Case of the Day: Vischer AG v. Apollo Enterprise Solutions

The case of the day is Vischer AG v. Apollo Enterprise Solutions, Inc. (Cal. Ct. App. 2019). Vischler, a Swiss firm, had obtained a judgment for $160,000 for breach of contract against Apollo in the Commercial Court in Zurich. Vischer sought recognition in California and asserted that the Swiss judgment entitled it to damages in the judgment amount, interest, attorney’s fees, and costs. The parties settled the case for $90,000. The settlement agreement stated that nothing in the settlement precluded either party from filing a motion for attorney’s fees. Visccher did bring a motion for fees, and Apollo opposed the motion and argued that it should receive an award of fees. The Superior Court denied both motions, and Vischer appealed. Apollo cross-appealed, too, arguing that the lower court’s decision was correct but that if either party should be entitled to fees as the prevailing party, it was Apollo, not Vischer.

The court, correctly I think, rejected the appeals. If any party was entitled to fees, it was only entitled to fees by virtue of the Swiss judgment; but the Swiss judgment had never been recognized, and therefore it had no effect in the US. Nor did the court accept the obviously incorrect argument that the settlement was “tantamount to recognition.” It’s not even clear what that could mean.

What should a party in Vischer’s position do in such a case if it wants to settle but also wants to claim a right to fees under the foreign judgment? The settlement agreement could have included an agreement for a consent judgment recognizing the Swiss judgment.

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