The case of the day is Gorsoan Ltd. v. Bullock (Fla. Cir. Ct. 2020). I came across the case on the website of friend of the blog George Benaur. I wrote about a related § 1782 proceeding in July 2020.
The question in the case was whether the Florida courts should recognize and enforce a Mareva injunction, i.e., an asset-freeze injunction, entered by a court in Cyprus. The injunction was interlocutory. The Florida court enforced the Cyprus injunction on the grounds that, in general, foreign decrees should be enforced unless contrary to public policy, without undertaking the traditional analysis courts use in deciding whether to enter a preliminary injunction.
I am not sure that the ruling is correct, although I do not say that it is wrong. The court cited § 102, cmt. g of the Restatement (Second) of Conflicts of Laws, which reads:
It can therefore be assumed that a decree rendered in a foreign nation which orders or enjoins the doing of an act will be enforced in this country provided that such enforcement is necessary to effectuate the decree and will not impose an undue burden upon the American court and provided further that in the view of the American court the decree is consistent with fundamental principles of justice and of good morals.
But the blackletter rule of Section 102 makes it clear that the section is talking about judgments:
A valid judgment that orders the doing of an act other than the payment of money, or that enjoins the doing of an act, may be enforced, or be the subject of remedies, in other states.
Does the Restatement mean to include preliminary injunctions? It’s not clear from the face of the relevant section, § 92 and comments. “Judgment,” in the Restatement, “is a general term which includes not only judgments at law but also the orders, injunctions or decrees of equity courts, and the judgments of probate courts, admiralty courts and other special courts.” But does that mean permanent injunctions or decrees that come at the end of the case, or interlocutory orders? If it includes interlocutory orders, are interlocutory orders that a court issues in a purely legal action, where the words “injunction” or “decree” would not apply, also entitled to recognition and enforcement? If a US court orders a foreign litigant to turn over particular documents in discovery, could I take that order to the relevant foreign court and ask to have it enforced on comity grounds?
As I say, I am not sure what the right answer is here. All of this is not to say, by the way, that a plaintiff should not be able to get an asset freeze injunction in the United States (at least in state courts, in light of Grupo Mexicano, which freezes federal equity jurisdiction in the amber of 1789). But the question is whether the plaintiff is simply obtaining recognition of a foreign decree, or whether the plaintiff needs to make the usual showing of irreparable harm, likely success on the merits, etc.
Tagged: Mareva
Given that a fair number of other countries regard a preliminary injunction as essentially a separate ancilliary proceeding rather than part of the same proceeding, I’m not sure defining “judgments” as limited to end-of-case orders was what the drafters of the Restatement would have meant.
I don’t have anything to say on the merits, although I agree it’s an interesting question. This case is only at the trial court, so if this order can be appealed and when that potentially happens, we may see further discussion of the issue.
One thing I found educational (apart from this blog’s analysis, of course), was the expression “red cow” used at the bottom of page 3. VC has a little explanation of that (link below). It seems like it’s mainly a Florida thing.
https://reason.com/volokh/2018/04/12/red-cow-cases-sometimes-called-spotted-c/
This reminds me of a line from a wonderful, funny book, The Yiddish Policemen’s Detective Union which I can’t quote exactly but which stuck with me. There is a hard-boiled detective living in Sitka, Alaska, which in the alternative history of the book is where the Lindberg administration (!) sent America’s Jews to live. He’s investigating a crime involving a cow—I can’t remember the details—and he says something like: “I have just one question … what color cow?” Later, surreally, the news shows Jews dancing on the Temple Mount after blowing up the Dome of the Rock, so of course the cow was red!
That is an excellent line! I’ve been meaning to check out that book forever, so I need to get on with it already.