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Tiffany and Company v. Andrew
2012 WL 5451259 (S.D.N.Y.)
Looking for Counterfeiters' Bank Accounts
Tiffany (plaintiffs) alleges that Andrew and others (defendants) sold counterfeit Tiffany products through several websites hosted in the United States. Andrew accepted payment in U.S. dollars, used PayPal, Inc. to process customers' credit card transactions, and then transferred the sales proceeds to accounts held by banks in China (Banks).
Andrew defaulted on the suit, and Tiffany subpoenaed the Banks to learn the identity of the holders of the accounts into which the proceeds of the counterfeit sales were transferred. The Banks involved all maintained branch offices in the Southern District of New York, and the subpoenas were served on those branch offices, but the records were in China. The New York banks deferred to the Hague process.
Tiffany submitted its Hague Convention application to the appropriate agency in China (MOJ) and the agency responded by producing some of the information and documents requested, but not all of the information and documents requested. Tiffany moved to enforce the subpoenas previously served on the New York branches of the Banks to get the information it needs, including all accounts counterfeiters hold at the Banks and details on wire transfer records on their deposits and withdrawals.
PITMAN, Magistrate Judge
The Banks, through the MOJ, have unquestionably produced relevant, responsive documents. Although I am not aware of any statistical compilations, based on my experience as a Magistrate Judge, China's nine-month response time is, at most, only slightly longer than the response time I have seen in other cases involving Hague Convention requests; it is not so long that the process can be described as futile.
Second, the scope of the Banks' production has not been so narrow that resort to the Convention can fairly be described as futile. The account holders' identities and addresses have been identified as well as transaction histories. Plaintiffs' argument that additional documents concerning transfers into and out of the accounts will lead to a fuller understanding of the trademark counterfeiting operation is extremely speculative. While I understand plaintiffs' desire to identify the source of the counterfeit merchandise, the bank transfer information they are seeking will be at, at most, a small step that may or may not lead to that goal. In an effort to frustrate detection and tracing, many domestic transactions in illegal or contraband merchandise are conducted in cash. The possibility that individuals in China who deal in counterfeit trademarked jewelry follow a similar practice is a further reason to believe that additional bank transaction documents will not provide fruitful information.
Absent extraordinary circumstances, it would not comport with considerations of "practicality and wise administration of justice" for the courts of one nation as a matter of course to sit in judgment of the adequacy of due process and the quality of justice rendered in the courts of other sovereigns. There can be no room for arrogance or presumption, or for extravagant rules or practices that may encourage insularity or chauvinism rather than respect for comity. It cannot be the proper province of any one judge in any one country, giving expression to the push of a moment or the pull of the immediate case, to promulgate judgments that impose that court's rule and will across all sovereign borders so as to reach the rest of humankind.
In summary, resort to the Hague Convention here has not proven futile. Although China, pursuant to its reservation of rights under the Convention, has not produced all the documents that would be required under the Federal Rules of Civil Procedure, its production is sufficient for plaintiffs to continue their investigation concerning the counterfeit goods at issue in their subpoenas against the Banks' New York branches is, therefore, denied.
Why will the court not issue subpoenas to the Chinese government?