Judge Huck Cites Emily Dickinson And "International Concept of Due Process."

huckdickinsonorder

Ok, maybe not a entirely fair headline, but I have to spice things up somehow.

Actually, this is an interesting order in which Judge Huck denies reconsideration of his refusal to enforce $97 million in Nicaraguan judgments against Dole over alleged injuries sustained from the pesticide DBCP sprayed on Nicaraguan banana plantations.

We've previously discussed this case here and here.

Judge Huck's Dickinson reference brought back some pleasant college memories:

But now, Plaintiffs contend that, unbeknownst to the participants in this lawsuit, including, apparently, Plaintiffs themselves, late arriving, independent legal grounds have emerged that compel recognition of Plaintiffs’ judgment. This alone is reason to deny Plaintiffs’ motion. “The past is not a package one can lay away.” EMILY DICKINSON, SELECTED LETTERS 290 (Thomas H. Johnson, ed., Belknap Press of Harvard University Press 1986) (1914). Rules 59 and 60 do not provide litigants with an opportunity to test new legal theories in the absence of an intervening change in controlling law.

Classy and erudite (and properly cited!), but I might have went with this bon mot:

For each ecstatic instant
We must an anguish pay
In keen and quivering ratio
To the ectasty.

For each beloved hour
Sharp pittances of years,
Bitter contested farthings
And coffers heaped with tears.
I don't know, maybe the Judge's reference was more on-point.

Then we have Judge Huck's reference to that dreaded hip Eurobeast, international "law":

In refusing to recognize the judgment, the Court applied the “international concept of due process” outlined by the Seventh Circuit in Society of Lloyd’s v. Ashenden, 233 F.3d 473, 476-77 (7th Cir. 2000). Osorio, 2009 WL 3398931, at *16, 2009 U.S. Dist. LEXIS 99981, at *51.

Woah -- I guess the Judge is unaware of the mild hand-wringing that occasioned Yale Law Professor Harold Koh's nomination to serve as legal advisor to the State Department or Justice Sotomayor's comments on "foreign law" (she actually said Justices Scalia and Thomas had a point).

Old Europe and Emily Dickinson, all in one order -- that must have been one nice Valentine's Day.

Lawyer Spotlight -- Steven Marks

Steven sure has generated a lot of news recently.

First, there's the $22.5 billion Bank of New York Russian customs case, which settled for $14 million (prior coverage here).

Then there was Judge Huck's ruling in the Dole matter, which has a number of facts that aren't too hot, as noted by CNNMoney's Roger Parloff:

The broad terms of Huck's ruling make its reasoning virtually certain to control the outcome of a companion DBCP case known as Herrera Rios v. Standard Fruit Co., in which U.S. Lawyers were expected to seek enforcement of another $800 million in Nicaraguan court judgments.

While Judge Huck did not reach the question of fraud, he did note, as relevant to the due process issues, that the Nicaraguan judge in the Osorio case had prevented Dole from introducing into evidence 151 birth certificates indicating that at least 32 of the 150 prevailing claimants in the Osorio case (representing $21 million of the $97 million judgment) had fathered at least one child after his last alleged exposure to DBCP.

One plaintiff, for instance -- who had been awarded $574,880 for sterility and related mental distress -- had, by his own admission, fathered at least four children after his last DBCP exposure. (Dole's evidence suggested that this plaintiff had actually fathered nine children in all, including eight after his last exposure.)

Huck also found that, even assuming the plaintiffs' medical claims were accurate -- the Nicaraguan procedures had not permitted Dole to test the plaintiffs independently -- more than half of them (78 of the 150) "suffered from injuries for which, according to the unrefuted medical testimony presented to the Court, there is no medical evidence that DBCP is capable of causing."

The average recovery in both the Osorio and Herrera Rios cases was about $650,000 per plaintiff, which is a lot of money in a country where most of the population earns less than $2 a day. According to Judge Huck's ruling, Nicaraguan labor law ordinarily requires employers to pay no more than $1,240 to compensate the family of a worker who has died or become totally disabled due to occupational hazards.

So let's see -- no forum nons to Ecuador, now Nicaragua, the list keeps growing.....

Finally, Steven just filed this interpleader action before Judge Gold involving disputed fees arising from the Siber Air settlement.

Boy, I sure hope he checked the redaction box, we don't need any more issues coming up this week.

Smiles, Everyone!

We've previously written about the $22.5 billion RICO suit that Podhurst's Steven Marks brought in Russia against the Bank of New York Mellon, which involved an expert affidavit by none other than Michael Hanzman.

Forbes previously reported that the plaintiffs were looking at something like $800 million as a reasonable settlement figure.

Looks like that didn't go too well:

The Bank of New York Mellon has reached an agreement to settle a $22.5 billion lawsuit by the Russian government for $14 million, after the two sides made a separate deal for a trade-financing pact, a senior Russian government official said Wednesday.

Alexei Kudrin, the Russian finance minister, told legislators that the giant American bank will cover legal costs incurred during the two-year suit, which was tied to a late 1990s scandal in which a bank executive was accused of secretly moving $7.5 billion out of the country.

Mr. Kudrin said that the Russian Federal Customs Service, which brought the suit, had “insufficient” evidence to win the case, which was being heard in Moscow Arbitration Court.

So the $14 million covers Steve's fees and costs, and that's it?

Ok, maybe that's not a bad result after all.

Steven Marks Defends Integrity of Nicaraguan Legal System (and also Co-Counsel).

Hi kids, how was your weekend?

The details of mine were quite inconsequential, really.

Very well, where do I begin? My father was a relentlessly self-improving boulangerie owner from Belgium with low grade narcolepsy and a penchant for buggery. My mother was a fifteen year old French prostitute named Chloe with webbed feet. My father would womanize, he would drink. He would make outrageous claims like he invented the question mark. Sometimes he would accuse chestnuts of being lazy. The sort of general malaise that only the genius possess and the insane lament. My childhood was typical. Summers in Rangoon, luge lessons. In the spring we'd make meat helmets. When I was insolent I was placed in a burlap bag and beaten with reeds- pretty standard really. At the age of twelve I received my first scribe. At the age of fourteen a Zoroastrian named Vilma ritualistically shaved my testicles.......

So are you following the unfolding drama playing out in federal court regarding Podhurst, Nicaragua, and the pesticide DBCP?

It's a role-reversal of sorts for forum non junkies -- normally the defendants are claiming the foreign legal system is okey-dokey, and the plaintiffs are railing against the lack of justice in corrupt courts run by big multi-nationals.

Here it's the opposite -- the Nicaraguan courts have fast-tracked injury sterility claims by farmers involving the pesticide DBCP, and plaintiff's lawyers are seeking to have those foreign judgments honored in federal court in Miami.

But out in LA a state court judge, Victoria Chaney, has questioned whether the claims and plaintiffs in related cases are manufactured, and has apparently implicated Podhurst co-counsel in the Miami cases, Texas lawyer Mark Sparks:

The scam, Chaney wrote, was part of a much wider fraud in Nicaragua -- a thriving industry of manufacturing plaintiffs to capitalize on a justice system rigged against multinational corporations.

At the center of that system, she wrote, is a law passed by the Nicaraguan government in 2001 that ordered the courts to fast-track DBCP claims.

Anybody claiming to have been exposed to the chemical on a banana farm who can produce a lab report showing he is sterile is entitled to damages. Evidence presentation is limited to eight days, after which the court has three days to decide the case. Defendants, such as Dole, must deposit millions of dollars in a trust for the right to defend themselves. They generally don't bother because it is almost impossible for them to win.

As the Florida case is set to restart, attorneys for Dole have already submitted Chaney's ruling to bolster their argument that the $97-million judgment in Nicaragua was a sham.

The plaintiffs' attorneys countered that Chaney's ruling is full of inaccuracies and overly broad.

"It's amazing to me that a judge can criticize in a sweeping way an entire country's integrity and make a ruling on every individual's honesty and integrity, even those who aren't before her," said plaintiffs' attorney Steven Marks of the Miami-based firm Podhurst Orseck.

Chaney's ruling implicates Provost and Umphrey, a Texas law firm representing plaintiffs in the Florida case along with Podhurst Orseck, in the alleged fraud in Nicaragua. Chaney wrote that one of its attorneys, Mark Sparks, was present in a 2003 meeting in Nicaragua at which lawyers, medical laboratory officials and a judge set out a plan to manufacture evidence and bolster cases in the Nicaraguan courts.

In court filings, Sparks and his firm denied he ever attended such a meeting, and argued that Chaney's ruling was fundamentally unfair because it did not offer them the right to defend themselves.

The ruling was based primarily on information from witnesses whose names and unredacted testimony to Dole lawyers remain sealed under an order by Chaney, who became convinced that their lives would be in danger if their identities were made public.

In any case, the plaintiffs' lawyers in the Florida case said they had no involvement in the California cases.

Sparks and his firm released a statement saying they "are confident that our investigation, testing and diagnosis protocols were superior to other firms in this litigation."

In other words -- go pound sand, Judge Chaney.

Our interest in this case has nothing to do with sperm motility or related health issues, I assure you, but we will nevertheless be following this one closely.

Fortune Doesn't Like Steven Marks That Much.

Roger Parloff, senior editor at Fortune Magazine, has penned this odd ode to Podhurst lawyer Steven Marks:

The good news is that a Moscow judge adjourned Tuesday's scheduled pretrial hearing in Russia's dubious $22.5 billion suit against the Bank of New York Mellon to allow the parties to pursue settlement talks. The agency bringing the suit, the Russian Federal Customs Service, had requested the talks in a short letter that the bank's lawyers received Friday.

The bad news is that an anonymous "Russian government" source has been quoted in the Russian newspaper Kommersant as suggesting that $800 million would be a reasonable figure for resolving the suit.

On top of many other reasons why Russia's suit, which has extortionate overtones, must not be permitted to succeed -- see my September feature story in FORTUNE, "Bank of New York's $22.5 Billion Headache" -- there's now a capper. Last October the bank, at the U.S. Treasury's bidding, accepted $3 billion in TARP (Troubled Assets Relief Program) money.

Are taxpayers now going to watch more than a quarter of that money go to Russia to pay off a fishy-smelling suit? And even if taxpayers could stomach that, are they prepared to then see 29% of the $800 million -- $232 million -- pass through to American lawyer Steven Marks of Miami's Podhurst Orseck, who represents victims in many airplane crash cases and who has been Russia's contingent-fee trial counsel in the weird case? Court records show that that's what Marks's retainer agreement calls for him to receive. Marks did not return emails seeking comment.

No, I think the public would rather see BoNY-Mellon blow all the money on bonuses and corporate parties!

BTW, it's a private contract that calls for Marks to accept huge risk for uncertain or perhaps no reward -- I thought this was to be encouraged? I also love how Parloff acts as if the Bank had to be begged -- "at the U.S. Treasury's bidding" -- to accept the TARP money.

Oh you're a funny man, Mr. Parloff.

Putting aside the merits of the suit (which does look somewhat weak), you still have to be amazed at Parloff's entire premise -- that by filing the action in Russia, Marks was attempting to make use of a corrupt foreign legal system that favors the entrenched and powerful, instead of filing in America where all sides have an equally fair shot.

Not exactly the type of argument you'd expect from a Fortune 500 macher.

Indeed, isn't that the 900-pound gorilla in the room whenever the court deals with a forum non motion by a large corporate defendant? You know, when the corporation swears that the legal system in some small backwater where it happens to control the economy and all the levers of power is perfectly suited to adjudicate some poor schmuck's claim?

Please Fortune -- don't tell us what you and your readers really think of foreign legal systems. You're gonna shoot my Kinney analysis all to hail!

WSJ Law Blog Snubs Michael Hanzman. You Heard Me, Michael Hanzman!

Late to the party (we blogged about this case back on May 20), WSJ's Law Blog reports on the Russian RICO case against BoNY brought by Podhurst lawyer Steve Marks. Yet in summarizing the experts retained by Steve-o, they inexplicably ignore the Big Cheese himself:

In the Russians’ corner is Miami lawyer Steven Marks, of Podhurst Orseck. He’s hired Harvard law prof Alan Dershowitz and G. Robert Blakey, a RICO expert from Notre Dame’s law school, to testify about the applicability of RICO in Russia. Also on Marks’s side is George Pratt, a retired federal appellate judge who’s now a special counsel at Farrel Fritz.

There's going to be hell to pay in Coral Gables......

The Bank of New York Mellon Doesn't Like Michael Hanzman

Get a load of this hilariously-worded press release, obviously written in Russian and poorly translated by somebody for whom English is a second or third language. The release is about expert testimony submitted in a case brought against the Bank of New York in a Russian court by the Russian Federal Customs Service, which is represented by Podhurst lawyer Steven Marks. Here is how the release describes the case:

The meritless claims in the case, which were devised by trial lawyers from Miami, Florida, center on unspecified customs duties that the FCS alleges were owed to Russia on funds transferred out of the country in the 1990s, some of which moved through accounts at The Bank of New York. U.S. courts have summarily dismissed attempts by these trial lawyers to use the same legal theories to bring similar claims for customs duties against U.S. tobacco companies on behalf of Belize, Ecuador and Honduras.

A pretty fair and balanced account, don't you think? From what I can glean from this amateurish press release, the question before the Moscow court is whether US RICO law could be applied and, if so, whether or not the complaint pleads a proper RICO count. In support of the motion to dismiss, the Bank submitted the affidavit of former US Attorney General Richard Thornburgh.

In opposition, Steve submitted the affidavit of none other than SFL fave Michael Hanzman (sheesh, get a web presence already!), which I guess the Bank doesn't think too highly of. Here's their laughable account of Michael's testimony:

Lawyers for the FCS submitted an "expert affidavit" on U.S. RICO law from Michael Hanzman, who, like FCS's lead counsel Steven Marks, is a plaintiffs' lawyer also based in Miami, Florida. Hanzman specializes in initiating class actions in product liability and securities law cases, not RICO law. Further, his "expert affidavit" is full of misstatements of fact and governing law, and fails to address key points made by The Bank of New York Mellon in its motion to dismiss the case for lack of jurisdiction. For example:

-- Hanzman repeats the falsehood, also cited in the FCS's Statement of
Claim, that the Company admitted violating various U.S. criminal
statutes in its Non-Prosecution Agreement with the U.S. Department of
Justice.  As is clear from the face of the Non-Prosecution Agreement
and Mr. Thornburgh's affidavit, the Company was never charged with
violating any of those criminal statutes, and it certainly did not
admit to violating them as Hanzman erroneously claims in his affidavit.
-- Hanzman inexplicably cites from the U.S. Court of Appeals for the Ninth
Circuit, Republic of the Philippines v. Marcos, where the government of
the Philippines brought a RICO claim in a U.S. court.  This case,
instead of supporting the FCS's position, in fact supports the
Company's legal argument that all RICO cases must be brought in U.S.
courts.
-- Hanzman fails to cite a single case where a foreign court has applied
U.S. RICO law, apparently because no such case exists.
-- His affidavit completely fails to address the Company's argument that
RICO requires a court to engage in a criminal law analysis and that
this particular court, the Russian Arbitrazh Court, does not and cannot
apply criminal law.

Yeah, Mike's not qualified to opinion on RICO.

If this is all they have for rebuttal, the Bank is in trouble.