Friday, January 13, 2017

SCOTUS Cert Grant on Class Actions and Statutes of Limitations

Today the U.S. Supreme Court granted certiorari in California Public Employees' Retirement System v. ANZ Securities, Inc., which presents the question: “Does the filing of a putative class action serve, under the American Pipe rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members?”

(This question was the subject of an earlier Supreme Court case (IndyMac), but cert in that case was dismissed as improvidently granted because of a settlement.)

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 13, 2017 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Class-Waiver Arbitration Agreements & Federal Labor Law

Today the U.S. Supreme Court granted certiorari in three cases that raise the question of whether arbitration agreements that forbid class claims violate federal labor law. The cases, which were consolidated by the Court, are:

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at the SCOTUSblog case pages for Epic Systems, Ernst & Young, and Murphy Oil.

 

 

January 13, 2017 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

16 Cert Grants in Today’s SCOTUS Order List

Today the U.S. Supreme Court granted certiorari in 16 cases. Lots of federal courts and civil procedure issues in the mix—more details to come.

In the meantime, here’s the order list.

 

 

 

January 13, 2017 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

D.C. Circuit Denies Motion to Intervene in ACA Appeal

Yesterday the U.S. Court of Appeals for the D.C. Circuit denied an attempt by two consumers to intervene in U.S. House of Representatives v. Burwell (No. 16-5202). The case involves, among other things, whether the House of Representatives has Article III standing to sue regarding the Executive Branch’s administration of the Affordable Care Act.

Here is the text of yesterday’s order:

Upon consideration of the motion for leave to intervene, the responses thereto, and the reply, it is

ORDERED that the motion for leave to intervene be denied. Movant-intervenors have not demonstrated that they are entitled to intervene in this case. See Fed. R. Civ. P. 24; Building and Const. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (enumerating the requirements for intervention under Rule 24 and applying those factors to a motion to intervene in an appellate proceeding). This case shall continue to be held in abeyance, with motions to govern further proceedings due February 21, 2017. See Order (Dec. 5, 2016).

Download DC Circuit Order

Here is the initial motion to intervene:

Download DC Circuit Motion to Intervene

 

 

 

January 13, 2017 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Tuesday, January 10, 2017

Interesting Class Action Decision from the Ninth Circuit

Last week, the U.S. Court of Appeals for the Ninth Circuit decided Briseno v. ConAgra Foods Inc., which addresses what has come to be known in other federal courts as the “ascertainability” requirement. The entire opinion is worth a read, but here are some highlights.

At the outset, the court took issue with the term “ascertainability.” It explained in a footnote:

ConAgra called this a failure of “ascertainability.” We refrain from referring to “ascertainability” in this opinion because courts ascribe widely varied meanings to that term. For example, some courts use the word “ascertainability” to deny certification of classes that are not clearly or objectively defined. See, e.g., Brecher v. Republic of Argentina, 806 F.3d 22, 24–26 (2d Cir. 2015) (holding that a class defined as all owners of beneficial interests in a particular bond series, without reference to the time owned, was too indefinite); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (affirming denial of class certification because a class composed of state residents “active in the ‘peace movement’” was uncertain and overbroad). Others have used the term in referring to classes defined in terms of success on the merits. See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347, 360 n.9 (4th Cir. 2014) (remanding and instructing the district court to consider, “as part of its class-definition analysis,” inter alia , whether the proposed classes could be defined without creating a fail-safe class).

Stated more precisely, ConAgra’s argument was that “there would be no administratively feasible way to identify members of the proposed classes because consumers would not be able to reliably identify themselves as class members.” The court, however, rejected the argument that class certification requires—separate and apart from the enumerated requirements in Rule 23—that there be “an administratively feasible way to determine who is in the class.” It wrote: “We have not previously interpreted Rule 23 to require such a demonstration, and, for the reasons that follow, we do not do so now.”

The court also said the following about case law from other circuits:

We recognize that the Third Circuit does require putative class representatives to demonstrate “administrative feasibility” as a prerequisite to class certification. See Byrd v. Aaron’s Inc., 784 F.3d 154, 162–63 (3d Cir. 2015); Carrera v. Bayer Corp., 727 F.3d 300, 306–08 (3d Cir. 2013). The Third Circuit justifies its administrative feasibility requirement not through the text of Rule 23 but rather as a necessary tool to ensure that the “class will actually function as a class.” Byrd, 784 F.3d at 162. The Third Circuit suggests that its administrative feasibility prerequisite achieves this goal by (1) mitigating administrative burdens; (2) safeguarding the interests of absent and bona fide class members; and (3) protecting the due process rights of defendants. See Carrera, 727 F.3d at 307, 310. The Seventh Circuit soundly rejected those justifications in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), and the Sixth Circuit followed suit, see Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (citing Mullins in declining to follow Carrera). We likewise conclude that Rule 23’s enumerated criteria already address the interests that motivated the Third Circuit and, therefore, that an independent administrative feasibility requirement is unnecessary.

Download Briseno (9th Cir)

 

 

January 10, 2017 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, December 29, 2016

Interesting Seventh Circuit Decision on Summary Judgment

It’s a “nonprecedential disposition,” but the Seventh Circuit’s decision last week in Couvillion v. Speedway LLC features an interesting exchange about summary judgment. The majority (Chief Judge Wood & Judge Easterbrook) affirms the lower court’s grant of summary judgment against a plaintiff who sued Speedway after she was injured while adding air to her tires at a Speedway service station. In the final paragraph, the court writes:

Couvillion also contends that Indiana’s courts favor jury trials in tort suits. See, e.g., Countrymark Cooperative, Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. App. 2008) (“negligence cases are especially fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.”) * * * . Maybe Indiana’s judiciary would have submitted Couvillion’s claim to a jury. But federal rules govern the allocation of tasks between judge and jury in federal court. See, e.g., Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994). In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment. We know from Walker v. Armco Steel Corp., 446 U.S. 740 (1980), and other decisions, that federal procedure governs all federal cases, even if this implies an outcome different from the one likely in state court.

There are a couple of interesting points here. One is about the Erie doctrine. My personal view is that the interplay between FRCP 56 and state law is not quite so simple, and that a proper understanding might require a federal court adjudicating a state-law claim to follow state law on certain aspects of summary-judgment practice. [See What Is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)].

Another point—which Judge Sykes emphasizes in her dissent—has to do with the majority’s assertion that “In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment.” Judge Sykes writes in response:

Under Rule 56 (and in state practice), a judge may resolve the case by summary judgment only if there is no material factual dispute “and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a) (emphasis added); see also Ind. R. Trial P. 56(C). The historical facts are undisputed here, but it doesn’t follow that a judge decides liability. Couvillion is entitled to have a jury determine Speedway’s liability unless on this record no reasonable jury could find a breach of duty under §§ 343 and 343A.

There would seem to be federalism dimensions with respect to this issue as well—is it by state or federal law that we decide whether the movant is “entitled to judgment as a matter of law”?

Download Couvillion v Speedway (7th Cir)

(H/T Raffi Melkonian)

 

 

 

December 29, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (1)

Wednesday, December 14, 2016

SCOTUS Cert Grant on Venue in Patent Cases: TC Heartland v. Kraft Foods

Today the U.S. Supreme Court granted certiorari in TC Heartland LLC v. Kraft Food Brands Group LLC. Here is the question presented set forth in the cert petition (including the usual wind-up):

The patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions "may be brought in the judicial district where the defendant resides .... " The statute governing "[v]enue generally," 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts.

In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), this Court held that § 1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase "where the defendant resides" in § 1400(b) "mean[s] the state of incorporation only." Id. at 226. The Court's opinion concluded: "We hold that 28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391 (c)." Id. at 229 .

Federal Circuit precedent holds to the contrary. Although Congress has not amended § 1400(b) since Fourco, the Federal Circuit has justified its departure from Fourco’s interpretation of§ 1400(b) based on amendments to § 1391(c). As stated in the decision below, Federal Circuit precedent holds that "the definition of corporate residence in the general venue statute, § 1391(c), applie[s] to the patent venue statute, 28 U.S.C. § 1400" (App. 4a) and that "Fourco was not and is not the prevailing law" (App. Sa) on where venue is proper in patent infringement actions under § 1400(b).

The question in this case is thus precisely the same as the issue decided in Fourco:

Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

December 14, 2016 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, December 12, 2016

SCOTUS GVRs Sixth Circuit case for further consideration in light of Tyson Foods

Today’s Supreme Court order list includes an order in FTS USA, LLC v. Monroe, granting certiorari, vacating, and remanding the case to the Sixth Circuit for further reconsideration in light of last Term’s decision in Tyson Foods v. Bouaphakeo. The FTS cert petition challenged the district court’s handling of a Fair Labor Standards Act (FLSA) collective action as violating the FLSA, the Due Process Clause, and the Seventh Amendment.

 

 

 

December 12, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, December 2, 2016

SCOTUS Cert Grant on Service by Mail Under the Hague Convention: Water Splash v. Menon

Today the U.S. Supreme Court granted certiorari in Water Splash, Inc. v. Menon. Here is the question presented:

In 1965, the member states of the Hague Conference on Private International Law, including the United States, adopted a treaty known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). The Hague Service Convention enables service of process from one member state to another without the use of consular or diplomatic channels. This case presents the following federal question on which state and federal courts have been divided for over 25 years:

Does the Hague Service Convention authorize service of process by mail?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

December 2, 2016 in International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, November 30, 2016

SCOTUS Decision on Issue Preclusion

Yesterday the U.S. Supreme Court issued a unanimous decision in Bravo-Fernandez v. United States. It’s the Court’s first merits decision of the new Term, and it deals with the issue-preclusion component of the Double Jeopardy Clause. Here are excerpts from the opening passages of Justice Ginsburg’s opinion (which also provide a nice summary of the Court’s case law in this area):

Continue reading

November 30, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, November 18, 2016

Interesting SCOTUS Dismissal: Don’t Change Issues After Cert Grant

Yesterday the U.S. Supreme Court issued a summary disposition in two antitrust cases—Visa v. Osborn and Visa v. Stoumbos—for which it had earlier granted certiorari. Here’s the text of yesterday’s ruling:

These cases were granted to resolve “[w]hether allegations that members of a business association agreed to adhere to the association’s rules and possess governance rights in the association, without more, are sufficient to plead the element of conspiracy in violation of Section 1 of the Sherman Act . . . .” Pet. for Cert. in No. 15-961, p. i, and No. 15-962, p. i. After “[h]aving persuaded us to grant certiorari” on this issue, however, petitioners “chose to rely on a different argument” in their merits briefing. City and County of San Francisco v. Sheehan, 575 U. S. __, __ (2015) (slip op., at 7). The Court, therefore, orders that the writs in these cases be dismissed as improvidently granted.

 

 

 

 

 

 

November 18, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, November 8, 2016

Today’s SCOTUS Oral Argument in Bank of America v. Miami

Today the Supreme Court hears oral argument in Bank of America v. Miami, which involves standing to sue under the Fair Housing Act. Here are the questions presented:

  1. By limiting suit to "aggrieved person[s]," did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact?
  1. The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies?

You can find links to all of the briefing at SCOTUSblog.

[Update: Here is the oral argument transcript.]

 

 

 

November 8, 2016 in Recent Decisions, Standing, Supreme Court Cases | Permalink | Comments (0)

Monday, November 7, 2016

SCOTUS Cert Grant on Preemption: Coventry Health Care v. Nevils

On Friday, the Supreme Court granted certiorari in Coventry Health Care of Missouri, Inc. v. Nevils, which presents the following questions:

  1. Whether FEHBA preempts state laws that prevent carriers from seeking subrogation or reimbursement pursuant to their FEHBA contracts.
  2. Whether FEHBA’s express-preemption provision, 5 U.S.C. § 8902(m)(1), violates the Supremacy Clause.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

November 7, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, October 31, 2016

SCOTUS Cert Grant on Arbitration: Kindred Nursing Centers v. Clark

On Friday, the Supreme Court granted certiorari in Kindred Nursing Centers Limited Partnership v. Clark, which presents the question:

"Whether the FAA preempts a state-law contract rule that singles out arbitration by requiring a power of attorney to expressly refer to arbitration agreements before the attorney-in-fact can bind her principal to an arbitration agreement."

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

October 31, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, October 21, 2016

Federal Circuit Reverses Award of Attorney's Fees to Justin Timberlake & Britney Spears

Yesterday the U.S. Court of Appeals for the Federal Circuit issued its decision in Large Audience Display Systems v. Tennman Productions, LLC. It reversed the district court’s award of attorney’s fees to (among others) Justin Timberlake and Britney Spears. Here’s the opinion’s first paragraph:

Large Audience Display Systems, LLC (“LADS”) appeals from the district court’s order granting a motion for attorney’s fees under 35 U.S.C. § 285 filed by Appellees Justin Timberlake, Tennman Productions, LLC, Britney Spears, and Spears King Pole, Inc. (collectively, “Appellees”). We find that certain of the factors relied upon by the district court to find this case to be exceptional were entitled to no weight under § 285. We therefore vacate the district court’s award of attorney’s fees and costs, and remand for reconsideration of Appellees’ motion.

Download Large Audience Display Systems (Fed Cir)

Will the ruling affect recent rumors of a possible Spears-Timberlake collaboration? Stay tuned.

 

 

 

October 21, 2016 in Music, Recent Decisions | Permalink | Comments (0)

Thursday, October 13, 2016

Third Circuit Decision on Standing, Pleading, and NSA Surveillance

Last week, the U.S. Court of Appeals for the Third Circuit issued its decision in Schuchardt v. President of the United States (3d Cir. No. 15-3491). The plaintiff filed a lawsuit challenging NSA surveillance activities, but the district court dismissed for lack of standing. The Third Circuit reversed, with an opinion that begins:

This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.

The court goes on to discuss the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA, as well as the general pleading standard set forth in Twombly and Iqbal.

Download Schuchardt (3d Cir)

It’s worth noting that a case similar to Schuchardt is currently pending in the Fourth Circuit. Wikimedia Foundation  v. NSA (4th Cir. No. 15-2560) is scheduled for oral argument in December. If readers are interested, below is a link to an amicus brief in the Wikimedia case that I filed on behalf of various civil procedure and federal courts professors:

Download Wikimedia v NSA (4th Cir) Law Professor Amicus Brief

 

 

 

 

 

 

October 13, 2016 in Adam Steinman, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction, Twombly/Iqbal | Permalink | Comments (0)

Tuesday, October 11, 2016

SCOTUS grants cert to review 9/11 lawsuits; questions presented involve Bivens, qualified immunity & pleading standards

Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.

The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history). 

[Update: During the cert-stage briefing and in the initial order granting certiorari, these three cases were captioned with Ibrahim Turkmen as the lead respondent (Ziglar v. TurkmenAshcroft v. Turkmen, and Hasty v. Turkmen). The docket and merits briefs now list Ahmer Iqbal Abbasi as the lead respondent.]  

You can find all the cert-stage briefing—and follow the merits briefs as they come in—by checking out the SCOTUSblog casefiles (Ziglar; Ashcroft; Hasty). Here are the questions presented in full...

Continue reading

October 11, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Monday, October 3, 2016

Federal Judge Authorizes Service of Process via Twitter Under FRCP 4(f)(3)

Last week, U.S. Magistrate Judge Laurel Beeler of the Northern District of California invoked Rule 4(f)(3) to order that a plaintiff be allowed to use Twitter to serve process on a Kuwaiti national. The case is St. Francis Assisi v. Kuwait Financial House, and the opinion begins:

The plaintiff, St. Francis Assisi (a non-profit corporation), sued the defendants, Kuwait Finance House, Kuveyt-Turk Participation Bank Inc., and Hajjaj al-Ajmi (an individual) for damages and equitable relief arising from the defendants’ financing of the terrorist organization known as the Islamic State of Iraq and Syria (ISIS), which resulted in the targeted murder of Assyrian Christians in Iraq and Syria. (See Compl., ECF No. 1.)

St. Francis has not been successful in serving process on al-Ajmi. (See ECF No. 10.) Al-Ajmi is a Kuwaiti national and efforts to locate him have been unsuccessful. (Id.) St. Francis now asks to serve al-Ajmi by alternative means under Federal Rule of Civil Procedure 4(f)(3) via the social-media platform, Twitter. (Id.) The court grants St. Francis’s request because service via Twitter is reasonably calculated to give notice and is not prohibited by international agreement.

Download St Francis Assisi v Kuwait Financial House (ND Cal)

Eric Goldman has coverage here.

 

 

 

October 3, 2016 in Federal Rules of Civil Procedure, Recent Decisions, Web/Tech | Permalink | Comments (0)

Thursday, September 29, 2016

SCOTUS Cert Grants – the Long Conference

Today the Supreme Court issued the order list following its end-of-the-summer “Long Conference.” It granted certiorari in nine cases. Here are some that may be of particular interest...

McLane Co. v. EEOC (No. 15-1248): Whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do, consistent with this Court’s precedents concerning the choice of standards of review.

Goodyear Tire & Rubber Co. v. Haeger (No. 15-1406) (consolidated with Musnuff v. Haeger (No. 15-1491)): Is a federal court required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process?

Lewis v. Clarke (No. 15-1500): Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.

 

 

 

September 29, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, September 27, 2016

Ninth Circuit Decision on FRCP 44.1, Foreign Law & the Uniform Recognition Act

Yesterday the U.S. Court of Appeals for the Ninth Circuit issued its decision in de Fontbrune v. Wofsy. The court unanimously held that the district court was correct to consider expert declarations on the content of French law in connection with the defendants’ Rule 12(b)(6) motion to dismiss, although it reversed on the issue of whether the French award at issue in the case was cognizable under California’s Uniform Recognition Act.

Here are the opinion’s opening paragraphs:

Justice Holmes once observed that foreign legal systems can appear to the uninitiated “like a wall of stone,” impenetrable and unyielding. Diaz v. Gonzales, 261 U.S. 102, 106 (1923) (Holmes, J.). For over a century, the federal courts attempted to scale this stone wall by treating questions of foreign law as questions of fact to be pleaded and proved. But over the years, this method proved unsatisfactory, obscuring rather than illuminating the content and nuance of foreign laws. Finally, in 1966, following a proliferation of international litigation, Federal Rule of Civil Procedure 44.1 was adopted to furnish federal courts with a uniform procedure for raising and determining an issue concerning foreign law. Fed. R. Civ. P. 44.1 advisory committee’s note. Now, according to the Rule, a “court’s determination [of foreign law] must be treated as a ruling on a question of law.” Fed. R. Civ. P. 44.1.

Despite the clear mandate of the federal rule, this appeal illustrates the difficulty that can arise in determining foreign law and the confusion surrounding the role of foreign law in domestic proceedings. The dispute stems from the transcontinental attempts of Yves Sicre de Fontbrune to protect his copyright in photographs of Pablo Picasso’s artworks after an American art editor, Alan Wofsy and Alan Wofsy and Associates (collectively, “Wofsy”), reproduced the photographic images. As part of his efforts, de Fontbrune received a judgment in French court of two million euros in “astreinte” against Wofsy for copyright violations. De Fontbrune sought to enforce this astreinte in federal court in California under the California Uniform Foreign-Court Monetary Judgment Recognition Act (“Uniform Recognition Act” or “the Act”), Cal. Civ. Proc. Code §§ 1713 et seq.

The Picasso photographs—intended to convey the quintessence of Picasso’s artworks—now require us to delve into the essence of astreinte, a French judicial device. The enforceability of the French award turns on whether, in this case, the astreinte functions as a fine or penalty—which the Uniform Recognition Act does not recognize—or as a grant of monetary recovery—which is statutorily cognizable. The answer to this question is not a simple matter of translation, but, as we explain, requires a broader look at French law to understand the nature of the astreinte remedy in this case, in conjunction with an analysis of California law regarding the enforcement of foreign judgments.

Download DeFontbrune v Wofsy (9th Cir)

 

 

 

September 27, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (1)