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| Copyright © 2009-2013, Marc CAMPUS |
15 March 2007
MEMORANDUM OF LAW
STATEMENT OF ASSIGNMENT
You have asked me to write a memorandum of law regarding several claims against ACAM, Chamber of the Notaires, High
Council of Notairal Profession and MMA for its wrongful conduct of concealing an international violation made by the Notaire
and whether this conduct will be enforced under US law.
ISSUES
1. Whether jurisdiction requirements can be satisfied as to ACAM, Chamber of the Notaires, High Council of Notairal
Profession and MMA due to its foreign state status?
2. Whether the monopoly situation and/or unfair agreement between the Chamber of the Notaires, High Council of Notairal
Profession, MMA and ACAM can be forced on individuals and/or companies?
3. Whether ACAM, Chamber of the Notaires, High Council of Notairal Profession and MMA can enforce its abuse of a
powerful position and abuse of right?
STATEMENT OF THE FACTS
On September 27, 2004, Texas Riding Line Co. filed a claim with the Chamber of the Notaires for the professional liability of
Me Duchan, Notaire. MMA, the insurance company for the Notaires, opened the claims file by sending a letter to Texas Riding
Line Co. with a distorting version of the facts. If a claimant thinks that his claim is not addressed by the Chamber of the
Notaires, he can appeal to the High Council for the Notarial Profession, but due to their conflict of interest they were forbidden
to respond.
On March 23, 2006, Texas Riding Line Co. filed a complaint before the Commission de Controle des Assurances (ACAM),
which is the French Control Office of Insurance, against French defendants La Mutuelle du Mans Assurances I.A.R.D. (MMA)
and its president Jean Claude Seys alleging bad faith and unfair business settlement practices.
However, ACAM failed to conduct a proper investigation regarding the complaint filed by Texas Riding Line Co. and issued its
reply on November 8, 2006 in MMA’s favor asserting that MMA did not commit bad faith or unfair business practices.
ANAYLSIS
1. Whether jurisdiction requirements can be satisfied as to ACAM, Chamber of the Notaires, High Council of Notairal
Profession and MMA due to its foreign state status?
a. Foreign Sovereign Immunities Act
To determine if defendants will be allowed to continue its abuse of power and wrongful conduct will first depend on
jurisdiction. Plaintiff will have to establish jurisdiction over the French public/semi public actors. The Foreign Sovereign
Immunities Act of 1976 (FSIA) or (the Act) authorizes federal civil suits against foreign states “as to any claim for relief in
personam with respect to which the foreign state is not entitled to immunity” under another section of the FSIA or under “any
applicable international agreement.” 28 U.S.C. § 1330 (a). The Act defines the term “foreign state” to include a state’s political
subdivisions, agencies and instrumentalities. 28 U.S.C. § 1603(a). The Act is not applicable to private corporations. The
Chamber of the Notaires has disciplinary power by law to represent the notaire profession. The High Council of Notairal
Profession handles the appeals from the Chamber of the Notaires when a claimant feels their claim is not properly
addressed. MMA was a French public entity until 1987, but still its top officers are mainly coming from the public sectors or
affiliated to the Notarial profession. ACAM is based on several services directed by the secretary-general of the authority. The
services of the Controlling authority are directed by a secretary-general named among the members of the body of control of
insurances by joint public decree of the ministers of the economy/financial/industry. Due to the nature of its duties, defendants
should be viewed as regulatory agencies under the foreign state definition which would make the FSIA applicable.
However, defendants may try to argue that they are entitled to absolute immunity according to the FSIA. Foreign sovereign
immunity’s principal purpose is to give foreign states and their instrumentalities some present protection from the
inconvenience of suit. Dole Food Co. v. Patrickson, 538 U.S. 468 (2003). The objective of the sovereign immunity doctrine is
simply to give foreign states and instrumentalities some protection at the time of suit as a gesture of comity. Due to its foreign
public status, defendants would probably assert immunity under the FSIA which could defeat jurisdiction over the defendants.
Plaintiff can dispute defendants’ jurisdictional defense of immunity argument by alleging an exception under the FSIA. One
exception under the Act expressly exempts from immunity all cases in which the action is based upon an act performed in the
United States in connection with a commercial activity of the foreign state elsewhere. 28 U.S.C. § 1605 (a) (2). Another
exception Plaintiff could allege is the “expropriation exception” which expressly exempts from immunity all cases involving
“rights in property taken in violation of international law provided the property has a commercial connection to the United States
or the agency or instrumentality that owns the property is engaged in commercial activity. 28 U.S.C. § 1605 (a) (3). Plaintiff
could be successful with either exception as long as Plaintiff can show that defendants’ actions were sufficient to constitute
“commercial activity” within the exceptions.
For the FSIA to be applicable, Plaintiff will have to prove that defendants engaged in substantial commercial activity in the
United States. The act must be based on a commercial activity carried on in the United States by a foreign state, which the FSIA
defines as “commercial activity carried on by such state and having substantial contact with the United States.” 28 U.S.C. §§
1603-1605. In order to sustain jurisdiction on this basis, “something more than a mere connection with, or relation to,
commercial activity” must be shown. Rodriguez v. Republic of Costa Rica, 139 F. Supp. 2d 173 (2001) (citing Saudi Arabia v.
Nelson, 507 U.S. 349, 358 (1993)).
b. Act of State doctrine
Additionally, defendants may try to argue Plaintiff’s complaint should be dismissed due to the “act of state” doctrine. Under the
“act of state” doctrine, the courts of one state will not question the validity of public acts performed by other sovereigns within
their borders, even when such courts have jurisdiction over a controversy in which one of the litigants has standing to
challenge these acts. Underhill v. Hernandez, 168 U.S. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
(1964). Distinct from a claim for sovereign immunity which merely raises a jurisdiction argument, the act of state doctrine
supplies foreign states with a substantive defense. Defendants’ job functions of regulating insurance companies and
investigating complaints of notaires are public acts that would fall under the “act of state” doctrine, thus giving defendants a
substantive defense.
However, Courts tend to ignore the “act of state” doctrine defense when the FSIA is applicable. FSIA in no way effects
application of the “act of state” doctrine because the Courts determination that the Act applies in the case in no way will affect
any argument that the act of state doctrine shields the wrongdoing. The Second Hickenlooper Amendment restricts application
of that the act of state doctrine, but only in respect to “a confiscation or other taking after January 1, 1959.” 22 U.S.C. § 2370(e)
(2).
c. Forum argument
Plaintiff may have to show an absence of remedies in France sufficient to compensate for any taking. The US courts tend to
follow international law which states ordinarily a state is not required to consider a claim by another state for an injury to its
national until that person has exhausted domestic remedies, unless such remedies are clearly sham, or inadequate or their
application is unreasonably prolonged. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). Here, plaintiff can
produce several facts that will satisfy the view that it will be impossible to receive justice in France. The Chamber of the
Notaires represents the whole profession. The High Council for the Notarial Profession represents the notarie’s interest and
advices them what they need, so they have a conflict of interest. The High Council for the Notarial Profession also negotiates
the insurance policies for all the Notaires. The ACAM intentionally failed to conduct a proper investigation into the Notaire and
MMA’s actions. ACAM was presented evidence of an international violation and it chose to ignore that fact. All these facts and
many more will prove the remedies in France are inadequate.
2. Whether the monopoly situation and/or unfair agreement between the Notaire, Chamber of the Notaires, High
Council of Notairal Profession, MMA and ACAM can be forced on individuals and/or companies?
a. Sherman Act
Plaintiff may try to argue that defendants’ actions violate the Sherman Act. Section 1 of the Sherman Act provides that “every
contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among several States,
or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. With the facts presented to me thus far, plaintiff may prevail with
the argument that a Sherman Act violation was committed due to the monopoly situation among the French public/semi public
actors (ACAM, MMA, High Council for the Notarial Profession, Chamber of the Notaires and Notaire). These public actors
regulate one hundred percent of the Notarial profession in France as well as the insurance companies in France and they
engaged in a conspiracy to conceal the truth of an international violation carried out by the Notaire. This conduct can be seen
as actions taken to preserve the monopoly situation which would constitute an unreasonable restraint on trade due to the fact
that insurance related claims affect the entire public. And, it is well established by now that the Sherman Act applies to foreign
conduct that was meant to produce and did in fact produce some substantial effect in the United States. Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 796 (1993).
ACAM and MMA may try to allege that it is entitled to antitrust immunity under the McCarran-Ferguson Act. The McCarran-
Ferguson Act provides that regulation of the insurance industry is generally a matter for the States, and that “no Act of Congress
shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business
of insurance.” 15 U.S.C. § 1012. Yet, Section 3 provides that nothing in the McCarran-Ferguson Act “shall render the Sherman
Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” 15 U.S.C. § 1013
(b). ACAM and MMA will have to prove that its activities fall inside the “the business of insurance” definition and its unfair
agreement with the other pubic/semi public actors is not a way to boycott, coerce or intimidate Plaintiff or the public.
3. Whether ACAM, Chamber of the Notaires, High Council of Notairal Profession and MMA can enforce its abuse of a
powerful position and abuse of right?
The defendants abused their authority, depriving Plaintiff of its ability to timely receive proper compensation and/or relief. The
Notarial profession represents a profession of honesty, integrity and a willingness to act within and not above the laws of the
State. ACAM also represents a profession of honesty and integrity due to its duties of investigating insurance offenders who
violate various laws implemented. By accepting the duties and obligations imposed by the specific offices, defendants entered
into an implied contract with the Plaintiff and the public to use these broad powers according to the law and in good faith.
Plaintiff and individuals of the public rely to their detriment on these representations to protect them and advise them.
CONCLUSION
For the reasons stated above, Plaintiff has several causes of action to allege against the defendants. The above list is not an
exhaustive list of possible claims. However, the above list certainly gives some good arguments against the defendants’
actions and possible actions of the US courts with the facts presented.
MEMORANDUM OF LAW
STATEMENT OF ASSIGNMENT
You have asked me to write a memorandum of law regarding several claims against ACAM, Chamber of the Notaires, High
Council of Notairal Profession and MMA for its wrongful conduct of concealing an international violation made by the Notaire
and whether this conduct will be enforced under US law.
ISSUES
1. Whether jurisdiction requirements can be satisfied as to ACAM, Chamber of the Notaires, High Council of Notairal
Profession and MMA due to its foreign state status?
2. Whether the monopoly situation and/or unfair agreement between the Chamber of the Notaires, High Council of Notairal
Profession, MMA and ACAM can be forced on individuals and/or companies?
3. Whether ACAM, Chamber of the Notaires, High Council of Notairal Profession and MMA can enforce its abuse of a
powerful position and abuse of right?
STATEMENT OF THE FACTS
On September 27, 2004, Texas Riding Line Co. filed a claim with the Chamber of the Notaires for the professional liability of
Me Duchan, Notaire. MMA, the insurance company for the Notaires, opened the claims file by sending a letter to Texas Riding
Line Co. with a distorting version of the facts. If a claimant thinks that his claim is not addressed by the Chamber of the
Notaires, he can appeal to the High Council for the Notarial Profession, but due to their conflict of interest they were forbidden
to respond.
On March 23, 2006, Texas Riding Line Co. filed a complaint before the Commission de Controle des Assurances (ACAM),
which is the French Control Office of Insurance, against French defendants La Mutuelle du Mans Assurances I.A.R.D. (MMA)
and its president Jean Claude Seys alleging bad faith and unfair business settlement practices.
However, ACAM failed to conduct a proper investigation regarding the complaint filed by Texas Riding Line Co. and issued its
reply on November 8, 2006 in MMA’s favor asserting that MMA did not commit bad faith or unfair business practices.
ANAYLSIS
1. Whether jurisdiction requirements can be satisfied as to ACAM, Chamber of the Notaires, High Council of Notairal
Profession and MMA due to its foreign state status?
a. Foreign Sovereign Immunities Act
To determine if defendants will be allowed to continue its abuse of power and wrongful conduct will first depend on
jurisdiction. Plaintiff will have to establish jurisdiction over the French public/semi public actors. The Foreign Sovereign
Immunities Act of 1976 (FSIA) or (the Act) authorizes federal civil suits against foreign states “as to any claim for relief in
personam with respect to which the foreign state is not entitled to immunity” under another section of the FSIA or under “any
applicable international agreement.” 28 U.S.C. § 1330 (a). The Act defines the term “foreign state” to include a state’s political
subdivisions, agencies and instrumentalities. 28 U.S.C. § 1603(a). The Act is not applicable to private corporations. The
Chamber of the Notaires has disciplinary power by law to represent the notaire profession. The High Council of Notairal
Profession handles the appeals from the Chamber of the Notaires when a claimant feels their claim is not properly
addressed. MMA was a French public entity until 1987, but still its top officers are mainly coming from the public sectors or
affiliated to the Notarial profession. ACAM is based on several services directed by the secretary-general of the authority. The
services of the Controlling authority are directed by a secretary-general named among the members of the body of control of
insurances by joint public decree of the ministers of the economy/financial/industry. Due to the nature of its duties, defendants
should be viewed as regulatory agencies under the foreign state definition which would make the FSIA applicable.
However, defendants may try to argue that they are entitled to absolute immunity according to the FSIA. Foreign sovereign
immunity’s principal purpose is to give foreign states and their instrumentalities some present protection from the
inconvenience of suit. Dole Food Co. v. Patrickson, 538 U.S. 468 (2003). The objective of the sovereign immunity doctrine is
simply to give foreign states and instrumentalities some protection at the time of suit as a gesture of comity. Due to its foreign
public status, defendants would probably assert immunity under the FSIA which could defeat jurisdiction over the defendants.
Plaintiff can dispute defendants’ jurisdictional defense of immunity argument by alleging an exception under the FSIA. One
exception under the Act expressly exempts from immunity all cases in which the action is based upon an act performed in the
United States in connection with a commercial activity of the foreign state elsewhere. 28 U.S.C. § 1605 (a) (2). Another
exception Plaintiff could allege is the “expropriation exception” which expressly exempts from immunity all cases involving
“rights in property taken in violation of international law provided the property has a commercial connection to the United States
or the agency or instrumentality that owns the property is engaged in commercial activity. 28 U.S.C. § 1605 (a) (3). Plaintiff
could be successful with either exception as long as Plaintiff can show that defendants’ actions were sufficient to constitute
“commercial activity” within the exceptions.
For the FSIA to be applicable, Plaintiff will have to prove that defendants engaged in substantial commercial activity in the
United States. The act must be based on a commercial activity carried on in the United States by a foreign state, which the FSIA
defines as “commercial activity carried on by such state and having substantial contact with the United States.” 28 U.S.C. §§
1603-1605. In order to sustain jurisdiction on this basis, “something more than a mere connection with, or relation to,
commercial activity” must be shown. Rodriguez v. Republic of Costa Rica, 139 F. Supp. 2d 173 (2001) (citing Saudi Arabia v.
Nelson, 507 U.S. 349, 358 (1993)).
b. Act of State doctrine
Additionally, defendants may try to argue Plaintiff’s complaint should be dismissed due to the “act of state” doctrine. Under the
“act of state” doctrine, the courts of one state will not question the validity of public acts performed by other sovereigns within
their borders, even when such courts have jurisdiction over a controversy in which one of the litigants has standing to
challenge these acts. Underhill v. Hernandez, 168 U.S. 250 (1897); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
(1964). Distinct from a claim for sovereign immunity which merely raises a jurisdiction argument, the act of state doctrine
supplies foreign states with a substantive defense. Defendants’ job functions of regulating insurance companies and
investigating complaints of notaires are public acts that would fall under the “act of state” doctrine, thus giving defendants a
substantive defense.
However, Courts tend to ignore the “act of state” doctrine defense when the FSIA is applicable. FSIA in no way effects
application of the “act of state” doctrine because the Courts determination that the Act applies in the case in no way will affect
any argument that the act of state doctrine shields the wrongdoing. The Second Hickenlooper Amendment restricts application
of that the act of state doctrine, but only in respect to “a confiscation or other taking after January 1, 1959.” 22 U.S.C. § 2370(e)
(2).
c. Forum argument
Plaintiff may have to show an absence of remedies in France sufficient to compensate for any taking. The US courts tend to
follow international law which states ordinarily a state is not required to consider a claim by another state for an injury to its
national until that person has exhausted domestic remedies, unless such remedies are clearly sham, or inadequate or their
application is unreasonably prolonged. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999). Here, plaintiff can
produce several facts that will satisfy the view that it will be impossible to receive justice in France. The Chamber of the
Notaires represents the whole profession. The High Council for the Notarial Profession represents the notarie’s interest and
advices them what they need, so they have a conflict of interest. The High Council for the Notarial Profession also negotiates
the insurance policies for all the Notaires. The ACAM intentionally failed to conduct a proper investigation into the Notaire and
MMA’s actions. ACAM was presented evidence of an international violation and it chose to ignore that fact. All these facts and
many more will prove the remedies in France are inadequate.
2. Whether the monopoly situation and/or unfair agreement between the Notaire, Chamber of the Notaires, High
Council of Notairal Profession, MMA and ACAM can be forced on individuals and/or companies?
a. Sherman Act
Plaintiff may try to argue that defendants’ actions violate the Sherman Act. Section 1 of the Sherman Act provides that “every
contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among several States,
or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1. With the facts presented to me thus far, plaintiff may prevail with
the argument that a Sherman Act violation was committed due to the monopoly situation among the French public/semi public
actors (ACAM, MMA, High Council for the Notarial Profession, Chamber of the Notaires and Notaire). These public actors
regulate one hundred percent of the Notarial profession in France as well as the insurance companies in France and they
engaged in a conspiracy to conceal the truth of an international violation carried out by the Notaire. This conduct can be seen
as actions taken to preserve the monopoly situation which would constitute an unreasonable restraint on trade due to the fact
that insurance related claims affect the entire public. And, it is well established by now that the Sherman Act applies to foreign
conduct that was meant to produce and did in fact produce some substantial effect in the United States. Hartford Fire Ins. Co. v.
California, 509 U.S. 764, 796 (1993).
ACAM and MMA may try to allege that it is entitled to antitrust immunity under the McCarran-Ferguson Act. The McCarran-
Ferguson Act provides that regulation of the insurance industry is generally a matter for the States, and that “no Act of Congress
shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business
of insurance.” 15 U.S.C. § 1012. Yet, Section 3 provides that nothing in the McCarran-Ferguson Act “shall render the Sherman
Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” 15 U.S.C. § 1013
(b). ACAM and MMA will have to prove that its activities fall inside the “the business of insurance” definition and its unfair
agreement with the other pubic/semi public actors is not a way to boycott, coerce or intimidate Plaintiff or the public.
3. Whether ACAM, Chamber of the Notaires, High Council of Notairal Profession and MMA can enforce its abuse of a
powerful position and abuse of right?
The defendants abused their authority, depriving Plaintiff of its ability to timely receive proper compensation and/or relief. The
Notarial profession represents a profession of honesty, integrity and a willingness to act within and not above the laws of the
State. ACAM also represents a profession of honesty and integrity due to its duties of investigating insurance offenders who
violate various laws implemented. By accepting the duties and obligations imposed by the specific offices, defendants entered
into an implied contract with the Plaintiff and the public to use these broad powers according to the law and in good faith.
Plaintiff and individuals of the public rely to their detriment on these representations to protect them and advise them.
CONCLUSION
For the reasons stated above, Plaintiff has several causes of action to allege against the defendants. The above list is not an
exhaustive list of possible claims. However, the above list certainly gives some good arguments against the defendants’
actions and possible actions of the US courts with the facts presented.
