Monday, May 10, 2010


NYLJ 6-11-07


2. When it comes to diversity of jurisdictions, it probably doesn’t get any wider than when the Long Arm Statute has to cross an ocean. Not to belittle the New World’s complexities, but the Old World has such embedded historical precedent that you could call the Magna Carta a relative newcomer when stacked up against Talmudic body and the Code of Hamunarabbi.

So it gets even more humorous when an upper level authority, like the US Court of Appeals for the 2nd Circuit, has to ask a lower one, namely the NY CoA, for “guidance”—a term more familiar when applied to camp counselors or spiritual gurus. Although, when it does come down to a statutory interpretation, namely CPLR section 302(a)(1), the 2nd is preferring to err (or not) on the side of caution, as the lower court’s prior decision does “not yield a clear answer” about the scope of it. The statute confers jurisdiction over a non-NY resident who “in person or through an agent…transacts any business within the state,” if the cause of action arises out of the defendant’s NY transaction.

The instant case is one of a libel judgment won by a Saudi multi-billionaire banker against a writer-researcher in the city. That Ehrenfield was too broke to defend herself in England, where the wily arab filed and won his suit, should tell you a lot about the Hunter and the Game. From the giddyup, the rules of evidence and burden of proof being a whole lot looser there (and assuming Shiek-Yer-Moneymaker could afford some major talent), it was as close to a done deal as you might imagine.

So when he tries to get an enforcement here, the lady countersues that the judgment is not enforceable on constitutional and public policy grounds. The SDNY judge dismissed this outright, finding a lack of personal jurisdiction—which is pretty much how this involves New York State vs. a British court. Then, the US CoA 2nd got a hold of it and had a second think, certifying the question to the state CoA as to whether the statue applies to someone who “sued a NY resident in a non-NY jurisdiction,” which she is and he did, “whose contact with New York stemmed from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York.” Seems to be pretty clear on the “if” part of the proposition, which is all you need for a certified question. Now the NY CoA is not obligated to answer certified questions from the 2nd Circuit, but—hey!—let’s worry about “then” when we get there, right?

Ehrenfield put up as evidence the number of papers served upon her and her publisher and the overall plan to use the suit to chill out the work of investigative journalism and the research she does in NYC. This is her attorney’s means of putting the ball in the local courts and taking it “into the paint”—so to speak in some metaphor about “Home court advantage” or such—on the issue of 1st Amendment rights and THAT IS the public policy issue in and of itself. That this would be setting a precedent is why it is being so carefully parsed and measured and weighed.

In poring over the process to date, the 2nd DID agree with SDNY that, at least in one part, CPLR section 302(a)(1) does not provide for personal jurisdiction. Also, that it was correct in refusing to grant a motion for jurisdictional discovery (whatever that is).

At the heart of the matter, the issue at issue, the res, is Eherenfield’s book linking Mahfouz to Al Qeda as a financier of terrorism. In America today, perhaps, there has never been so favorable a climate for this particular contest. Yet, the present state of the legal wrangling has nothing of the nation policy about it: this is strictly on personal jurisdiction—whether the billionaire tribesman has to re-sue in the USA.

When you look at whose filing the Amicus Curae briefs in this—including the American Society of Newspaper Editors, the Author’s Guild, Association of American Publishers and the Online News Association—there’s little question in the peer group that it doesn’t mean here evidence is conclusive. They just want to know what ground they stand on, in the whole world of possible places where such arguments may arise.

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