Sequor Law represented the Plaintiff in successfully obtaining a $19.5 million temporary mandatory and prohibitory injunction to protect the res of a constructive trust claim, which funds had been dissipated from Miami escrow accounts to offshore accounts during the pendency of the case. The Florida Eleventh Judicial Circuit Complex Business Litigation Court required the Defendants to return the $19.5 million to a Miami escrow account and prohibited further transfer of the funds. The Defendants appealed the adverse injunction order over the escrow funds by arguing, among other things, that the Court should not have entered the injunction without first determining it had personal jurisdiction over the defendants. Sequor Law represented the Plaintiff as Appellee in the appeal. After considering the briefing and oral argument, on February 26, 2019, the Third District Court of Appeal affirmed injunction order in a written opinion.
28 U.S.C. § 1782, known colloquially as “Section 1782,” is a federal statute that allows foreign litigants and interested persons to request judicial assistance from U.S. federal courts to obtain evidence for use in a proceeding in a foreign or international tribunal. Section 1782 is highly relevant to a wide array of legal practitioners, both within and outside the U.S., as federal courts have concluded that evidence obtained through Section 1782 may be used in civil, criminal, probate, bankruptcy, marital, administrative, and regulatory cases. In short, if your client is not using Section 1782 as part of its litigation strategy, there is a good chance that your client’s opponent is using it to your client’s disadvantage.
Section 1782 is an alternative to the slower, and oftentimes cumbersome, cross-border discovery mechanisms such as letters rogatory and diplomatic or consular channels, because it can be pursued directly by the litigant or interested party without the involvement of the foreign court or tribunal or of the governmental authorities making up the traditional channels. Section 1782 was enacted decades ago and was revised extensively in 1964, but its widespread use did not take off until after the U.S. Supreme Court’s 2004 ruling in Advanced Micro Devices, Inc. against Intel Corp., or “Intel” as the seminal decision is widely known. In the Intel case, the Supreme Court clarified the statutory requirements that an applicant has to satisfy to obtain evidence using Section 1782 as well as a number of discretionary factors courts should also consider. If the applicant is successful, it can obtain U.S.-style discovery from persons or entities located where the application is filed (in the form of site inspections, requests for production of documents, or deposition testimony under oath) for use in the foreign proceeding. Typical Section 1782 subpoena targets include businesses (including affiliated companies and subsidiaries), financial institutions, professionals such as lawyers and accountants, brokers, escrow agents, art galleries and auction houses, former employees, and many more. This incredibly powerful tool can also be pursued on an ex parte basis (at least initially) and does not require the applicant to prove that she has exhausted her domestic evidence gathering tools in the foreign case or, significantly, that the evidence will be admissible in the foreign proceeding.
One issue that has been contested since Intel was decided is whether Section 1782 can be used in support of a private commercial arbitration (as opposed to treaty-based arbitrations where the use of Section 1782 is clearly supported by the applicable case law). Recently, the Sixth Circuit and Fourth Circuit Courts of Appeals broke with the Second and Fifth Circuits and determined that interested parties may rely on Section 1782 to obtain evidence for use in a privately constituted international arbitration proceeding. In September 2019, the Sixth Circuit analyzed the definition and interpretation of the word “tribunal” at length (relying on the ordinary meaning of the word, several dictionary definitions, the use of the word in legal writing, and an examination of the statute’s text, context and structure) and held that the language of Section 1782 unambiguously “includes private commercial arbitral panels established pursuant to contract and having the authority to issue decisions and bind the parties.” Abdul Latif Jameel Transportation Co. Ltd. v. FedEx Corp., 939 F.3d 710, 723 (6th Cir. 2019). A few months later, the Fourth Circuit followed. In March 2020, the Fourth Circuit agreed that private arbitral tribunals are “foreign tribunals” within the meaning of Section 1782, and rejected a litany of policy arguments advanced by the respondent. Servotronics, Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020).
Although district court decisions have been deeply divided on the issue since Intel, there is now strong momentum gathering at the appellate level favoring the use of Section 1782 in aid of private commercial arbitration. For example, California district courts had uniformly followed the Second and Fifth Circuits in holding that an applicant may not obtain evidence through Section 1782 for use in a private commercial arbitration—until recently. In February 2020, a federal court in the Northern District of California adopted the reasoning and conclusion of the Sixth Circuit’s decision regarding Section 1782’s application to private international arbitration. HRC-Hainan Holding Company, LLC v. Yihan Hu, No. 19-mc-80277, 2020 WL 906719 (N.D. Cal. Feb. 25, 2020). That case is now on appeal, and the Ninth Circuit is positioned to rule on the issue.
In sum, the already powerful Section 1782 has seen its applicability bolstered by two of the highest courts in the U.S. indicating that Section 1782 will remain an indispensable tool in any international lawyer’s toolbox for the foreseeable future.
About the authors:
Arnie Lacayo (firstname.lastname@example.org) is a Shareholder and Cristina Vicens (email@example.com) is an Attorney at Sequor Law. Lacayo and Vicens focus their practices on investigations, financial fraud and corruption-related asset recovery cases, as well as cross-border insolvency. Both Lacayo and Vicens have extensive experience with the Section 1782 statute, including in some of the most-cited cases in the U.S.
Brazil’s health minister has predicted that the spread of COVID-19 would reach its peak between April and June and has warned that Brazil’s health system could reach saturation by the end of April.
As the novel coronavirus has been spreading throughout the region, Sequor Law has monitored its impact across Latin America. Brazil confirmed its first COVID-19 case, the first in Latin America, from a traveler who had visited Northern Italy before arriving in Sao Paulo, a city of approximately 20 million people with the largest urban population in the Americas. It is also the country’s financial center and a business hub representing one of Latin America’s largest economies. The news, which arrived after a long weekend of Carnival celebrations, brought with it a deep and almost immediate dive in the Ibovespa stock index similar to the losses that have been seen elsewhere around the globe. Most recently, Brazil closed its border to eight neighboring countries, banned travel from Europe and Asia, and closed schools, colleges, courts, and commercial business in its largest cities. Brazil’s top soccer teams have handed stadiums over to health authorities to turn them into field hospitals and clinics in the fight against the COVID-19 pandemic.
Brazil’s health minister has predicted that the spread of COVID-19 would reach its peak between April and June and has warned that Brazil’s health system could reach saturation by the end of April. At present, the country has over 4,600 confirmed cases, 165 deaths and reports indicate that the number of new cases is steadily growing. With various government officials testing positive for COVID-19, including 14 who accompanied its president, Jair Bolsonaro, to Florida a few weeks ago, the federal government has declared a national emergency in Brazil allowing the government to free up budget resources and announcing an economic stimulus package of approximately $40 billion euros. Notwithstanding all of these measures, Brazil’s currency recently hit an all-time low of R $5.2 per dollar before its Central Bank helped pare losses by cutting its benchmark interest rate to an all-time low of 3.75%, pledging to deploy financial stability policies to fight the crisis. Like the United States, closures of commercial establishments and travel bans have hit Brazil’s retail, entertainment and aviation sectors hard.
Like Brazil, nations throughout the region are in a race to “flatten” the exponential spread of COVID-19. Recent reports have stated that every country in Latin America and the Caribbean now have confirmed cases of COVID-19. Argentina is on total lockdown. In Chile—a country that already faced a political crisis prior to the coronavirus pandemic—restricted freedom of movement has postponed its April referendum for a new Constitution. Examples of such “social distancing”-inspired policies are ubiquitous. Efforts to get ahead of the most horrific potential consequences of COVID-19, however, have begun to exact a hefty price, as large sectors of the regional economy have all but shut down. Even in these early days, we have already begun to see an impact in U.S. bankruptcies, as distressed companies in pending reorganization proceedings are losing their exit financing and private equity investors are lowering or pulling bids to acquire the assets of bankrupt companies due to market volatility caused by the pandemic. Unfortunately, with no clear medical solution on the horizon and talk of increasing infection rates impacting the region, it appears likely that the situation will get worse before it gets better.
On March 27, the managing director of the International Monetary Fund, Kristalina Georgieva, said that the global economy has now entered a recession that could be as bad as or worse than the financial crisis in 2009. Although Georgieva noted that the world economy could experience a “sizeable rebound” in 2021 if nations are successful in containing the pandemic, she stressed that “a key concern about a long-lasting impact of the sudden stop of the world economy is the risk of a wave of bankruptcies and layoffs that not only can undermine the recovery but erode the fabric of our societies.” These statements capture the reality that, unlike other recent recessions, it is difficult to identify sectors of the economy that will not be impacted by the current crisis. The extent of the crisis is perhaps most poignantly captured by the report that more than 6.6 million workers filed claims for unemployment in the United States this week—a number that shattered all prior records for such filings.
Although the most widely publicized effects of the worldwide shutdown have been seen in the aviation, cruise, hospitality (restaurant and hotel) and retail sectors, this crisis will undoubtedly result in a sharp increase in both domestic bankruptcy cases, and cross-border insolvency matters across all sectors where foreign companies and liquidators may seek U.S. assistance to obtain relief from creditors (such as by obtaining a stay of collection actions), to protect assets located in the United States or to obtain information or directly enforce rights against third parties in furtherance of a foreign bankruptcy proceeding. Certainly, our years of experience as bankruptcy specialists tell us that the rise of domestic bankruptcy cases for small businesses and the sectors of the economy hardest hit by the shutdowns are inescapable, as many businesses cannot withstand the strain of even a temporary closure without revenue combined with continuing obligations to pay fixed costs. It is likely that a similar dynamic will play out in national economies around the globe, including Brazil and other Latin American countries.
Countries are already responding to the anticipated surge in insolvencies. In the United States, the recently enacted stimulus bill dramatically expands access to the simplified and expedited procedures that apply to small business bankruptcies, such that relief may temporarily be accessed to reorganize debts up to $7,5 million (up from $2,725,625) through Dec. 31, 2020, and extending payment plans under Chapter 13 up to seven years due to financial consequences stemming from COVID-19. Similarly, in Brazil, the Chamber of Deputies approved new preventive restructuring measures to enable companies facing financial difficulties to continue their operations including a special recovery plan for micro and small companies, allowing the extension of payment terms, reduction of interest and fines relating to tax debts, allowing more flexibility in relation to the possibility of negotiation of the parties in structuring a recovery plan and simplification of judicial procedures.
In addition to the potential for increased bankruptcy filings, our experience in cross-border fraud suggests that widespread financial distress (such as that seen during the last financial crisis) and the ensuing insolvency proceedings that follow, bring increased oversight, investigations, and, potentially, the discovery of financial frauds (like Madoff or, more recently, the “Operação Lava Jato” or “Car Wash” scandal in Brazil) that may have previously been overlooked. The discovery of improper transfers and fraud, which are more likely to come to light during a downturn, and certainly in bankruptcy, may result in the filing of cross-border insolvency proceedings under Chapter 15 of the Bankruptcy Code, where administrators and trustees search for offshore assets and information that will facilitate recovery for their creditors.
Even if the United States is fortunate enough to avoid the worst potential outcomes of this pandemic (most critically as it relates to the loss of human life), it appears inescapable that the ongoing shutdown of the global economy will result in increasing insolvency proceedings in all economic sectors (both in the United States and abroad). As numerous international businesses have substantial ties and interests in the United States (particularly, in South Florida), this drastic increase in foreign insolvency proceedings will inevitably translate to increasing numbers of cross-border insolvency proceedings in the United States.
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Sequor Law shareholder Leyza Blanco and attorney Daniel Coyle in Miami discuss the emerging trend in US federal and bankruptcy courts regarding service of subpoenas under rule 45(b)(1) of the Federal Rules of Civil Procedure (FRCP).
The language of rule 45(b) establishes the method for serving a subpoena upon the subpoena target. Previously, despite differences in the text between rule 45(b) and rule 4, governing service of original process, courts required subpoenas to be served on the subpoena target exclusively by hand delivery under the methods specified in rule 4. However, rule 45(b) jurisprudence is evolving to a more liberal standard that is both more in line with the text of rule 45(b) and more advantageous to the asset recovery practitioner, and client, seeking third-party discovery – especially from discovery targets in cross-border cases who maintain multiple residences or a more transient presence in the United States.
Service of a subpoena versus service of process— what is the difference and why is there a difference?
First and foremost, service of a subpoena under rule 45 is accomplished by “delivery”, and specifically, “delivering a copy [of the subpoena] to the named person”.
Juxtapose this language with the text of rule 4, specifically subsections “e” and “f” specifying the method for service of process of natural persons, which is also applicable for service of process of artificial persons, in and outside of the US and it is clear that the standards are notably different.
Noticeably absent from the text of rule 45 are the words “personally”; “hand” delivery; or “abode” service. References to rule 4, and state rules of service of process are also missing. Thus, based upon a plain meaning of the rules, the method of service of a subpoena is not the same as service of process. In the bankruptcy context, construing rule 45 to require personal service or even abode service of a subpoena leads to an even more bizarre result since, under rule 7004(b), service of process of an adversary proceeding may be validly accomplished by first class mail.
The distinction between the method of service of a subpoena and service of process was crucial to Judge A. Jay Cristol’s reasoned opinion in the 2008 case of Falcon Air Exp. Falcon is not the only case to analyse the distinctions between rule 45(b) and rule (4), but it provides an insightful exposition of several cases from various courts as well as an insightful analysis of the language of both rules to explain why the method of accomplishing service under each rule is different.
Judge Cristol analysed several judicial decisions from both inside and outside Florida, each of which determined that service of a subpoena upon the recipient by a means other than personal service was valid. Moving to a statutory construction analysis, Judge Cristol determined that the term “delivering” was ambiguous and should be considered in the context of other parts of rule 45, “as well as other federal rules.” Judge Cristol stated that a reading of rule 45(b)(1) as requiring the subpoena to be personally served, would render the language of rule 45(b)(4) regarding the “manner of service”, and the language of rule 4(e)(2)(A) and 4(f)(2)(C)(i) requiring the process be delivered “personally”, as “superfluous” and “pure surplusage.” Construing rule 45(b) to require personal service would thus run afoul of the Surplusage Canon (verba cum effectu sunt accipienda). Dubbing this approach the “better-reasoned, modern, emerging minority position,” Judge Cristol applied it to the facts of the case before him.
Other factors are also germane to determining that service is valid. The public policy underlying the service requirement is ensuring the receipt of the subpoena so that the subpoena target has notice of both the subpoena, and what is required/requested from the subpoena target. Thus, the purpose of the service requirement is actual receipt, which the courts accord significant weight to.
Courts also focus on equitable considerations when determining validity, such as attempts by subpoena targets to subvert the purpose of the rules by hyper-technically construing them as an artifice to evade service. For instance, in the 2000 case of Cordius Trust v. Kummerfeld, the US Bankruptcy Court for the Southern District of New York found rule 45 allows for service of a subpoena by certified mail on a deponent who rebuffed attempts at personal service and whose doorman restricted a process server’s access to a deponent’s apartment.
What is “delivery” and what constitutes “delivery” under the emerging minority position?
Delivery under this approach was defined in King v Crown Plastering Corp as serving the subpoena in a manner that reasonably insures actual receipt of the subpoena by the witness. Some courts, adopting the emerging minority position, have fleshed out this standard by providing that service may be accomplished by mailing the subpoena to the subpoena target’s known address in the US or abroad. Other courts have established that sending the subpoena by common carrier is sufficient. In the Falcon case, the court determined that substitute service on another member of the household constitutes valid service, even though the subpoena target did not reside at the address where the subpoena was delivered. At least one court has ruled that delivering the subpoena to the subpoena target’s agent is sufficient, and other courts have upheld service on domestic workers. Indeed, in a recent ruling in the case of Viacao Itpemirim in the US Bankruptcy Court for the Southern District of Florida, Judge Robert Mark held that service of the subpoena by delivering it to a non-resident domestic worker at the address where the subpoena target’s family lived was sufficient.
The emerging minority position should continue to gain adherents and traction
The so-called emerging minority position is consistent with the text of rule 45(b) and consistent with the canons of statutory construction. It is also consistent with the policy aims of the service rule: ensuring actual receipt. The emerging minority position also establishes a more liberal standard that serves another laudable public policy goal: easing the discovery of information that will increase the likelihood of recovering assets while simultaneously discouraging the corruption of the rules of civil procedure by swindlers as a ruse to avoid valid service and valid discovery. The advantage of this more liberal standard for the asset-recovery attorney seeking discovery from discovery-targets in cross-border cases is clear. A lower threshold for effecting service eases the burden of attempting to serve discovery-targets who maintain a presence both inside and outside of the United States and lowers the likelihood of having to pursue discovery in foreign jurisdictions under the slow and cumbersome procedures of the Hague Convention or through a letter rogatory in a non-member state.
Federal Rules of Civil Procedure, rule 45(b)
Federal Rules of Civil Procedure, rule 4
Bland v. Fairfax County, Va., 275 F.R.D. 466, 469–70 (E.D. Va. 2011)
In re Falcon Air Exp., Inc., 2008 WL 2038799
Doe v. Hersemann, 155 F.R.D. 630, 631 (N.D. Ind. 1994)
Hall v. Sullivan, 229 F.R.D. 501, 504 (D. Md. 2005)
Codrington v. Anheuser-Busch, Inc., No. 98-2417-CIV-T-26F, 1999 WL 1043861
TracFone Wireless, Inc. v. Does, 11-CV-21871-MGC, 2011 WL 4711458
S.E.C. v. Rex Venture Group, LLC, 5:13-MC-004-WTH-PRL, 2013 WL 1278088
In re MTS Bank, 17-21545-MC, 2018 WL 1718685
Bozo v. Bozo, Case No. 12-CV-24174-WILLIAMS, 2013 WL 12128680
In re Viacao Itapemirim, S.A., 18-24871-BKC-RAM, 2019 WL 5419550
Cordius Trust v. Kummerfeld, No. 99 CIV. 3200 (DLC), 2000 WL 10268
King v Crown Plastering Corp, 170 F.R.D. 355, 356 (E.D.N.Y. 1997).
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19 March 2020
As COVID-19 sweeps the globe, Sequor Law continues to relentlessly pursue results for our clients during these unprecedented times. In addition, we have taken proactive steps to ensure the safety and well-being of our staff and lawyers in line with the guidance provided by the relevant authorities.
A lawyer at Sequor Law will be the first to hold a new bankruptcy chair donated to the University of Miami by the Southern District of Florida bankruptcy court’s Chief Judge Emeritus Jay Cristol.
Of counsel Andrew Dawson will be awarded the Judge A Cristol Endowed Chair in Bankruptcy at a ceremony on 6 March, which will take place at the university where he is already a professor and a vice dean.
Judge Cristol, a University of Miami School of Law alumni himself, created the bankruptcy chair in 2016 to recognise faculty members for achievements in bankruptcy law.
In a statement, Sequor Law called Dawson a “leader” and highlighted his research focus in cross-border insolvency and labour law.
“Drew is truly deserving of this award and we are honoured to count his expertise among our ranks at Sequor Law. He is an outstanding example of our firm’s unsurpassed leadership in the practice, and demonstrates a relentless pursuit of success through his many invaluable contributions on behalf of our clients,” founding shareholder Ed Davis said in the statement.
Dawson has worked at the University of Miami as a professor of law for the past nine years and currently also holds the title of vice dean of academic affairs.
He regularly appears as a presenter and a panellist at conferences held by the Southeastern Association of Law Schools, the Hispanic National Bar Association and the American Bankruptcy Institute (ABI), taking part in the latter’s Commission to Study the Reform of Chapter 11 between 2012 and 2014.
Dawson has also contributed to the study of cross-border insolvency under the UNCITRAL Model Law. He lays claim to producing the first empirical study of Chapter 15 following its adoption in 2005. The study, entitled “Offshore Bankruptcies”, was published in Nebraska Law Review in 2009.
His most recent publication in the Chicago-Kent Law Review hones in on the topic of modularity in understanding how to apply the UNCITRAL Model Law, according to his resume. The concept – which suggests the Model Law should be understood as a “modular” system that divides complex cases into a hierarchy of components – was intended to resolve questions over the cross-border recognition of judgments following the UK Supreme Court’s 2012 Rubin decision, where it refused to enforce a US bankruptcy court’s ruling against a person who had not submitted to UK courts.
Dawson received his BA from Massachusetts-based Williams College and completed his JD at Harvard Law School. While at Harvard, he received an ABI Medal of Excellence, awarded to the student with the highest grade on a participating law school bankruptcy course.
Early in his career, Dawson clerked for Judge Jane Roth at the US Court of Appeals for the Third Circuit and for Judge Peter Walsh at the US Bankruptcy Court for the District of Delaware.
His first role in academia was at Harvard as a Kauffman Legal Fellow, awarded for research on the public sector, during which he researched bankruptcy law and corporate reoganisations. During the fellowship he had the opportunity to edit Chapter 11-related research by former Harvard bankruptcy professor turned-senator and US Presidential hopeful Elizabeth Warren.
The bankruptcy chair is Judge Cristol’s second major donation to the University of Miami. In 2012, he named the school’s pro bono bankruptcy clinic after his late wife Eleanor.
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