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.

The post Case of the day: Giguère v. Tardif 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.

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). ︎

The post Case of the Day: Bonomi v. JPMorgan Chase 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.

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. ︎

The post Jury nullification and the case of Rajiv Menon 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.

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.

The post Case of the Day: Salinas v. Astor Asset Management Ltd. 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.

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.

1. Everyone agrees that the Convention is exclusive, which means that when it applies, you have to use one of the methods of service that it authorizes or at least permits. This is the holding of Volkswagen, and the distinction between authorized and permitted methods is found in Water Splash v. Menon.
2. There is no provision in the Convention that expressly authorizes or permits service by email. If any provision does the trick, it’s Article 10(a), which permits service by postal channels—but only when the state of destination has not objected.
3. Countries like China and India have objected. Since the only possible provision that permits service by email can’t be used, the service is improper under the Convention.
4. A court cannot use FRCP 4(f)(3) to authorize a method of service that is inconsistent with a treaty.

Or more briefly, like this:

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

The case begins with some questions of waiver and timeliness that are not of much general interest. It considers a couple of ancillary Convention questions that are of some interest. First, the court notes that there was a real issue about whether the Convention applied at all, given that the defendant’s address in China was unknown. It remanded for further proceedings on whether the plaintiff had been sufficiently diligent to make that argument stick. The court also rejected a creative but (in my view) obviously wrong argument that emailing the defendant a link to the documents was not a transmission of the documents themselves. If you haven’t transmitted the documents, then how can you really say you have effected service? After all, the plaintiff did not claim it had served the documents fictitiously or by publication.

But leaving those issues aside, it was gratifying to see a court stick the landing and get the right answer for the right reason. The issue is not free from doubt: the Florida state courts continue to get the issue wrong, and the Florida Supreme Court declined to hear an appeal from a case in which I had indicated the intent to submit an amicus brief for Professor Huo Zhengxin explaining why the Florida rule offends the interests of states that have objected under Article 10. But the trend is very, very good.

1. Leaving aside the academic possibilities of Article 19, etc. ︎

The post Case of the Day: Kangol v. Hangzhou Chuanyue Silk Import & Export 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.

The case of the day is Whoop, Inc. v. Serinity Group (D. Mass. 2026). The case is, in a sense, routine, but I wanted to write about it because it’s a Massachusetts decision, because I like the “Whoop” company name, and because it illustrates a couple of familiar but still useful points about service by email.

Whoop, the Boston-based manufacturer of fitness wristbands, sued Serinity, a French company that did business as Aurora, for trade dress infringement, seeking damages and an injunction under the Lanham Act, common law, and Mass. Gen. Laws c. 93A, our statute on unfair and deceptive acts or practices in trade or commerce.

Whoop first sought to serve process on Serinity via a huissier, who tried to make service at the French company’s registered address, but who reported that the company was no longer at that address. Whoop then sought leave to serve process by email, and the court obliged.

Seeking to serve process by huissier was appropriate and in fact a good way to go. France has not objected to service by alternate means under Article 10 of the Service Convention. Thus the Convention permitted Whoop to attempt service “directly through the judicial officers, officials or other competent persons of the State of destination.” A huissier is undoubtedly the officer the drafters of Article 10 had in mind. And FRCP 4(f)(2)(A) authorizes service by the means prescribed by French law.

Once it became clear that Aurora’s physical address was unknown, the Convention had no further role to play. Under Article 1, the Convention simply doesn’t apply if the address of the person to be served is unknown. Some courts impose a duty of diligence here, but there’s no doubt Whoop satisfied whatever obligation of diligence it may have had by attempting service at the address Aurora had registered with the French authorities.

Thus the only issue was whether, under FRCP 4(f)(3), the court should, in its discretion, allow service by email. The judge said yes, since the email address to be used was published on Aurora’s website and Aurora used the website to take orders. The judge also observed that an earlier email sent to that address had not been returned as undeliverable, though I think that is a weak piece of evidence without more technical detail, as it relies on the assumption that Aurora is using a well-behaved email server.

Because France, unlike, say, China, has not made an Article 10 objection, it is worth pointing out that even if Aurora’s physical address were known, and even if the Convention therefore applied, service by email might nevertheless work. Your view on that question will turn on whether you think that commercial email as we know it in 2026 is within the scope of the “postal channels” referred to in Article 10(a).

The post Case of the day: Whoop v. Serinity Group 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.

The case of the day is Fox Corp. v. Media Deportes Mexico S. de R.L. de C.V. (S.D.N.Y. 2026). The case raises a perennial Letters Blogatory question: when the Hague Service Convention applies, can you serve a temporary restraining order or a preliminary injunction on a defendant in a way that you couldn’t serve the summons and complaint? For example, in a foreign state that has objected to service under Article 10 of the Convention, can you serve the TRO or the preliminary injunction by email?

In today’s case, Fox had licensed Media Deportes Mexico to broadcast sporting events in Mexico. It claimed that MDM had breached the license agreement by obtaining an injunction, in a Mexican court, barring Fox from using the Fox Sports trademarks in Mexico. Fox sued in New York, seeking a TRO to restrain MDM from using the Fox Sports trademarks in Mexico or in the US, and from prosecuting its injunction case in the Mexican courts. The court issued the TRO and authorized Fox to serve the TRO electronically, which Fox did. Fox then asked the court to find MDM and related entities, including MSD, in contempt of court for violating the TRO. Eventually, MSD appeared in the New York case and argued that the service of the TRO by electronic means was impermissible under the Convention. In the meanwhile, the Second Circuit decided the Smart Study case, which held that when the Convention applies and when the state of destination has objected to service by alternate means, service by email is impermissible.

The court rejected MSD’s argument. The judge grounded his analysis in part on the last sentence of Article 15 of the Convention. Here is Article 15 (I’ve omitted the second paragraph and bolded the key language):

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that—

the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

* * *

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

That last sentence is obviously key. But I am not certain that it means what the judge thought. I do not think the sentence means, “In case of urgency, the judge can authorize methods of service that the Convention otherwise would not permit.” Instead, I think it means, “The judge can, consistent with the Convention, order provisional or protective measures, even if there is no evidence that the service on the defendant has been accomplished.” The Convention, in other words, is no bar to issuance of a TRO directed to a defendant where there is no proof of service, even though it may, under Article 15, be a bar to issuance of a default judgment against a defendant in such circumstances.

Still, US law of course requires notice to a defendant subject to a TRO before the defendant can be found in contempt for violating the TRO. The trouble is that a TRO implies that there is a need for emergency relief and thus a need to get notice to the defendant very quickly. How to square that need with the Convention?

It seems to me that the key is in Article 1, which provides that the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” If I want to serve a defendant with a summons and complaint, I can’t just send a letter giving the defendant notice that he had been served, even if I include the summons and complaint with my letter.¹ It’s not enough for the defendant to read about the lawsuit in a newspaper. But if I want to make sure a defendant subject to a TRO has notice of the TRO, I think I could simply write him a letter. Or, I suppose, I could put an ad in his local newspaper. What matters, for satisfying due process, is that the defendant has actual notice. So even if I send the TRO, which is undoubtedly a judicial document, by mail, I am not sending it abroad for service. I am just providing notice. That’s the reason why “serving” it (that is, sending it) by email is permissible.

The judge also suggested a reason to distinguish this case from Smart Study. Smart Study, he wrote, involved entry of a default judgment, and this case didn’t. Perhaps the point is that a violation of the Convention really only matters to the defendant when a judgment enters that rests on the violation. But when the Convention applies, it applies, and I think a defendant threatened with contempt of court would disagree with the thrust of the judge’s point. It seems to me that my reading of Article 15 avoids the need to make a point like this.

In short, I think the judge got to the right result, but I think there is a much better and clearer way to get there.

1. Sometimes service by mail is permissible, of course! ︎

The post Case of the day: Fox Corp. v. Media Deportes Mexico 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.

The case of the day is Petersen Energía Inversora v. Argentine Republic (2d Cir. 2026). This was the appeal from the $16 billion dollar judgment in favor of minority shareholders of YPF, who sought damages after Argentina nationalized the company in 2012. Although there were two consolidated cases, I’m going to focus just on one, brought by Petersen.¹ Petersen sued in New York, bringing claims for breach of contract under Argentine law. Their claim was that Argentina was liable because it had failed to make a tender offer before expropriating the shares of the majority owner, Respol, as YPF’s bylaws required. Petersen had pledged its shares to secure loans it had taken to buy them, and it planned to use YPF dividends to pay the lender. But when Argentina expropriated Repsol’s shares, the company stopped paying dividends, so Petersen could not pay its debts. It sought bankruptcy protection in Spain, and in the bankruptcy, it sold a majority interest in its claim against YPF to a subsidiary of Burford Capital, a publicly traded litigation finance firm. In 2018, the Second Circuit denied Argentina’s motion to dismiss on foreign sovereign immunity grounds. Petersen Energía v. Argentine Republic, 895 F.3d 194 (2d Cir. 2018). Usually at Letters Blogatory the FSIA decision is the main event. But this case went the distance and ended with a summary judgment in favor of Petersen on the breach of contract claim, and then a trial on damages. Petersen’s judgment was for $7.5 billion, plus $6.9 billion in prejudgment interest. Burford stood to recover 70% of that, or about $10 billion.

Everyone agreed that the merits were governed by Argentine law, and I don’t have a lot to say about the substance of the Second Circuit’s discussion of the merits, except to say that to this American lawyer, it seems odd to claim that when one shareholder causes a corporation to violate its bylaws, it is therefore liable for breach of contract to another shareholder for damages flowing from the violation. As the court’s opinion observes, the obvious remedy in a case like that is a corporate law remedy. That would mean suing in the courts of Argentina, which for obvious reasons Petersen was not keen on doing.² But isn’t the answer to that just to shrug your shoulders and say that if investing in Argentina is just too risky, perhaps you should do something else with your money?³

A lot of the coverage has been about the implications for Burford in losing its risky bet, and about the implications for big-time litigation finance generally. Given the Second Circuit’s en banc practice and the unlikelihoods that the Supreme Court would grant cert. in a case that turns on Argentine contract law, the panel decision is almost certainly the end of the road, which doesn’t mean that we won’t see an petition for rehearing en banc and a cert. petition, given the amount at stake. Burford has said as much in its press release. I’m sure there will also be coverage about increased borrowing costs for countries like Argentina. But there is one point about how to frame the decision that I’d like to note. Burford characterized the decision as “a remarkable abdication of the Second Circuit’s role as a guardian of the rights of NYSE investors.” I really don’t understand that at all. There can be no question that the forum provided a fair hearing to both sides. But everyone agreed that Argentine domestic law governed the outcome, and while it’s possible that the Second Circuit got the law of Argentina wrong, I don’t see why it makes sense for a US court to interpret the law of Argentina with the goal of protecting US investors. The US does a good job of protecting investors by providing fair tribunals and by having stable and investor-friendly corporate and securities laws that the courts interpret in a consistent way. Burford didn’t purchase its stake in Petersen’s claim against Argentina under any naive illusion that it wasn’t taking a very large legal risk (including a collection risk that I don’t discuss here), and I assume that Petersen didn’t invest in the company under the illusion that it was investing in a Delaware corporation.

1. And I’m going to ignore some of the technical stuff about ADRs and the like. ︎
2. I don’t know if it would have been possible to include an agreement to arbitrate in an Argentine corporation’s bylaws. ︎
3. That problem is the reason why we have investment treaties, but this is not a treaty case. Burford’s press release suggests that an investment treaty arbitration is coming. ︎

The post Case of the day: Petersen Energía v. Argentina 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.

If that’s right, then as Ingrid agrees, the most obvious answer is that of course the foreign sovereign can waive the service provisions of the FSIA, just as the foreign sovereign can waive the substantive immunity the statute provides. Note, though, that the statute (§ 1605(a)(1)) expressly provides for waiver of immunity, but it doesn’t expressly provide for waiver of the service provisions. This starts to get at Ingrid’s main point. She observes that there are some procedural rules that parties cannot waive, e.g., deadlines in ordinary civil litigation, which can only be modified with the court’s approval, or limits on the court’s subject-matter jurisdiction. She suggests that the FSIA’s service rules might be similar.

I am not sure the examples of non-waivable rules she cites really make the point, because court control of deadlines and congressional control of jurisdiction do not implicate just the interests of the litigant but rather institutional interests of the court and the state. (The situation is similar to objections under Article 10 of the Service Convention, which in my view anyway cannot be waived because Article 10 exists to protect the interests of the state, not the interests of the litigants). I don’t see that the method of serving process is like that. The FSIA’s rules seem to exist only to protect the interests of the foreign sovereign, so why should the foreign state be forbidden to waive them?

But Ingrid makes another point, which I think is stronger. She points out that under 28 U.S.C. § 1330(b), the court’s personal jurisdiction, in an FSIA case, is tied to whether “service has been made under section 1608 of this title.” She suggests that we can infer that the statute means to tie personal jurisdiction not just to any old method of service, but to service under the statute. That argument has a lot of appeal. But I am not sure it is right. Personal jurisdiction, like methods of service, seems only to implicate the interests of the litigant, so it, too, should be waivable. Another way to think about the statute is to say that the connection between the two sections means that waiver of the service rules is also waiver of the defense of lack of personal jurisdiction.

The post Thought-provoking post of the day: Ingrid Brunk on waiver of FSIA service 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.