LouAnn Kelleher - Cell Phone:(917) 733-7375 Email: firstname.lastname@example.org
Bill Kardaras - Cell Phone: (917) 733-7661 Email:email@example.com
Susan Charters – Cell Phone: (917) 536-0800 Email:firstname.lastname@example.org
Michelle Aiena – Cell Phone: (917) 755-2444 Email:email@example.com
Gabriel Dixon - Cell Phone: (646) 606-4370 Email:firstname.lastname@example.org
Kathleen Kelleher – Cell Phone: (201) 936-0320 Email:email@example.com
Please check our Blog at www.kknylaw.com/blog for further updates as to when we will be back in our offices at 77 Water Street.
Thank you for your understanding and patience. Rest assured that while we are working remotely, it is business as usual for the Firm.
Kardaras & Kelleher LLP
Gabriel’s experience in practicing law in Mexico brings a fresh outlook to the firm and compliments the firm’s practice of law in its various areas of specialty, including products liability, insurance coverage litigation, intellectual property, real estate law and foreign investment. He is licensed to practice in Mexico. He is an authorized Spanish-English/English-Spanish translator by the Supreme Justice Tribunal of the State of Jalisco, Mexico.
We look forward to his swearing in ceremony and his continued success.
We hope that those of you who were in the hurricane’s path are safe and came through the storm without too much trouble. We are happy to report that we at Kardaras & Kelleher have come through the storm okay with the primary inconvenience of no electricity or trains.
The building is telling us that our office on Water Street is having issues with “water” and the building will be closed for the next few days.
While the office is closed, we are still here for our clients through email. Our addresses are as follows:
LouAnn Kelleher: firstname.lastname@example.org
William Kardaras: email@example.com
Susan Charters: firstname.lastname@example.org
We will post on the blog again when we are back in our offices.
For those of you who were in the hurricane’s path, we wish you and your families a speedy return to normal.
Kardaras & Kelleher LLP
|To provide our current and potential clients with what they want to see and need to know, we have updated our website and blog with a new fresh new format and additional information.
When working with Kardaras & Kelleher LLP, you can be assured that you will get the very best legal services and that our focus is on our clients. Please browse though our new website at www.kknylaw.com for further information about us. If you haven’t yet done so, sign up for the Blog and follow us on LinkedIn and Twitter.
We look forward to working with you and handling your cases. We are Kardaras & Kelleher LLP, and we offer Global Experience, Global Solutions and Global Success.
U.S. Federal Court Holds That The Federal Rules Of Civil Procedure Control The Discovery Obligations Of A Foreign Corporation, Not The Hague ConventionJune 13th, 2012
By: Michelle Aiena
The United States District Court for the Eastern District of Pennsylvania recently ruled that a foreign corporation defending a civil action in the United States must comply with the Federal Rules of Civil Procedure with regards to discovery, even if the foreign corporation will face possible criminal liability abroad for complying with the Federal Rules. The court held that neither the Hague Convention nor a French Blocking Statute excused the foreign defendant from providing discovery pursuant to the Federal Rules, and rejected the defendant’s argument that the Hague Convention’s procedures controlled. For now, this decision appears to be limited to discovery relating to jurisdictional issues. Nevertheless, as a consequence, foreign corporations in U.S. litigation must be aware that the Hague Convention, or their own country’s laws, will not necessarily protect them from U.S. discovery rules.
In TruePosition, Inc. v. LM Ericsson Telephone Co., et al., plaintiff TruePosition, a company that develops and markets positioning technology that operates over cellular telecommunications networks, brought suit against various defendant companies in the international telecommunications market. TruePosition alleged that the defendants violated the Sherman Antitrust Act by conspiring to determine that TruePosition’s technology failed to meet the defendants’ standards. Among the defendants is European Telecommunications Standards Institute (“ETSI”), a standard-setting organization located in France and comprised of more than 700 member companies from 62 countries.
ETSI moved to dismiss the complaint against it for lack of personal jurisdiction, and the court ruled that limited jurisdictional discovery was needed before it could determine whether it has personal jurisdiction over ETSI. In response, ETSI moved for a protective order, asserting that the jurisdictional discovery between the parties must be secured through the Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters, 28 U.S.C.S. § 1781, March 18, 1970 (the “Hague Convention”). TruePosition argued that discovery should proceed pursuant to the Federal Rules of Civil Procedure. The court ultimately agreed with TruePosition.
Both the U.S. and France are signatories to the Hague Convention and, according to ETSI’s argument, Letters of Request are the preferred method of taking discovery under the Hague Convention. The court, however, noted that the Hague Convention does not provide exclusive procedures for obtaining documents and information located in a foreign territory and does not deprive the court of its jurisdiction to order a foreign party to produce evidence according to the Federal Rules of Civil Procedure. Citing the U.S. Supreme Court’s ruling in Societe Nationale Industrielle Aerospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 524 (1987), the court stated that U.S. courts should not, as a first resort, depart from the Federal Rules in favor of the Hague Convention for discovery procedures.
In Aerospatiale, the Supreme Court adopted a rule of comity, stating that courts must determine whether to resort to the Hague Convention or the Federal Rules by scrutinizing the facts of each case, the sovereign interests, and the likelihood that such resort will be effective. There are five factors identified by the U.S. Supreme Court to consider in the analysis: (1) the importance of the documents or information requested to the litigation; (2) the degree of specificity of the requests; (3) whether the information originated in the U.S.; (4) the availability of alternative means of securing the information; and (5) the extent to which noncompliance with the requests would undermine important interests of the U.S. or of the state where the information is located. In construing Aerospatiale, courts have also created two additional factors to consider: (1) the good faith of the party resisting discovery; and (2) the hardship of compliance on the party or witness from whom discovery is sought.
After conducting its own analysis of the Aerospatiale factors, the TruePosition court found that the factors were split—some favoring ETSI and some favoring TruePosition. The court noted that (a) the documents at issue involved necessary and relevant jurisdictional discovery regarding ETSI’s contacts with the U.S.; (b) TruePosition’s document requests were specific and reasonable; (c) the evidence was located in France because ETSI only had an office location in France; (d) limited jurisdictional discovery is not as intrusive as merit discovery; (e) jurisdictional discovery was necessary to determine whether the court had jurisdiction over ETSI; (f) the Hague Convention procedures for securing information were more time-consuming than the Federal Rules; and (g) several strong national interests of the U.S. were implicated, including the interest in enforcing the policies of free market competition, especially in an antitrust case involving the international telecommunications market. The court acknowledged that France had a sovereign interest in managing access to information within its borders and protecting its citizens from discovery in foreign litigation, but dismissed the interest as “relatively weak” in comparison to the significant interests of the U.S.
The court also noted that the final factors of good faith and potential hardship weighed slightly in favor of ETSI, especially since ETSI, citing a French Blocking Statute in the French Penal Code, argued that it would face potential criminal liability under French law if it responded to discovery requests that did not comply with the Hague Convention. The French statute prescribes sanctions for French nationals who disclose information in foreign discovery without using procedures in the Hague Convention. The court, however, dismissed ETSI’s concerns, noting that ETSI presented no evidence that the French Blocking Statute had ever been enforced in the context of a federal suit filed in the U.S. regarding jurisdictional discovery or that ETSI would face a significant risk of prosecution if it complied with discovery pursuant to the Federal Rules of Civil Procedure. In support of this position, the court cited cases holding that blocking statues do not subject a defendant to a realistic risk of prosecution and do not deprive a U.S. court of jurisdiction.
Following its analysis, the court determined that the interests of comity set forth in Aerospatiale weighed in favor of the Federal Rules of Civil Procedure. ETSI bore the burden of proof and the court found that it failed to meet its burden that the Hague Convention should apply. The court thus denied ETSI’s request for an order of protection and ruled that ETSI had to comply with TruePosition’s discovery requests under the Federal Rules of Civil Procedure.
LouAnn Kelleher Receives her LL.M. in U.S. and Global Business Law with Classmates from Around the Globe.May 22nd, 2012
Kardaras & Kelleher, LLP is proud to announce that on Sunday May 20, 2012 LouAnn received her LL.M. in US and Global Business Law at Suffolk University in Boston. Also receiving their LL.M. were graduating classmates from Iran, Hungary, Honduras, Mexico, Oklahoma, Saudi Arabia, Slovakia, Slovenia, and Texas.
The “LL.M. in U.S. and Global Business Law” was the first degree program of its kind. The cooperation between Suffolk University Law School (SULS), Boston, Massachusetts, U.S.A., and Eotvos Lorand University (ELTE), Budapest, Hungary, along with the administrative support of the Center for International Legal Studies, Salzburg, Austria, (CILS) marked a ground breaking step towards the internationalization of legal education.
Her course work included 3 intensive 2 week courses at Eotvos Lorand University in Budapest and included courses such as International Project Finance, International Arbitration, Resolution of International Disputes, Global Internet and Mergers & Acquisitions.
The program was taught by law professors from Suffolk University Law School and from other U.S. law schools, with a focus on the transactional and transnational need of international business lawyers. It covered substantive law from the U.S. perspective, studied at an advanced and demanding level, and learned through the acquisition of U.S. legal skills. The program also offered additional co-teaching and lecturing by faculty from Eotvos Lorand University and other European law faculties.
LouAnn is the personification of the Firm’s philosophy of serving clients with the most up to date information available which is often achieved through continuing education. Please join all of us at Kardaras & Kelleher in offering congratulations to LouAnn on her latest accomplishment.
Using Twitter can be a valuable tool that helps you screen information from groups that provide information you are generally interested in. It helps you filter stories and can get you straight to those that you want more information about.
Our Blog articles vary in topics from significant court decisions to issues relevant to insurers and insureds both in the U.S. and abroad. Recent articles have focused on vendor’s coverage, issues relating to Chinese manufacturers, civil terrorism and the use of computer-assisted review of documents in courts.
You can always be notified of Blog articles by signing up for the RSS Feed at www.kknylaw.com/blog. However, by following @kknylaw on Twitter, you can cut to the chase by reading the “headline” for the articles we post and then read the complete articles that you find pertinent.
We invite you to follow us on Twitter @kknylaw today.
By: Michelle Aiena
We have handled many cases involving Chinese insureds, mostly manufacturers, who either had no insurance coverage, or not enough. Therefore, we found the recent article in the Asia Insurance Review to be particularly interesting. According to the article, a senior Chinese insurance executive and delegate to the Chinese People’s Political Consultative Committee has called for public liability insurance to become compulsory in China to ensure public safety, offer protection to the public, and increase awareness of risk management. If you’re interested, you can read the article at http://www.asiainsurancereview.com/pages/e-weekly.asp?utm_source=Daily-AIR-eDaily&utm_medium=Email-AIR-eDaily&utm_content=News%2B&utm_campaign=AIR-eDaily-Blasting&country=10&articleID=15587#15587.
For more articles from Asia Insurance Review, visit www.asianinsurancereview.com.