74 Volume 22, October–December 2016 international law update
© 2016 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
provisions selecting foreign law that includes, as a
substantive matter, a shorter-than-two-years statute
of repose.”
e Court concluded that Barnett’s “[…] relied-
upon state law neither voids this forum-selection
clause nor renders its enforcement unreasonable
under federal law. e district court was therefore
right to apply Atlantic Marine’s modied forum
non conveniens framework. As the district court
recognized, Barnett’s choice of forum merits no
weight in this analysis, and the private-interest
factors ‘weigh entirely in favor of the preselected
forum,’ Kuwait. See Atl. Marine, 134 S. Ct. at 582.
Concluding also that the district court did not
abuse its discretion by dismissing Barnett’s action,
the Court armed district court’s decision.
citation: Barnett v. DynCorp International, LLC,
831. F.3d 296 (5th Cir. 2016).
Where assets related to criminal
copyright infringement are located
abroad, Fourth Circuit ponders whether
district court has in rem jurisdiction
pursuant to 28 U.S.C. § 1355(b)(2)
In January 2012, a grand jury charged with
criminal copyright infringement and money
laundering many of the claimants in this action.
According to the indictment, the claimants used
public websites to facilitate the illegal reproduction
and distribution of copyrighted movies, software,
television programs, and music. e estimated harm
to copyright holders was in excess of $500,000,000,
while the reported income exceeded $175,000,000.
e district court issued restraining orders for the
claimants’ assets in New Zealand and Hong Kong.
e High Court in Hong Kong responded by
issuing a restraining order against approximately
$60 million in assets. e New Zealand court
arrested several of the claimants, released them on
bail, and then registered restraining orders on $15
million in assets.
Because the New Zealand restraining orders
could only remain registered for two years, and
extended for up to additional one year, the United
States led the instant civil forfeiture action against
forty-eight assets restrained pursuant to the criminal
indictment in the district court.
Most of the claimants in this case led their
claims together. ey also led a joint waiver of
notice. e government moved to strike all the
claimants’ claims pursuant to 28 U.S.C. § 2466,
the federal fugitive disentitlement statute. e
district court granted the motion to strike allowing
claimants to appear and present arguments on
the motion but not on the merits of the case. e
government moved for default judgment, which
was granted by the district court in March 2015.
e district court then issued forfeiture order for
the assets in New Zealand and Hong Kong.
Claimants appeal the judgment on several
grounds, including that the district court lacked
in rem jurisdiction over the defendant property
because it resides in foreign countries.
e United States Court of Appeals for the
Fourth Circuit arms district court’s decision.
e key issue here is whether the district court
has in rem jurisdiction pursuant to 28 U.S.C. §
1355(b)(2), if the property is located in a foreign
ere is a potential split on this question in
the circuit courts. While Second Circuit has held
that it merely makes venue proper in certain courts,
the other circuits, such as ird, Ninth, and D.C.
Circuit have held that it establishes jurisdiction in
those courts. e district court in this case adopted
the majority approach. e Court agreed.
“’Under the traditional paradigm, `the court
must have actual or constructive control over the
res when an in rem forfeiture suit is initiated.’
United States v. Approximately $1.67 Million, 513
F.3d 991, 996 (9th Cir. 2008) (quoting United
States v. James Daniel Good Real Prop., 510 U.S.
43, 58 (1993)). e question is whether §1355—
particularly the 1992 amendments which added
subsections (b) and (d), authorizing district courts
to issue process against property outside their

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