois convict).¹ This rule has an astonishing consequence. Once a jury finds a defendant not guilty, the defendant is not guilty, no matter how flagrantly wrong the verdict is.² So the jury has the absolute and unreviewable power to return wrong or unjust verdicts. This is often called jury nullification.

There have been some famous cases of jury nullification in American history. Maybe the most famous was the Zenger case, in the early eighteenth century. Zenger published a newspaper that criticized the governor of New York. The grand jury refused to indict him, but the attorney general charged him with seditious libel. At the time, truth was not a defense to the charge. But Zenger’s lawyer, Andrew Hamilton (no, not that Hamilton) argued to the jury that it should acquit Zenger because what he had written was true. The jury acquitted him, even though based on the law of the day, he was clearly guilty.

That’s great, but jury nullification has also been used for shameful purposes. As Judge Bazelon noted in United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972):

One often-cited abuse of the nullification power is the acquittal by bigoted juries of whites who commit crimes (lynching, for example) against blacks. That repellent practice cannot be directly arrested without jeopardizing important constitutional protections-the double jeopardy bar and the jury’s power of nullification.

No one doubts that the power of jury nullification exists. The question, if there is a question, is whether judges should tell juries that they can ignore the law, or if lawyers should be allowed to tell juries that they can ignore the law.

This brings us to the case of Rajiv Menon KC, an English barrister who defended members of a group called Palestine Action, who in 2024 “drove a repurposed prison van into the compound” of Elbit Systems UK, which was part of Elbit, the Israeli defense contractor, “breached security fences, entered the facility and caused damage to property and equipment,” and who also had “confrontations with security personnel and police.” Palestine Action was proscribed as a terrorist organization after its members “broke into RAF base Brize Norton in Oxfordshire and spray-painted two military planes red.” The Court of Appeal upheld the government’s decision to ban the organization, reasoning that while Palestine Action “is engaged in peaceful as well as non-peaceful protest,” it is

a fundamental mistake to overlook the fact that Palestine Action overtly promotes unlawful violence amounting to terrorism. It is not, as it claims, a direct action civil disobedience protest group like the suffragettes operating transparently in the open. It is a covert organization that operates using secret cells to avoid the detection and prosecution of those using violence to destroy the property of third parties. Palestine Action’s activities have caused injury as well as property damage.

This brings us to Mr. Menon. At the trial of the Palestine Action members, the judge had already told the jury that there was no defense of justification in the case, as Mr. Menon acknowledged in his closing speech to the jury, quoting the judge’s remarks:

As I told you when you asked a question about this, if a defendant believed that they were morally justified in doing what they did to prevent what they thought was a genocide, then that would not amount to a lawful excuse. There is no evidence in this case of anything that is capable in law of amounting to a lawful excuse, so that is not something that you need to consider.

But he went on to tell the inspiring story of William Penn, a Quaker, who was prosecuted for preaching outside an Anglican church. The judge directed the jury to find Penn guilty, because, under the law of the time, he was guilty, but the jury refused, finding him not guilty. The judge remanded the jurors in custody for two days, without food and water. They still refused. They were then fined for contempt of court. Most of the jurors paid the fine, but one, Bushel, refused, and was kept in prison. He eventually was released on a writ of habeas corpus, “establishing,” as Mr. Menon told the jury, “the right of a jury to return a verdict without fear of punishment from the trial judge.” He went on to argue that juries have the right to return a verdict according to their conscience, and concluded:

Putting that all together, members of the jury, you can find Charlotte and her co-defendants not guilty of criminal damage. It is a perfectly fair and proper verdict for you to return in this case.

The jury acquitted the defendants of the most serious charge, aggravated burglary, and could not reach a verdict on the other charges. The judge, however, referred Mr. Menon for consideration of whether he should be tried for contempt of court. I won’t review the twists and turns of the case, beyond saying that a decision on whether the charges can proceed is pending.

The Menon case has engaged a lot of interest, including from human rights groups, pro-Palestinian activists, etc. The case raises serious issues of what we would call “zealous advocacy” (perhaps in England the term is a little different). Lawyers need to be free to advocate zealously for their clients in court. I agree with that entirely.³ But there is another frame for understanding what’s going on: the failure of European courts in some cases to deliver justice to Jews and, as here, to Israelis. Some examples:

• The Sarah Halimi case. The killer, Kobili Traoré, killed Sarah Halimi, a retired French doctor, in her apartment, shouting “Allahu akbar” during the attack and claiming that he “killed the Shaitan” afterwards. The court held he was not criminally responsible, as he had consumed cannabis before the attack.
• The René Hadjadj case. The killer, Rachid Kheniche, was convicted of throwing his elderly Jewish neighbor, René Hadjadj, a retired tailor who had taught him how to sew, from the 17th floor of their apartment building. While the court convicted Kheniche, it did not find an antisemitic motive, which would have been an aggravating circumstance, and it found that his “discernment” had been impaired, leading to a lighter sentence.
• The Geneva stabbing. An unnamed suspect who had stabbed a Jewish man in front of his family was held unfit to stand trial, in part because he had an “irrational fear of an international conspiracy.”
• The Bourdon stabbing. The suspect stabbed a 58-year old neighbor, later telling police he did it because he wanted to “kill a Jew.” The irony is that the neighbor was not a Jew. The suspect was never tried because he was found to have psychiatric problems.

These are not, of course, jury nullification cases or even cases about lawyers’ conduct. But where there is a will there is a way, and the cases suggest that there is sometimes a will, sometimes on the bench, sometimes in the bar or in society more generally, to find non-responsibility when the victims are Jewish.

There is a “law” question here that only English lawyers can answer. Is a contempt proceeding appropriate? If not, is there some other consequence for Mr. Menon’s encouragement to jurors to nullify? But there is also a “morals” question. Was Mr. Menon like the lawyer suggesting to the jury that it should not convict a journalist of seditious libel or should not convict a Quaker of preaching? Or was he like the lawyer suggesting to the jury that it should not convict a white man of lynching a black man?

Actually, that’s not quite right. The advocate is not responsible for the moral rightness of his client’s cause and does not endorse it just by advocating on his client’s behalf. That’s just as true in England as it is here, and maybe more true insofar as barristers in England are subject to the cab rank rule, whereas lawyers here are free to turn down work from distasteful clients if they wish.

But here, too, there is another lens, a lens that focuses on the people and groups who are supporting Mr. Menon as a matter of human rights and justice and so forth. Suppose a British Jew had broken in to the offices of “Friends of Hamas” in London and destroyed equipment the group was using to accept credit card donations. The vandal claimed his acts were justified by necessity: he was trying to prevent the genocide of the Jews in Israel and the destruction of the Jewish state. Suppose Mr. Menon had said to the jury, “I know the judge just told you that necessity is not a defense to the charge, and you have to accept that, but I want you to remember that you have the power to acquit this defendant no matter what the law says, and here is a stirring story about British history to inspire you to do just that.” If the judge referred the lawyer for discipline or a contempt charge, would leading chambers of barristers and “luminaries from across the human rights world” be gathering to express concern and solidarity? I’d like to think the answer is yes, but everything about the last three years suggests to me that the answer is probably “no,” or at best, “meh.”

1. As with a lot of our bill of rights, it’s a good thing that the Founders thought to write it down. In England and Wales (I’m going to write that way once just to show I know the technicality, and I’m going to write just “England” from now on) I gather that the old rule has been modified by statute, and that today an acquittal can be quashed and the defendant retried if there is “new and compelling evidence” of guilt. ︎
2. Or in American criminal law–I don’t know if it’s the same in England–once a judge acquits a defendant before the case goes to the jury–the defendant is not guilty, he cannot be retried, and the government cannot appeal. I saw this happen once, when I was a law clerk. This was in the winter of 2001. My judge was hearing a case of receipt of illegal drugs that had been concealed in the leg of some furniture and then shipped to the defendant. I forget the details, but what I remember is that the judge felt strongly that there was insufficient evidence to sustain the charge, and that she directed an acquittal rather than sending the case to the jury. I remember thinking, “what is happening?” I have never seen a lawyer as angry as the assistant US attorney who was trying the case. The more usual practice is to send the case to the jury and then, if the jury returns a guilty verdict, enter judgment notwithstanding the verdict. That decision, unlike the decision my judge made, is appealable. ︎
3. On the other hand, there are limits to what a lawyer can say in court, especially in front of a jury. If I mention, in a jury’s hearing, highly probative but inadmissible evidence (especially if the court has already ruled in limine on its inadmissibility), I’m going to find myself in some kind of trouble. Or if I make an argument to a jury that is clearly impermissible, I may find myself in trouble. ︎

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The case of the day is Salinas v. Astor Asset Management 3 Ltd. [2026] EWCA Civ 940. What an interesting case. Ricardo Salinas Pliego was a “wealthy Mexican businessman.” He was looking to borrow money in 2021, and he was introduced to “Gregory Mitchell” and “Thomas Mellon,” who were supposedly “senior representatives of Astor Capital Fund.” In fact, Mitchell and Mellon were Vladimir Sklarov, one of the defendants, and his associate, Skachkov. Astor entered into an agreement with one of Salinas’s companies to lend $115 million, with Salinas acting as guarantor and offering his shares in another company, Grupo Elektra, as security. The shares were worth $415 million, and the custodians, Weiser and Tavira, apparently transferred the shares to the defendants and sold, yielding about $270 million in value, above the $115 million lent, for Sklarov. The claim was that Sklarov and the other defendants defrauded Salinas by falsely representing that Astor was a “legitimate and honest financial institution connected to the Astor family,” when in fact the defendants were “creatures of Mr Sklarov set up pursuant to a fraudulent scheme to expropriate the shares.” The defendants argued that the contract permitted them to “rehypothecate” the shares and denied any fraud.

Salinas sought summary judgment, and the judge, without deciding, suggested that the case for fraud was “apparently strong and substantial, perhaps unanswerable.”

But even a plaintiff with a very strong claim can screw it up. Grupo Elektra had hired Black Cube, a litigation support and investigation firm, to obtain evidence. Black Cube targeted “X,” a solicitor for the defendants and a newly promoted partner of a law firm, and the judge found that “the claimants intended or expected” to seek information from X via “unethical conduct.” Black Cube’s “operator”, using the name “Marco Ortelli,” posed as the representative of a potential new client seeking representation in an arbitration against the government of the UAE. X was induced to travel to Amsterdam to meet with “Ortelli,” who persuaded X to drink more than he usually did. X then disclosed confidential information that didn’t end up in evidence, but that did paint “a clear picture of the impact of the litigation on Mr Sklarov, including the severe impact of the freezing orders obtained by the claimants,” and that “would have been of considerable (albeit unquantifiable) value to the claimants in deciding their tactics in the litigation with an understanding of where pressure could most usefully be applied. It was also information which, once learned, could not be unlearned.” X, unsurprisingly, faces disciplinary proceedings and “professional ruin.” It was the claimants and not the respondents who referred him for discipline, which is odd.

In today’s decision, the court held that the claimants’ conduct amounted to an abuse of process. ” The main excuse was that X was wrong to disclose the information. That did not impress the court:

It makes no difference that the solicitor, X, was obviously at fault in revealing information that he should not have revealed. That was the whole object of the Black Cube operation, which the claimants sanctioned and of which they now seek to take the benefit. It is absurd for the claimants to submit, as they submitted forcefully before the Deputy Judge and rather more faintly in this court, that their conduct should not be regarded as abusive because the operation should have been unsuccessful—in Mr Wardell’s words, that ‘there should have been a nil return’. The claimants were paying millions of pounds for Black Cube’s expertise in extracting information which should not have been available to them for use in the litigation. They expected and intended to benefit from such information, not to be told that the operation had been unsuccessful and there had been a ‘nil return’.

The harder question was what to do about it, given the strong claim for fraud. The court agreed that the claimant should not be allowed to seek summary judgment, but should its claim be struck out altogether? No, the court said, but merely disallowing a summary judgment application was insufficient given the gravity of the wrongdoing. So the court discharged the freezing order. That may turn out to be hugely important for obvious reasons.

The case reminds me of In re Crossen, 450 Mass. 533 (2008). The case was a part of the epic Demoulas lawsuit, a fight among the family members who owned the Market Basket grocery chain that became one of the leading precedents in Massachusetts’s law of fiduciary duty. A well-known Boston lawyer, Crossen, was disbarred after he had gotten involved in a scheme similar in some ways to the scheme in Salinas. He wanted to show that the judge, Maria Lopez, was biased against his clients. He learned that his client had hired a lawyer and two investigators to meet, using aliases, with the judge’s law clerk, on the false pretext of interviewing the clerk for a job. The idea was to get the clerk to say that the clerk, not the judge, had written an adverse decision in the case. And the clerk obliged. Crossen, learning of this, decided to record an interview with the clerk by audio, but because it is illegal in Massachusetts to record someone in secret, Crossen arranged for the clerk’s second “job interview” to take place in New York. Ultimately, Crossen’s clients did not use the information gathered in the motion it made asking the judge to recuse herself. Nevertheless, Crossen and members of his team confronted the clerk, at a third sham job interview, explaining their ruse:

Crossen told the law clerk that he could not control what his clients would do with the information they had; that if the law clerk did not “help him” there would be a “missile” fired “that’s out of my control and it’s off, and I don’t know where it goes and what it ends up doing”; that he, Crossen, needed a “candid conversation” with the law clerk “about what really happened here.”

The law clerk, obviously and understandably upset, spoke with the authorities, and at their request secretly taped his next discussions with Crossen. The law clerk and his counsel, another well-known Boston lawyer, held a press conference exposing the affair, and the Bar Counsel, who prosecutes disciplinary matters in Massachusetts, brought charges against Crossen and others. Crossen was disbarred, though he was not criminally prosecuted.

It seems almost trite to state the lesson of these cases. Don’t lie. Don’t have others lie for you. It is sad to see talented lawyers get this one wrong.

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For the 250th anniversary of American independence, I’m going to do three things that Americans love to do: give an ode to the common law, speak ill of our political leaders, and express optimism about the future.

The common law. We do a pretty good job of keeping the spirit of the common law alive. In an age of statutes and regulations and historical illiteracy, we also have lawyers and judges who are trained to think in the ways of the common law and who know the basics of our legal history. That is why our courts can decide, as they did last week in Chatrie v. United States, that the government conducts a search when it gets your location data from Google, even though you “volunteered” to share the data with Google. New social realities, new rules, but wearing the same doctrinal clothes. Common law!

At common law, basically everyone born in England was an Englishman. Although the antebellum Supreme Court, in Dred Scott v. Sandford, rejected the common-law rule as it should have applied to black Americans, in the aftermath of the Civil War, we adopted the Fourteenth Amendment, which restated the common law rule: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” In recent years, there has been a weird and unsettling effort on the right, catalyzed by Donald Trump and abetted by smart people who should know better, to say that children of people who are in the United States illegally are not citizens by virtue of their birth here. I’m not going to explain their theory or why it is not just implausible but plainly wrong or why it’s shocking that it wasn’t unanimously rejected by the justices of the Supreme Court in Trump v. Barbara, decided just last week. But by the barest of margins, the Court reaffirmed that the Fourteenth Amendment constitutionalizes the rule of jus soli, which applies almost everywhere in the New World. Here is Chief Justice Roberts’s peroration, which is set off from the rest of the opinion by three asterisks, like this, “* * *”, so you know it’s the good part:

Again and again, the dissents cast the common law as “feudal,” “medieval”—a remnant of “the darkness of the middle ages.” Post, at 4–5, 45, 54, 64, 75–78 (opinion of THOMAS, J.); see post, at 1 (opinion of GORSUCH, J.); post, at 2, 4, 27 (opinion of ALITO, J.).

That was not the view of the Reconstruction Congress. Where the dissents see feudalism, the Framers of the Fourteenth Amendment saw emancipation. By the time of the Glorious Revolution in 1688, in fact, the tie created by birth was less a “duty” than a “right”—the foundation of the “ancient liberties” of “free-born subjects.” H. Muller, Subjects and Sovereign 16–18, 57–58 (2017). That is why Blackstone described the “privileges” owed to the “natural-born.” 1 Blackstone 361–362. That is why the colonists demanded the “rights of Englishmen” more than 250 years ago. B. Bailyn, The Ideological Origins of the American Revolution 192 (1967). And that is why abolitionists lauded the “ancient and universal” rule of citizenship by birth alone as “an ordinance of Heaven.” Yates 36–37; see also M. Jones, Birthright Citizens 89–107 (2018).

Citizenship, then and now, was the right to have rights—to freely participate in our political community. The Framers of the Fourteenth Amendment extended that promise to “every free-born person in this land.” Cong. Globe, 39th Cong., 1st Sess., at 600 (Sen. Trumbull). We keep that promise today.

I’m going to combine the second and third items on my agenda for this post, speaking ill of our politicians and expressing optimism. We’re going through a very rough patch now. We’re being led at the national level by the most corrupt, the least attached to our civic norms, and, I’m sorry to say, the dumbest and least effective. I’d hesitate to say that I’d almost rather have effective malignant government that what we have now. Our other political actors have been feckless and cowardly in their refusal to exercise their powers to deal with the problem. And the opposition party seems to be a spent force with little to inspire Americans’ confidence. We have demoralized our people at home and undercut and embarrassed ourselves abroad. So if, at this 250th anniversary of our independence, we have reached the end of America as the leader of the free world and the end of the line for a government that at least nods to civic virtue—an end that our founders would have told us is inevitable in the long run—then I hope at least we can accommodate ourselves to it with more grace than most of the great states that came before us ever managed to do.

However, at least for the last two hundred fifty years, it’s never been a great bet to bet against America. This summer in Boston, the heart of revolutionary America all those years ago, it’s been great to see our own country through the eyes of the thousands, or maybe by the time it’s over, millions of visitors who have traveled here for the soccer, or for the Fourth of July celebrations, or for the tall ships coming to town in the next few days. I’ve heard countless variations on a theme: “I was worried about coming to America, and I was expecting a dystopian hellscape full of malign cops and ICE agents, mean-spirited, gun-toting, sedentary junk food eaters, and a lot of other doom and gloom. But the people were warm and welcoming! The police were there to help us! The trains even worked! This is the America we miss!” That’s the country I know and love, and if we can just get past this rough patch and agree never, ever to do it again, I have hope that we’ll have yet another new birth of freedom as we start our next 250 years.

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At the sole election of [Columbia], any disputes shall be resolved by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association.

Cannistraro did work under the subcontract and made monthly requisitions for payment. It also submitted change order requests, which Columbia rejected. Nevertheless, Cannistraro sent invoices for nearly $1 million for payment for the change order work. Columbia rejected the invoices, but it did not include with its rejection a certification under Massachusetts’s “prompt pay” statute, which requires a certification that the rejection was made in good faith. Cannistraro sued for the amount of the invoices, and Columbia moved to compel arbitration. The court granted the motion, and the case was then arbitrated. The arbitrator decided, apparently in an interlocutory order and not in the final award, that under Massachusetts law, the certification of good faith was essential, and that without it, the invoices were deemed to have been approved. He ordered Columbia to pay the invoices. Columbia paid, but it sought and received permission to assert a new counterclaim seeking recoupment. The arbitrator then held an evidentiary hearing, found that the recoupment claim was not barred by the prompt pay statute, that the invoices were not fair and reasonable, and that Columbia was entitled to damages. Cannistraro moved to vacate the award under the Massachusetts Uniform Arbitration Act, arguing that the arbitrator had exceeded his authority. After that, but before the judge acted on the motion to vacate, the Supreme Judicial Court held that a contractor that had not paid an invoice could not invoke a common law defense to a subcontractor’s breach of contract claim if the contractor had not paid the invoice. In light of the new decision, the judge found that the arbitrator had exceeded his authority. The SJC granted an application for direct appellate review (which means the case went directly to the SJC, bypassing the intermediate Appeals Court).

Massachusetts precedent provides that an arbitrator exceeds his authority “by granting relief beyond the scope of the arbitration agreement, by awarding relief beyond that to which the parties bound themselves, or by awarding relief prohibited by law.” But the SJC explained that “relief prohibited by law” is not the same as relief resulting from an “error of law.” And mistake of law is not a basis for vacating an arbitral award. Rather, it is relief that “offends public policy” or “directs or requires a result contrary to express statutory provision.”

The decision was not contrary to an express statutory provision, even though it was contrary to the statute as the SJC later interpreted it. Public policy is a squishier basis for vacating an award, and the court noted the importance of preserving the deference accorded to awards to avoid “judicializing” the arbitration process. It explained that public policy had been almost exclusively a way of reversing arbitral decisions requiring the government to reinstate public employees who had “engaged in malfeasance.” The exception has to be kept narrow, and the court found it hadn’t been met. The court’s explanation is, in my view, not terrific: the discussion focuses on the reasons why the arbitrator’s decision about the law and the facts was reasonable. It’s not really clear what public policy was said to be violated. In any event, the court came to what seems clearly to be the right decision: it reversed and remanded for entry of a judgment confirming the award.

The post Case of the Day: JC Cannistraro LLC v. Columbia Construction Co. appeared first on Letters Blogatory. Letters Blogatory by Ted Folkman and contributors is © 2011-2024 and is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License. Images may be separately licensed.