Blawgletter®

About You and Us

Blawgletter focuses on high-stakes civil disputes. We don't provide legal advice here. And yet you may contact us with questions or comments by email (bbarnett@susmangodfrey.com), © Barry Barnett 2007-2012. All rights reserved.

Second Circuit Explains Why It Lifted Order Barring Efforts to Enforce Ecuadoran Judgment in New York

Last September, a panel of the Second Circuit tossed a preliminary injunction that barred any action, anywhere, to collect on an Ecuardoran court's $17.2 billion judgment against Chevron for polluting part of the Amazon. Last week, the court got around to saying why.

[Blawgletter describes some of the dispute's facts, claims, and decades-long history here.]

The court grounded its ruling on the fact that the basis for the injunction -- New York’s Uniform Foreign Country Money-Judgments Recognition Act, N.Y. C.P.L.R. §§ 5301-5309 -- "does not authorize affirmative relief of this kind, but only recognizes a defense available when a would-be judgment-creditor first attempts enforcement in New York." Chevron Corp. v. Naranjo, No. 11-1150-cv(L), slip op. at 2 (2d Cir. Jan. 26, 2012). The panel went on:

Judgment-debtors can challenge a foreign judgment’s validity under the Recognition Act only defensively, in response to an attempted enforcement – an effort that the defendants-appellees have not yet undertaken anywhere, and might never undertake in New York.

Id. at 4. Got that? The Recognition Act recognizes foreign judgments except when it doesn't, in which case you have to invoke the exception by way of defense and not through an action for a pre-emptive injunction.

We suspect that the outcome in Naranjo won't mean a huge change in your law practice, but we all must marvel at the great lengths to which people who seek or want to keep large amounts of money will go to get or retain them.

 

Quote of the Day: Dick Tufeld

Danger, Will Robinson!

Dick Tufeld, as Robot B-9 in Lost in Space (1965-68). 

Mr. Tufeld died Jan. 23, 2012. R.I.P.

 

Spying by GPS Amounts to "Search", Supreme Court Holds

You run a nightclub. You also drive a Jeep. And sometimes you use the Jeep to bring cocaine and cocaine base to your nightclub.

The police suspect you. They get a warrant to put on your Jeep a device that will allow the police, by using global positioning satellite technology, to track where your Jeep goes. But they fail to comply with the warrant, which issued from the District of Columbia, by attaching the GPS signal-emitter to your Jeep in Maryland. That doesn't keep them from watching you via satellite for about a month. And they use the info to help convict you on drug charges.

You appeal on the ground that the fourth amendment barred the police from tracking your Jeep's movements. And, today, the Supreme Court holds that the warrantless use of the GPS thing did amount to an unlawful "search" under the fourth amendment.

Justice Scalia's majority opinion, which Chief Justice Roberts and Justices Kennedy, Sotomayor, and Thomas joined, based the ruling on the fact that in Merry Olde England the means the police used to gather info on you would have counted as a tort -- trespass to chattels. United States v. Jones, No. 10-1259 (U.S. Jan. 23, 2012).

Justice Sotomayor concurred to point out that in the digital age, which requires us to share info all the time, the fourth amendment ought not "treat secrecy as a prerequisite for privacy." Slip op. at 6.

Justice Alito concurred in the judgment, urging that the case should turn on your "reasonable expectations of privacy" and not whether the police committed a trespass in the 1791 sense. Slip op. at 2. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined in the Alito concurrence.

Okay for Suits in State Courts Doesn't Bar Actions in Federal Ones, Supreme Court Holds

The Telephone Consumer Protection Act of 1991 provides that a private person who claims a violation of the act may sue "in an appropriate court of [a] State" so long as "the laws or rules of court of [the] State" permit the suit. 47 U.S.C. §§ 227(b)(3) & (c)(5). May the person also bring her TCPA action in federal court on the ground that her claim falls within "federal question" jurisdiction?

Yes, the Supreme Court held last week. Mims v. Arrow Financial Services, LLC, No. 10-1195 (U.S. Jan. 18, 2012).

Nothing in the text, structure, purpose, or legislative history of the TCPA calls for displacement of the federal-question jurisdiction U. S. district courts ordinarily have under 28 U. S. C. §1331.  In the absence of direction from Congress stronger than any Arrow has advanced, we apply the familiar default rule: Federal courts have § 1331 jurisdiction over claims that arise under federal law.  Because federal law gives rise to the claim for relief Mims has stated and specifies the substantive rules of decision, the Eleventh Circuit erred in dismissing Mims’s case for lack of subject-matter jurisdiction.

Id., slip op. at 17-18.

Enemy of the Good: Class Cert Doesn't Require Perfect Proof, Seventh Circuit Says

The Seventh Circuit held last week that a district court set too high a standard for class certification in an antitrust case.

"In essence," the panel ruled, it is important not to let a quest for perfect evidence become the enemy of good evidence." Messner v. Northshore University HealthSystem, No. 10-2514, slip op. 3 (7th Cir. Jan. 13, 2012).

The district court had refused to certify a class of suburban Chicago hospital patients who claimed that a merger hurt competition for their healthcare dollars and raised prices. The court thought that common issues didn't "predominate" under Rule 23(b)(3) unless the class could prove uniform increases in hospital prices for all services after the merger. But not all prices went up at the same rate.

The Seventh Circuit vacated the order denying certification. The panel concluded:

[T]he evidence shows that [plaintiffs' economics expert] Dranove can use common evidence and his difference-in-differences methodology to estimate the antitrust impact, if any, of Northshore’s merger on the members of that class. Together with the common questions and evidence on other liability issues, this was sufficient to show predominance under Rule 23(b)(3).

Id. at 45.

The defendants, by the way, had lost at trial before an administrative law judge on the Federal Trade Commission's claim that the merger created an unlawful monopoly under section 2 of the Sherman Act.