Foreign law in the 9th Circuit

APPELLATE ZEALOTS

Anyone facing an issue of foreign law in federal court should read the 9th U.S. Circuit Court of Appeals' recent decision in De Fontbrune v. Wofsy, 2016 DJDAR 9820 (Sept. 26, 2016). Judge Margaret McKeown's characteristically thoughtful opinion provides a comprehensive overview of how issues of foreign law should be raised and decided, against a backdrop of Picasso, old photos and copyright infringement.

Pablo Picasso produced a staggering number of drawings and paintings over his career, and the photographer Christian Zervos worked in close collaboration with Picasso to chronicle those works. The copyrights to the nearly 16,000 Zervos photographs - the definitive catalogue of Picasso's work - eventually found their way to plaintiff Yves Sicre de Fontbrune.

Alan Wofsy, an American art editor, published several of the Zervos photographs without authorization. De Fontbrune sued for copyright infringement in French court, and after several rounds of litigation received not only a substantial award of money damages but also an "astreinte," basically an order that Wofsy would have to pay 10,000 francs "per proven infraction" for any future copyright violations. When Wofsy reprinted the photos again, de Fontbrune received an award of 2 million euros as a "liquidation" of the astreinte. De Fontbrune then sought to enforce that French judgment in California.

The primary dispute on appeal was whether the astreinte should be classified as a fine. While courts ordinarily recognize and enforce foreign damage awards, U.S. courts have long refused to enforce fines or penalties imposed by other sovereigns. The 9th Circuit dug deeply into French law to examine the nature of the astreinte, ultimately concluding that even though the dictionary defined astreinte as a "fine" and it involved a fixed amount per violation, it really functioned more like a liquidated damages award.

For most readers, the court's preliminary discussion of how to approach foreign law is more useful than the specifics of astreinte. Foreign law scares many lawyers, and for good reason. For over a century courts treated foreign law as a factual issue required to be pleaded and proved by the parties. Rule 44.1, passed in 1966, dramatically changed that approach by mandating that foreign legal issues must be treated as questions of law, and providing that courts may consider "any relevant material" whether or not submitted by a party or admissible under the rules of evidence. Fed. R. Civ. P. 44.1. Yet even though Rule 44.1 has been on the books for 50 years, its application is beset with "confusion and contradiction," "lingering uncertainty," and "understandable judicial discomfort." 2016 DJDAR at 9822-23.

No court of appeals had previously addressed whether foreign law issues outside the pleadings could be considered at the motion to dismiss stage, but the 9th Circuit answered a clear yes. Stressing that Rule 44.1 was intended to be a sea change empowering courts to do their own research and analysis of foreign law, the 9th Circuit explained that courts have broad authority to look at anything outside the pleadings at any stage. Even conflicting expert declarations regarding foreign law can be considered on a motion to dismiss.

The panel's opinion empowers courts with virtually unconstrained authority to research foreign legal issues on their own, using any sources at their disposal. The opinion likewise empowers litigants to give courts any materials that shed light on the foreign law issues, and frees litigants from needing to formally request judicial notice of those authorities.

The one rough spot in an otherwise compelling opinion is the occasional suggestion that district courts may be obligated "to adequately ascertain relevant foreign law, even [when] the parties' submissions are lacking." 2016 DJDAR at 9823. The opinion criticizes the "semantic sloppiness" of prior decisions that refer to a party's "burden" of proving foreign law, pointing out that under Rule 44.1 a party must just "give notice by pleading [or] other writings" of a foreign law issue, and this notice "is not tantamount to a burden of proof." 2016 DJDAR at 9823-24. The court is of course right that no party has a "burden of proof" on foreign law - proof pertains to factual matters, and foreign legal issues are not factual. But this discussion could be misunderstood since there is no acknowledgment of the normal rule that failure to develop a legal argument with citations to controlling legal authorities can lead to waiver of that argument. For issues of domestic law, a party that simply asserts "the judgment is a penalty that can't be enforced" without fleshing out the law supporting that assertion could be deemed to have waived that argument. The same should be true of claims under foreign law.

It would be exceedingly odd to allow a party to provide only bare legal notice and then shift the burden to the court to research and analyze the issue - it would not only encourage parties to recite a laundry list of every possible foreign legal issue that could help them, but would also place a sometimes impossible burden on district courts. French law is one thing. Much has been written about it in English, and at least some of those sources would be available in an average district courthouse. But what is a district court to do when faced with an obscure issue relating to the law of, say, Gabon or Suriname? The undersigned once spent a summer in Phnom Penh researching Cambodian law, and even with all the resources available in the country's capital couldn't be entirely sure which evidence code provisions were currently in effect.

The panel's decision is surely right in granting district courts broad authority to investigate issues of foreign law. The issue presented on appeal did not deal with the court's obligation to conduct that analysis, and the opinion's dicta should not be misread as requiring district courts to undertake that analysis without adequate development by the parties of the legal arguments. Indeed, while the opinion did not mention this, the Advisory Committee Notes to Rule 44.1 provide that while a court may research foreign law on its own, "the court is free to insist on a complete presentation by counsel." Foreign law is tricky enough without placing an impossible burden on district courts.