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)