August 4, 2009
Tata Says to Its Employees, "Sue Me in India" -- Court Says Tough Toenails
As reported, this presents itself as a very curious case.
Foreigners working in the United States who claim they were cheated out of their tax refunds have won the right to have their employment dispute heard in American courts, defeating efforts by India's largest conglomerate to force arbitration overseas.
Why would Tata demand its US-based foreign workers 1) sign powers of attorney to allow the company to file their US income taxes for them and 2) sign over their federal and state refunds checks to the company? And then attempt to force the dispute into arbitration IN INDIA?
I know what it sounds like to me.
You will find many of the comments here to be enlightening.
Here's the opinion, courtesy of Atty. Brian Pedigo of Irvine, California.
United States Court of Appeals, Ninth Circuit.
Gopi VEDACHALAM, on behalf of himself and all others similarly situated; Kangana Beri,
Plaintiffs-Appellees,
v.
TATA AMERICA INTERNATIONAL CORPORATION;
Tata Consultancy Services, Ltd., an Indian corporation; Tata Sons, Ltd., an Indian corporation,
Defendants-Appellants.
Gopi Vedachalam, on behalf of himself and all others similarly situated; Kangana Beri, Plaintiffs-
Appellees,
v.
Tata America International Corporation; Tata Consultancy Services, Ltd., an Indian corporation; Tata
Sons, Ltd., an Indian corporation, Defendants-Appellants.
Nos. 07-15504, 08-15521.
Argued and Submitted March 11, 2009.
Filed July 30, 2009.
Kelly M. Dermody, Esquire, Daniel Morris Hutchinson, Lieff Cabraser Heimann & Bernstein,
LLP, James Michael Finberg, Michael Rubin, Altshuler Berzon LLP, Steven M. Tindall, Esquire,
Rukin, Hyland, Doria & Dufrane, LLP, San Francisco, CA, for Plaintiffs-Appellees.
Jon G. Daryanani, Michelle La Mar, Loeb & Loeb LLP, Los Angeles, CA, Kevin J. Smith, Kelley
Drye & Warren LLP, New York, NY, for Defendants- Appellants.
Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker,
Chief District Judge, Presiding. D.C. No. CV-06-00963-VRW. Before THOMAS and BYBEE, Circuit Judges, and BENITEZ FN*, District Judge. FN* The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation.
MEMORANDUM FN**
FN** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
*1 The parties are familiar with the facts and we do not repeat them here, except as is necessary to explain our decision. Plaintiffs-appellees, Gopi Vedachalam and Kangana Beri, are Indian citizens who were employees of defendants-appellants Tata America International Corporation, et al., an Indian corporation and its affiliates (collectively, “TCS”). Vedachalam and Beri brought suit against the defendants for claims relating to their employment in California, including breach of contract and various violations of the California Labor Code. The defendants appeal the district court's denial of their motion to compel arbitration under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”) and its ruling that there was no valid agreement to arbitrate the disputes at issue. We affirm.
The district court did not err in finding that the Service Agreements Vedachalam and Beri signed did
not constitute valid agreements to arbitrate the claims alleged in their suit against TCS. The Service
Agreement protects TCS from investing training resources in an employee, only to have that employee
leave; it relates to a training period and related right to exclusive employment in exchange for
training. By its own terms, the Service Agreement's arbitration provision is related only to claims
arising out of a breach of that agreement, which would be claims concerning an employee's failure
to work for TCS for the requisite period, or a surety's failure to pay the penalty. Though under
the Convention we must construe arbitration agreements liberally, and with a predisposition to enforce
them, Republic of Nicaragua v. Standard Fruit Co., 937 F.2d 469, 478-79 (9th Cir.1991), the Service
Agreement arbitration provision does not encompass claims arising from the plaintiffs' employment
in California. Additionally, the other agreements' remedial provisions-which provide different remedies
for different breaches, including the right of TCS to sue its employees-are inconsistent with interpreting
the arbitration provision in the Service Agreement to cover all disputes arising out of the plaintiffs' employment with TCS.
The 2000 letter, which only Vedachalam signed, authorizes two named individuals to be sole arbitrators
“[i]n the context of Tata Consultancy Services deputing [him] abroad and any disputes
arising thereof, ... to hear and resolve the said disputes. ”However, it is not clear that the letter is
even an agreement to arbitrate, rather than a designation of arbitrators for the Service Agreement. In
any event, the letter is not an enforceable arbitration agreement because it lacked consideration by
requiring only Vedachalam, and not TCS, to arbitrate. TCS's argument that a mutual agreement to arbitrate should be inferred is unavailing because the letter contains no mutual commitment to arbitrate
and the other agreements indicate that TCS explicitly reserved the right to litigate in U.S. courts and
collect liquidated damages for disputes arising from employee breaches. In light of TCS's having explicitly
reserved its right to litigate, we will not infer a reciprocal agreement to arbitrate all disputes arising
in the context of Vedachalam's deputation. *2 TCS's argument that its promise of continued
employment constitutes adequate consideration is similarly unconvincing. First, the letter does not
contain any promise of continued employment. Thus, even if such a promise could constitute consideration, it is absent here. Second, while a promise of continued employment may constitute consideration sufficient to support an at-will employee's promise to submit claims to arbitration, see, e.g., Demasse v. ITT Corp., 111 F.3d 730, 734-35 (9th Cir.1997), Vedachalam was not an at-will employee. Accordingly, a promise of continued employment does not constitute sufficient consideration.
AFFIRMED.
C.A.9 (Cal.),2009.
Vedachalam v. Tata America Intern. Corp.
Slip Copy, 2009 WL 2353270 (C.A.9 (Cal.))
August 1, 2009
More African Complaints About Chinese Business Practices
Following our 88 Queensway article comes this:
At several Chinese-run projects in Windhoek, workers were not wearing safety helmets. The Namibian workers said they must pay for their own safety equipment — for example, $3.65 for a helmet, $1.20 for gloves and $9.75 for overalls. “It’s not a nice place,” said another worker.
Recurring problems among Chinese employers in Africa included low wages, unpaid overtime and a lack of safety equipment such as helmets and gloves. At a construction company in Malawi, workers had to mix cement with their bare hands, the report states. In Ghana, construction workers worked nine to 12 hours a day, seven days a week, according to the report...
Many thanks to Miss Johnson from London for the link.
Posted by Richard at 12:23 AM | Comments (0)July 30, 2009
Tianjin Falls to the Japanese -- July 1937
In July 1937, Tianjin (天津－Tietsin) and Beijing (北京） fell to the Japanese. More on the event here, here and, for videos, here. Videos are in Japanese with Chinese subtitles.
Posted by Richard at 8:14 PM | Comments (0)
July 27, 2009
Tonghua Iron & Steel Workers Kill Exec in Protest Over Layoffs
More than a thousand steel workers in China's northeast staged an at-times violent protest against the planned takeover of their state-run employer and a group of them killed a top executive at the private company that was to acquire it, Chinese state-run media reported.
The article is here.
Posted by Richard at 12:49 PM | Comments (0)July 23, 2009
Video from Hong Kong of Typhoon Molave as Eyewall Passes
This video of the southern eyewall was shot by James Reynolds in Taipo, courtesy of www.TornadoVideos.net.
Posted by Richard at 9:45 PM
| Comments (0)
July 22, 2009
China Watches the Solar Eclipse
Stunning, but, if this is any indication, how many lost vision in China looking at it through sunglasses?
Posted by Richard at 6:31 PM | Comments (0)July 20, 2009
The 88 Queensway Group -- A Nexus Between Chinese State Security Organs and Private Overseas Investment?
This fascinating report on the "88 Queensway Group" by the U.S.-China Economic & Security Review Commission details the "private" overseas investment projects of Chinese state-owned entities with substantial connection to the Public Security Bureau and Chinese intelligence.
With text like this, I found it a great read for any China watcher:
Lo Fong Hung appears to serve as the public face of the 88 Queensway Group, making several public appearances on behalf of companies associated with the consortium.2 Although there is little information publicly available about Lo’s personal or professional background prior to 2003 (when New Bright was incorporated), she is listed currently as the director of no fewer than thirty-four companies incorporated in Hong Kong, most of which are listed at the 88 Queensway address. Lo’s husband, Mr. Wang Xiangfei, is a former director of China Everbright Group and currently is a nonexecutive director of China International Trust and Investment Company (CITIC), both state-owned companies in the PRC. China Everbright has been identified previously as a company affiliated with Chinese military intelligence, to include a role as a nominal employer for overseas agents operating under cover. CITIC is a huge, Chinese state-owned conglomerate, incorporating forty-four subsidiaries involved with industries as varied as financial services, telecommunications, construction, manufacturing, mining, property development, and media. Wang Xiangfei and Lo Fong Hung both have connections to China Petroleum and Chemical Corporation, also known as Sinopec, and are listed as officers of Sinopec subsidiaries.6 While Wang Xiangfei holds official leadership positions in at least six of the companies owned by the 88 Queensway Group, it is unclear exactly how much control or leadership he exerts within the Group.
If that fails to pique your interest, how about this?
On company filings, Wu lists his residential address as “No. 14 Dong Chang An Street, Beijing, China.” This address is the headquarters for the Ministry of Public Safety (MPS), a domestic security service of the Chinese government. Also located in this compound is a reception office for the Ministry of State Security (MSS), the primary state agency responsible for foreign intelligence activities.Posted by Richard at 8:09 PM | Comments (0)
Chinese Quarantine of Foreigners For Suspected Swine Flu Continues
China has quarantined 107 British students for swine flu precautions. Quarantine of foreigners for suspected swine flu has reached surprising proportions.
U.S. Embassy Spokeswoman Susan Stevenson said the embassy didn't have a total number of Americans quarantined in China, but said they were "aware of several cases at the moment." Ms. Stevenson said about 1,800 Americans had been quarantined in China since the swine-flu measures began in early May; 200 people tested positive for swine flu.
One wonders the extent of quarantine of Chinese citizens.
Posted by Richard at 1:19 PM | Comments (0)July 17, 2009
Not China: For Attorneys Whose Clients Want Your Services, But Don't Wish to Pay
How many attorneys have heard something like this from clients?
July 10, 2009
Guest Post: Lin Bai on China’s Generation Y Consumers
[Editor's Note: Much has been made of China's potential for a consumer, rather than export, driven economy. The potential has caused marketers to salivate in expectancy for centuries. However, estimates of 40 to 50 million Chinese consumers with sufficient disposable income equate China to roughly the size of the Italian market. But has the equation finally begun to change with the latest generation of Chinese to enter the workforce?
Today's post has been graciously contributed by Lin Bai, who, as a professional analyst of trends, writes from the perspective of that new generation of Chinese. Ms. Bai, born and raised in China, is a New Ventures Analyst for Metan Development Group. Prior to that, she was with Trimtabs Investment Research and International Data Corporation. Ms. Bai was educated at the University of San Francisco and the University of London.]
The Gold Mine: China’s “Post-80s” Generation of Consumers
As one of China’s post-80s generation (aka Generation Y), I still remember my glory days in high school. A pair of Nike Michael Jordan sneakers, a Motorola pager, or a Giant-brand mountain bike – and you were the most popular kid in your class. In Mainland China, the post-80s generation refers to those born after 1980 and before 1990. According to China’s census yearbooks, 200 million children were born during this time period. This generation is gradually becoming one of the most lucrative segments ever coveted by marketers, the so-called China “gold mine”.
Our “post-80s” generation has more disposable income and a greater appetite for consumption, partly driven by international ties. We are addicted to the Internet and video games and constitute the majority of online shoppers. We are more receptive to new things, follow latest fashion and trends, and are quickly becoming the face of China.
As a result of China’s one–child policy, this generation is cursed with the “me” factor. With no siblings to compete with, we are considered the “little emperors and the little princesses” of the family. And unlike children in the US or in the other countries, this generation is fully financially supported by their parents well into their twenties or, at the very least, until they graduate from college (many of them still rely on their parents even after they get a job). In fact, according to the China Research Center on Aging, a surprising 30% of working age employees in China are supported by their parents.
The post-80s generation has a markedly different behavior in consuming than their parents. This generation believes that money is something to be made and not saved. We are confident that we can (and will) make big “bucks” in the future - especially after an intensive education starting at primary school. We also believe if we cannot afford a high-rise apartment or a Mercedes Benz with our current salary, why not spend and pretend that we can. Thus, an introduction to the so-called “Moonlight Group” (people who live paycheck to paycheck, spending it all by month’s end). We also focus less on a product’s usefulness than on its appeal. Purchases are heavily based on appearance, popularity, and what I like to refer to as the “flash” factor—how much attention they would get from the others if they own it.
In the next few years, the post-80s generation will constitute (as some of them already do) most of China’s entire middle-class. Not only are we better educated and start earlier at making substantial money than previous generations, we are doing this across all industries including sports, entertainment, IT and business. Piano prodigy Lang Lang, world champion hurdler Liu Xiang, NBA basketball players Yao Ming and Yi Jianlian are some of this generation’s celebrities – who are also representatives of this new generation of China’s “gold mine”. In fact, in Forbes’ 2009 annual “Top 10 Chinese Celebrities List”, 50% of those listed belong to the post-80s generation.
This generation’s product consumption was a key factor in China's retail growth in 2008 - representing 20% of all spending (China Market Research Group).
As a part of this lucrative member of this post-80s generation, I’m actually quite excited to see what the future holds in China. I can proudly boast that I’m making history and changing China as an economic force. Whether it’s for the better (or for the worse), I’m a proud part of that change. So, the next time you decide you want to tap into the largest group of consumers in the world – think of this “spoiled, egotistical, self-centered, and rebellious” crowd. Think China and join the gold rush!
Posted by Richard at 3:42 PM | Comments (0)July 6, 2009
North Korea TV Shows First Beer Ad
The first person to send me a bottle (can't be empty) of this brew wins this blog's Annual Champion Reader Award!
July 2, 2009
US University Researcher Sentenced to Prison for Violation of Export Control Act
Further to this September, 2008 post, a Tennessee University researcher has been sentenced to four years in prison for violation of the Export Control Act. Doug Jacobson writes about it on his excellent trade law blog, here. The court did not assess any monetary penalties.
Posted by Richard at 4:50 PM | Comments (0)July 1, 2009
China Law Bibliography -- 2009 -- Now Available for Free Download
Knut Pissler, researcher in law at the Max Planck Institute for Comparative and International Private Law, and his co-editors, have graciously allowed us the opportunity to make available for download their China Law Bibliography. An excellent tool for researchers both in academia and law practice. I will also place this in the research tools section on the right sidebar at a later date.
June 30, 2009
Sony PCs and Green Dam Filtering Software
Sony seems to have shipped PCs with new filtering software, with interesting instructions to consumers.
Formaldehyde Found by Vietnamese in Clothes Made in China
Given our prior posting on dangerous imports and reader reaction, this may be of interest to readers.
The Hanoi Market Control Sub-agency has affirmed that China-made clothes contain formaldehyde, a substance which is harmful to human skin, with the content ratio of less than 2 percent. No official conclusion has been released because no regulation covers this issue.
[Thanks to Trade Lawyer twitter for the onpass.]
Posted by Richard at 2:51 PM | Comments (0)Hong Kong/Mainland China Cross Border Trade to Be Settled in Yuan By Next Month
It appears that cross-border trade between Hong Kong and mainland China may be settled in yuan as early as next month. [Thanks to Frank Caruso at the Chinatex blog.]
Note the limitations:
The State Council said early in April that it would allow traders in Shanghai, Guangzhou, Shenzhen, Zhuhai and Dongguan to settle their cross-border business in yuan.
In December, the council said Hong Kong and Macau would be permitted to use yuan for the settlement of trade with designated partners in Guangdong and the Yangtze River Delta under a pilot scheme. Mr Zhou said how many mainland enterprises participated in the scheme would depend on the governments of the two delta regions but “there will be at least a few hundred”.
Mr Yam said all Hong Kong exporters and importers could settle trade with their designated mainland counterparts, but the scheme could only be implemented after the PBOC issued administrative guidelines.
One has been reading pronouncements about convertibility since the early 1980s. This writer is still unsure that full convertibility will ever take place, if only because -- without consideration of economic or financial reasons -- convertibility takes substantial control out of the hands of those who have enjoyed it for so many years. This project, at least described by the article, appears to be a beta test.
Posted by Richard at 1:40 PM | Comments (0)June 29, 2009
Legal Trade Mission to China, Privately Sponsored
Now here is a new idea, or at least something I've not heard of before. A legal trade mission to China, organized by Brian Su, who is not himself an attorney, as far as I know. Brian tells me that a good number of law firms and companies in China have committed to meetings with any attorney who might wish to drum up business in China. There is a fee. (Please note that I post this not because I am paid for it -- and I'm not -- but simply to alert people who may wish to look into it.)
Posted by Richard at 1:52 PM | Comments (0)June 24, 2009
A Further Twist to the Old Attorney Email Scam
Asiabizblog is becoming something of a repository for attorney scam e-mails. Many Google searchers have come to Asiabizblog through keywords associated with scam e-mails they have received. Good for you!
I receive at least one a week. Here is the latest -- and the first one to come from a Gmail address, which cannot be tracked any further than the Gmail origin itself. However, my spam filter immediately placed in the junk folder. If your mail application does not have a spam filter, you need one.
Dear Counsel,I am sending this email as a mutual introduction. Mr Patrick Wong is the Managing Director of Toho Technology Co. Toho Technology Co. is a manufacturer and supplier of coils and transformers. Toho Technology is owed payment on shipments that they made to customers here in the US from Febuary 2007. The company is now seeking advice and possible representation in litigation against the non-paying companies in your state.
I can not handle this matter at this point because it is out of our jurisdiction.I have represented this company in the past, therefore I am assisting them in finding an attorney in the required state. Kindly contact Mr. Patrick Wong if you are interested in representing him. Below is his contact information as follows:
Patrick Wong
Toho Technology (H.K) Co. Ltd
pwong273@gmail.com
Should you have any questions please contact me through my email (NicholasWrightLaw@gmail.com). I encourage you to contact one another to see if this is a situation where you can work together.
Sincerely,
Nicholas Wright, Esq.
NicholasWrightLaw@gmail.com.
This e-mail is as transparent as they come.
1. It is not addressed to me personally.
2. The e-mail apparently originated at a Gmail return address, where company address should be expected.
3. Who the heck is Nicholas Wright, other than an alter ego for the sender? If he is an attorney, what is his contact information? Where is he admitted?
in fact, NicholasWrightLaw@gmail.com is listed as a 419 scam.
Posted by Richard at 1:56 PM | Comments (1)June 19, 2009
Asiabizblog is Twittering
http://twitter.com/Asiabizblog
Posted by Richard at 9:25 PM | Comments (0)June 12, 2009
Law Firm Loses $400,000 to Scammers
$400,000 lost to overseas scammers in what should by now be a well-known modus operandi to American attorneys.
Bradley Arant Boult Cummings has reportedly fallen victim to a sophisticated debt collection scam, to the tune of more than $400,000.
The Nashville Post...reports that the law firm wired more than $400,000 to the foreign bank account of a scammer posing as a client. Lawyers at the firm believed the funds were covered by a check it had deposited—a check that turned out to be phony.
Read the article to learn more about the precise method by which the scam operated. No email communication was mentioned, but entirely consistent with similar scams we have described many times on this weblog.
Just the other day I received another invitation to dance:
Jinan Haohua Industry, Co. Ltd
153 Wardour Street. London.
W1F 8WN.
(+) +44 704 574 7799Attention: Counsel,We the management of Jinan Haohua Industry, Co. Ltd, require your legal representation for our North American Customers. Jinan Haohua Industry, Co. Ltd, a manufacturer and supplier of chemical, we are been owed payment on a shipment that we made to a customer in America in June 2008 and now seeking advice and possible representation in litigation against the non-paying company.We are of the opinion that the ability to consolidate payments from North America will eradicate delays due to inter-continental monetary transaction between the UK and North America. We understand that a proper Attorney Client Retainer will provide the necessary authorization and we are most inclined to commence talks as soon as possible.Your consideration of our request is highly anticipated and we look forward to your prompt response.Sincerely,Chang Ming Cheng,Managing Director.Let's briefly review what's suspicious about this e-mail:
1) It arrived from a generic e-mail provider, not a company address: Chang Ming Cheng [chang_mngcheng@yahoo.co.uk].
2) My name, law firm and address are nowhere to be found. Clearly, an email blast. Scammers are lazy, looking for easy pickings. They will not spend the time and money focusing on a handful of suckers when 100,000 are out there.
3) E-mail properties display this information:
Received: from coal.daxa.net ([202.145.6.71]:52698) by jeep.websitewelcome.com with esmtps (TLSv1:AES256-SHA:256)
According to this page, that server (202.145.6.71) is in Jakarta, which received the email most likely from a server in Hong Kong or Singapore.
4) 153 Wardour Street in London does not exist! 151 is an office building and 155 is a storefront. A falafel restaurant!
I did all of this research in less than five minutes. I would have been happy to take 1/100 of Bradley Arants's alleged loss as payment for services rendered to them in doing due diligence on that purported client and not see them in the situation they're in now. In fact, attorneys must be able to perform this simple research either by themselves or through people who can, especially when the Internet is involved.
Forewarned and forearmed!
Posted by Richard at 2:07 PM | Comments (0)
June 8, 2009
Audio Event: Bob Compton, Win In China Filmmaker
Bob Compton, producer of Win in China, talks about his film and the business plan competition it documents.
See below for a video clip from the film: Win in China (www.wininchinamovie.com)
Posted by Richard at 3:25 PM | Comments (0)
Video: Win In China -- A New Documentary on China Business
A clip from the documentary film, Win in China (http://www.wininchinamovie.com):
Posted by Richard at 3:18 PM | Comments (0)
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