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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.
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