calvoiper
join:2003-03-31
Belvedere Tiburon, CA
| reply to matrix3D
Settle down, everybody....
Allright, let's review how this mess happened, and why the US Court system isn't necessarily the problem here.
When a foreign company is sued in the US, it basically has two options: First, it can stay home, say it has no involvement in the US sufficient to give the US jurisdiction, and ultimately depend on its home country to determine whether or not any US judgement was proper (i.e., if the US had "jurisdiction") and can be enforced in the foreign company's home. Second, it can appear in the US court and fight the battle here, essentially "submitting" to US jurisdiction. What a foreign company cannot do is "submit" and fight here, and then challenge the result at home--you don't get two bites out of the apple, you have to choose where to fight the jurisdictional question. And, if you choose "home" (the foreign country) and lose at home, you're stuck with whatever the US decided in your absence.
Spamhaus, however, seemed to stutter between those rules--another no-no. Initially, it picked the second route, it appeared (in fact, did more than "appear", it forced the transfer of the case from state to federal court) and it filed papers (an "answer", in legal terms) to defend itself. Then, it changed its mind, withdrew its filings, and chose to ignore the US case. Ignoring the US can be a valid (if risky) strategy, but it needs to be done from the beginning--not after you've told the court "I'm here, I'm defending myself, let's rock & roll." The court then said, essentially, (after making sure that Spamhaus's former lawyer had communicated this risk to Spamhaus) said, "OK, you showed up, started to play, and then quit. You lose." This is known as a "default".
When Spamhaus found out how big its loss was (and how much they were risking, using a late, unnecessarily timed risk) they got a new lawyer (GOOD IDEA) and started challenging the default judgement.
What the Appellate Court said was not that entry of the default was wrong, but that the court should have looked harder at how big the judgement should be. I.e., Spamhaus probably still loses, but maybe not so much money. It appears that Spamhaus will still try to challenge the jurisdiction of the US in its home (England) but it has really hurt itself in that challenge by becoming as involved as it has in the US Courts.
Again, it's a choice foreigners have--to either play ball here and accept the result, or to stay away and claim later that there was no reason they should have had to play ball here. Spamhaus's problem is that it couldn't make up its mind which path to take, and it looks like it shafted itself by choosing the wrong step on multiple occasions by becoming involved enough here to accept the result but not staying involved here enough to win when it needed to.
Believe me, my sympathies here are with Spamhaus--but they have really shot themselves in the foot on this one.
calvoiper
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