Tag Archives: Russia

Editorial: Russia and Wikileaks

Wikileaks logo

Countries spy on each other, as they should. It’s important to understand the politics of allies and adversaries, and the intentions of leading political figures. So while I don’t like the fact that, according to reports of the assessment of the US intelligence community, the Russian government is behind the hack of the Democratic National Committee, I understand it. I hope we take similar steps to get an inside view of Russian political leaders. Jack Goldsmith made just that point today:

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Case of the Day: Delex, Inc. v. Sukhoi Civil Aircraft Co.

The case of the day is Delex Inc. v. Sukhoi Civil Aircraft Co. (Wash. Ct. App. 2016). Delex’s claim was that it had entered into a three-year lease of office and warehouse space in Seattle from a third party on behalf of Sukhoi, a Russian firm. According to Delex, Sukhoi never paid rent, and Delex surrendered the premises to the landlord within a year, and it sued Sukhoi for breach of contract. It served process by registered mail in Russia and by personal delivery to the head of Sukhoi’s foreign activity legal support department. Sukhoi defaulted, and Delex obtained a default judgment for approximately $327,000. The court issued a writ of execution. The sheriff seized Sukhoi’s property, worth $420,000, which, according to Sukhoi, included “highly sensitive US aircraft technology and components.” Sukhoi then sought relief from the judgment and a stay of the sheriff’s sale. The trial court denied the motions, and Sukhoi appealed.
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Case of the Day: Fisher v. Petr Konchalovsky Foundation

Still Life with Grinder
Still Life with Grinder. Credit: artnet.com

The case of the day is Fisher v. Petr Konchalovsky Foundation (S.D.N.Y. 2016). Fisher owns a painting that he claims is Still Life with Grinder, by Russian artist Petr Petrovich Konchalovsky. Fisher’s claim was that the Foundation, based in Moscow, had wrongfully declared the painting to be inauthentic. Fisher sought leave under FRCP 4(f)(3) to serve process on the Foundation by mail, but the judge denied the motion on the grounds that although Russia has unilaterally suspended compliance with the Hague Service Convention for requests for service emanating from the United States, it has nevertheless objected to service by postal channels. Its refusal to honor the treaty does not override its objections to service by postal channels under Article 10(a).

Fisher then sought leave under FRCP 4(f)(3) to serve process by email. My perspective on this should be familiar. Service has to be by a method authorized by the Hague Service Convention. You’re not going to allow service by mail because Russia objected to service by mail under the Convention—fine. Should you allow service by email? Well, what provision of the Convention authorizes it or even permits it? The answer, none, except possibly Article 10(a), the article on service by postal channels, but the whole reason we’re in this mess is because Russia does not allow service under Article 10(a).

But as longtime readers know, this analysis has not proved persuasive to very many American courts. Indeed, there are so many district court decisions to choose from that when granting Fisher’s motion, the judge did not even have to cite the leading case, Gurung v. Malhotra. Sigh.