A09652 Summary:

BILL NO    A09652B

SAME AS    SAME AS S06687-C

SPONSOR    Lancman

COSPNSR    Jaffee, Zebrowski K, Fields, Alfano, Lavine, Maisel

MLTSPNSR   Koon, Latimer, Lifton, McDonough, Paulin

Amd SS5304 & 302, CPLR

Relates to personal jurisdiction and enforceability of certain foreign
judgments in cases involving defamation.
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A09652 Actions:

BILL NO    A09652B

01/09/2008 referred to judiciary
02/05/2008 amend and recommit to judiciary
02/05/2008 print number 9652a
02/12/2008 reported referred to codes
03/11/2008 reported 
03/13/2008 advanced to third reading cal.776
03/17/2008 substituted by s6687b
           S06687  AMEND=C  SKELOS
           01/09/2008 REFERRED TO CODES
           01/28/2008 AMEND AND RECOMMIT TO CODES
           01/28/2008 PRINT NUMBER 6687A
           02/12/2008 1ST REPORT CAL.323
           02/13/2008 AMENDED 6687B
           02/13/2008 2ND REPORT CAL.
           02/25/2008 ADVANCED TO THIRD READING 
           02/27/2008 PASSED SENATE
           02/27/2008 DELIVERED TO ASSEMBLY
           02/27/2008 referred to codes
           03/17/2008 substituted for a9652a
           03/17/2008 ordered to third reading cal.776
           03/26/2008 RECALLED FROM ASSEMBLY
           03/26/2008 substitution reconsidered
           03/26/2008 recommitted to codes
           03/26/2008 returned to senate
           03/26/2008 VOTE RECONSIDERED - RESTORED TO THIRD READING
           03/26/2008 AMENDED ON THIRD READING 6687C
           03/31/2008 REPASSED SENATE
           03/31/2008 RETURNED TO ASSEMBLY
           03/31/2008 referred to codes
           03/31/2008 substituted for a9652b
           03/31/2008 ordered to third reading cal.776
           03/31/2008 passed assembly
           03/31/2008 returned to senate
           04/18/2008 DELIVERED TO GOVERNOR
           04/28/2008 APPROVAL MEMO.5
           04/28/2008 SIGNED CHAP.66
           03/26/2008 substitution reconsidered
           03/26/2008 restored to third reading
           03/26/2008 amended on third reading 9652b
           03/31/2008 substituted by s6687c
                      S06687  AMEND=C  SKELOS
                      01/09/2008 REFERRED TO CODES
                      01/28/2008 AMEND AND RECOMMIT TO CODES
                      01/28/2008 PRINT NUMBER 6687A
                      02/12/2008 1ST REPORT CAL.323
                      02/13/2008 AMENDED 6687B
                      02/13/2008 2ND REPORT CAL.
                      02/25/2008 ADVANCED TO THIRD READING 
                      02/27/2008 PASSED SENATE
                      02/27/2008 DELIVERED TO ASSEMBLY
                      02/27/2008 referred to codes
                      03/17/2008 substituted for a9652a
                      03/17/2008 ordered to third reading cal.776
                      03/26/2008 RECALLED FROM ASSEMBLY
                      03/26/2008 substitution reconsidered
                      03/26/2008 recommitted to codes
                      03/26/2008 returned to senate
                      03/26/2008 VOTE RECONSIDERED - RESTORED TO THIRD READING
                      03/26/2008 AMENDED ON THIRD READING 6687C
                      03/31/2008 REPASSED SENATE
                      03/31/2008 RETURNED TO ASSEMBLY
                      03/31/2008 referred to codes
                      03/31/2008 substituted for a9652b
                      03/31/2008 ordered to third reading cal.776
                      03/31/2008 passed assembly
                      03/31/2008 returned to senate
                      04/18/2008 DELIVERED TO GOVERNOR
                      04/28/2008 APPROVAL MEMO.5
                      04/28/2008 SIGNED CHAP.66
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A09652 Votes:

There are no votes for this bill in this legislative session.
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A09652 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A9652B
 
SPONSOR: Lancman
  TITLE OF BILL: An act to amend the civil practice law and rules, in relation to enforceability of certain foreign judgments   PURPOSE OF BILL: This bill would effectively overrule the recent New York Court of Appeals December 2007 decision in Ehrenfeld v. Mahfouz and protect New Yorkers and New York based publishers and media outlets from local enforcement of foreign defamation judgments designed to squelch their freedom of expression. Overseas jurisdictions, lacking the free speech and free press protections guaranteed by the New York and United States constitutions, often have libel laws designed to discourage and inhibit free expression, rather than promote it. Despots and terrorist networks whose activities have been exposed by American authors and news organizations have increasingly turned to such jurisdictions to obtain defamation verdicts which they could never obtain in an American court in order to harass and intimidate American authors and journalists. This bill would prohibit enforcement of such unfair overseas defamation judgments in New York and give New Yorkers and New York based publishers and media outlets the ability to obtain a declaration in a New York Court to that effect.   SUMMARY OF PROVISIONS: OF BILL: Adds subdivision 2(b) (8) to section 5304 of the Civil Practice Law and Rules, prohibiting enforcement in New York of an overseas defamation judgment unless a New York court deter- mines that the overseas defamation law satisfies the freedom of speech and press protections guaranteed by the New York and United States constitutions; adds subdivision (d) to section 5304 of the Civil Prac- tice Law and Rules, providing the courts of this state with personal jurisdiction over any person who obtains a judgment in a defamation proceeding outside the United States against any person or entity who is a resident of New York or is amenable to jurisdiction in New York, for the purposes of rendering declaratory relief with respect to that resi- dent's liability for the judgment, provided: (1) the publication at issue was published in New York, and (2) that resident or person/entity is amenable to jurisdiction in New York (a) has assets in New York which might be used to satisfy the foreign defamation judgment, or (b) may have to take actions in New York to comply with the foreign defamation judgment.   JUSTIFICATION: American journalists and authors who relentlessly and doggedly pursue the truth about terrorism's enablers - the financiers, frontmen, promo- ters, apologists and logisticians who made attacks like 9/11, the Madrid railroad explosions and the London bus and subway bombings possible - are being met with a barrage of libel lawsuits designed to stifle their reporting filed in overseas jurisdictions not sharing our belief, famously articulated by the Supreme Court over forty years ago in N.Y. Times Co. v. Sullivan, "that debate on public issues should be uninhib- ited, robust, and wide-open." Having been routed in numerous defamation cases against journalists, authors and advocacy groups brought here in the United States, the subjects of these exposes are filing defamation claims in foreign courts - England, primarily with lopsided defamation laws that make it virtually impossible, both logistically and substan- tively, for authors to defend their work on the merits. The case of Dr. Rachel Ehrenfeld, a distinguished and prolific New York based researcher and the author of "Funding Evil: How Terrorism is Financed - and How to Stop It," is typical. The book identifies a promi- nent Saudi businessman as a financier of organizations with terrorist ties. Twenty-three copies of her book were sold in England, and excerpts of it were posted on a television station website accessible in England. The Saudi businessman sued Dr. Ehrenfeld in a London court, where he has sued many others who published similar conclusions about his terrorist ties. Dr. Ehrenfeld had neither the financial means to litigate her case in England nor the desire to dignify, let alone submit to, England's asphyxiating defamation laws. The Saudi businessman won a default judg- ment requiring Dr. Ehrenfeld to pay him $225,000 in damages and legal fees, publicly apologize and, as interpreted by his lawyers, destroy all remaining copies of her book. The Saudi businessman has cleverly with- held actually attempting to enforce the judgment against Dr. Ehrenfeld in New York, lest he trigger the potential that an American court will refuse to enforce the English judgment. But he has already accomplished his goal. Dr. Ehrenfeld feels the weight of self-censorship every work- ing moment; her publishers are suddenly backing away from running her work. And Dr. Ehfenfeld's intellectual detention has no end in sight. In December 2007, New York State's highest court relied on a narrow and hyper-technical reading of New York's personal jurisdiction laws against non-resident defendants like the Saudi businessman who sued Dr. Ehren- feld overseas to block a lawsuit filed by Dr. Ehrenfeld in New York to declare the defamation judgment unenforceable against her in New York. So the English judgment will forever hang over Dr. Ehrenfeld's head like the sword of Damocles. The "Libel Terrorism Protection Act" would protect journalists and authors by declaring overseas defamation judgments unenforceable in New York unless the foreign defamation law provides, in substance and appli- cation, the same free speech protections guaranteed under our own constitution, and by giving New York residents and publishers the oppor- tunity to have their day in court here in New York.   LEGISLATIVE HISTORY: New bill, 2008.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: Immediately.
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A09652 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         9652--B
                                                                Cal. No. 776
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 9, 2008
                                       ___________
 
        Introduced  by M. of A. LANCMAN, JAFFEE, K. ZEBROWSKI, FIELDS, ALFANO --
          Multi-Sponsored by -- M. of A. KOON, LIFTON, McDONOUGH, PAULIN -- read
          once  and  referred  to  the  Committee  on  Judiciary  --   committee
          discharged, bill amended, ordered reprinted as amended and recommitted

          to  said  committee  --  reported  from committee, advanced to a third
          reading, amended and ordered reprinted, retaining  its  place  on  the
          order of third reading
 
        AN  ACT  to  amend  the  civil  practice  law  and rules, in relation to
          enforceability of certain foreign judgments
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Short title.  This act shall be known and may be cited as
     2  the "libel terrorism protection act".
     3    § 2. Section 5304 of the civil practice law and  rules,  as  added  by
     4  chapter 981 of the laws of 1970, is amended to read as follows:
     5    §  5304.  Grounds  for  non-recognition. (a) No recognition. A foreign
     6  country judgment is not conclusive if:
     7    1. the judgment was rendered under a system  which  does  not  provide

     8  impartial  tribunals  or  procedures compatible with the requirements of
     9  due process of law;
    10    2. the foreign court did  not  have  personal  jurisdiction  over  the
    11  defendant.
    12    (b) Other grounds for non-recognition. A foreign country judgment need
    13  not be recognized if:
    14    1.  the  foreign  court  did  not  have  jurisdiction over the subject
    15  matter;
    16    2. the defendant in the proceedings  in  the  foreign  court  did  not
    17  receive  notice  of  the proceedings in sufficient time to enable him to
    18  defend;
    19    3. the judgment was obtained by fraud;
    20    4. the cause of action on which the judgment is based is repugnant  to
    21  the public policy of this state;
    22    5. the judgment conflicts with another final and conclusive judgment;
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets

                              [ ] is old law to be omitted.
                                                                   LBD14685-12-8

        A. 9652--B                          2
 
     1    6.  the  proceeding  in the foreign court was contrary to an agreement
     2  between the parties under which  the  dispute  in  question  was  to  be
     3  settled otherwise than by proceedings in that court; [or]
     4    7.  in  the  case  of jurisdiction based only on personal service, the
     5  foreign court was a seriously inconvenient forum for the  trial  of  the
     6  action[.]; or
     7    8. the cause of action resulted in a defamation judgment obtained in a
     8  jurisdiction  outside  the  United States, unless the court before which
     9  the matter is brought sitting in this state first  determines  that  the

    10  defamation  law  applied in the foreign court's adjudication provided at
    11  least as much protection for freedom of speech and press in that case as
    12  would be provided by both the United States and New York constitutions.
    13    § 3. Section 302 of the civil practice law and  rules  is  amended  by
    14  adding a new subdivision (d) to read as follows:
    15    (d)  Foreign defamation judgment.  The courts of this state shall have
    16  personal jurisdiction over any person who obtains a judgment in a  defa-
    17  mation  proceeding outside the United States against any person who is a
    18  resident of New York or is a person or entity amenable  to  jurisdiction
    19  in  New  York  who has assets in New York or may have to take actions in
    20  New York to comply with the judgment,  for  the  purposes  of  rendering

    21  declaratory relief with respect to that person's liability for the judg-
    22  ment, and/or for the purpose of determining whether said judgment should
    23  be  deemed non-recognizable pursuant to section fifty-three hundred four
    24  of this chapter, to the fullest extent permitted by  the  United  States
    25  constitution, provided:
    26    1. the publication at issue was published in New York, and
    27    2.  that  resident  or person amenable to jurisdiction in New York (i)
    28  has assets in New York which might be used to satisfy the foreign  defa-
    29  mation  judgment, or (ii) may have to take actions in New York to comply
    30  with the foreign defamation judgment. The provisions of this subdivision
    31  shall apply to persons who obtained judgments in defamation  proceedings

    32  outside  the  United  States prior to and/or after the effective date of
    33  this subdivision.
    34    § 4. This act shall take effect immediately.
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