Case of the Day: Depp v. Heard

Johnny Depp and Amber Heard
Credit: GabboT (CC BY-SA)

The case of the day is Depp v. Heard (Va. Cir. Ct. 2021). Yes, that Depp and that Heard. After the Sun published a column calling Depp a “wife-beater,” Depp sued the paper for libel in the English court. He later sued Heard in Virginia for libel in light of a Washington Post column in which he claimed she had falsely characterized him as a domestic abuser. While the Virginia case was pending, the English case was decided against Depp; the judge held that the claim failed because the statements in the Sun were substantially true. In Virginia, Heard then amended her pleadings to assert that the English judgment barred the Virginia claim on various grounds.

The decision is analytically funky. It begins by asking whether the English judgment could have collateral estoppel or res judicata effect, and it concluded that it didn’t. I am not going to review the grounds for that part of the decision. The court then went on to ask whether the English judgment should be recognized as a matter of comity or under the UFCMJRA. It would be sounder to ask first whether the judgment is entitled to recognition, because only judgments entitled to recognition can have preclusive effect in the first place. And if a judgment doesn’t have preclusive effect, what’s the point of talking about whether it is entitled to recognition?

It’s also odd that the court would first discuss comity and only then turn to the UFCMJRA. Comity remains as a backstop for recognition of foreign judgments that do not fall within the scope of the statute, but the UFCMJRA applies to a foreign judgment that “grants or denies recovery of a sum of money.” So the court should first ask whether the judgment is entitled to recognition under the statute and then, only if the answer is no, ask about comity.

One other point to note is the lack of any mention of the SPEECH Act, 28 U.S.C. § 4101 et seq., the federal statute that bars recognition of foreign defamation judgments that don’t meet First Amendment muster. Did the court do something funky here, too? No, I don’t think so. The statute forbids recognition of a “judgment for defamation” unless the foreign court gave speech as much protection as the First Amendment would give it. I am not aware of any similar cases, but it seems to me that a judgment for the defendant in a defamation case is probably not a “judgment for defamation,” and it wouldn’t make sense to apply the statute in cases where the defendant wins, given the purpose of the statute is to protect libel defendants liable for damages abroad from recognition and enforcement of the judgments in the United States.

6 responses to “Case of the Day: Depp v. Heard”

  1. Gilles Cuniberti

    “Given the differences between Virginia and UK law regarding trials by jury and libel
    laws, the Court is hesitant to apply preclusive effect to the UK finding, especially considering
    Defendant was not a party in the UK suit and was not subject to the same discovery requirements
    in that suit.”

    That’s review on the merits, pure and simple.

    1. Ted Folkman

      Hmm, I’m not sure about that, Gilles. I think the court’s point, put into different language, is that even if the English judgment were recognized, it should not be given preclusive effect because of the lack of mutuality. I don’t think that’s a comment on the merits of the English judgment. The requirement of mutuality was traditionally a requirement for preclusion, and it appears from the decision that Virginia law continues to adhere to that rule.

  2. Gilles Cuniberti

    But this is discussed not in the context of the mutuality requirement, but in the context of comity. So it seems that, for the court, this is a requirement for granting comity…

    1. Ted Folkman

      Fair enough. I would not draw conclusions about the state of US law or the state of Virginia law from this first-instance decision. As I suggest in the post, the analysis is not strong, and I don’t think the court was really distinguishing clearly between (1) granting recognition but refusing to give preclusive effect for lack of mutuality or want of privity; and (2) denying recognition.

  3. kotodama

    I agree with the OP that the overall analysis was really sloppy here. Also, as Prof. Cuniberti highlighted, the use of the expression “preclusive effect” in a section on comity, not collateral estoppel/res judicata, just seems like a glaring mistake. That said, however wrong the other aspects of the opinion are, I don’t see how simply noting the differences in substantive and procedural law between the US and the UK amounts to “review on the merits.” I didn’t see any place where the court discussed the merits of the specific underlying UK judgment sought to be recognized in the US. That to me is what “review on the merits” would ordinarily mean.

    I think the bigger issue with the comity analysis is that it’s borderline (no comity pun!) incoherent. For one, the court just jumps into the substantive/procedural law comparison without ever explaining why that’s required. I suppose that could be based on the “public policy” factor, but if so, the court certainly never comes out and says that. And even if that’s truly part of the analysis, the court still flubs it. For example, it makes a big deal out of the fact that the UK and US substantive libel laws are different. Well, of course they are. But the court doesn’t explain why that by itself means no comity. The real question is, or at least should be, what is the nature of the difference and how is that difference relevant, if at all, to the comity decision? Here, the main substantive difference is that in the US, we have the 1A. But that just means the UK is a more plaintiff-friendly jurisdiction than the US. And if Depp couldn’t even get a verdict as a plaintiff in the UK, I don’t see how he’s prejudiced by recognizing the judgment in the US, which is less plaintiff-friendly. Or maybe the court was denying comity to protect a hypothetical defendant from recognition of a judgment in the UK where the plaintiff in fact won? Maybe, but I don’t know, since again the court didn’t say. I will grant the procedural differences are stronger, at least in a case like this where the plaintiff lost in the UK.

    In the first-instance VA court’s partial defense, is it possible it doesn’t get all that many cases where it has to address the impact of a foreign judgment? Hopefully this can all get sorted out (no UK pun!) on appeal.

    Also, I am just curious, what is Depp and/or Heard’s connection to VA exactly? I guess you could say in this case, VA is for estranged lovers!

    1. Ted Folkman

      Kotodama, your question about the Virginia connection is a good one–I haven’t looked into that at all. I agree with you that in a foreign defamation case where the defendant wins, there is no US public policy at play that turns on the difference between US defamation law and foreign defamation law. That’s why the SPEECH Act likely doesn’t apply here.

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