De Fontbrune v. Wofsy, 838 F.3d 992 (9th Cir. 2016) [click for opinion]

This case arose when Plaintiff, Yves Sicre de Fontbrune, a French photographer, sued an American art editor, Alan Wofsy and Alan Wofsy and Associates (collectively, "Wofsy"), in order to protect his pièce de résistance: a copyright in photographs of Pablo Picasso's artwork. Having obtained a judgment in the French courts granting him the remedy of astreinte and an award of 2,000,000 euros, de Fontbrune sought to enforce his award in the California courts pursuant to the California Uniform Foreign-Court Monetary Judgment Recognition Act (the "Act").

Under the Act, a party may not enforce a foreign judgment if it arises from a judgment amounting to a penalty. Wofsy therefore filed a motion to dismiss the complaint, attaching the declaration of a French lawyer who attested to the penal nature of the remedy of astreinte. In response, de Fontbrune supplied the attestation of his own French lawyer, who, unsurprisingly, declared that the remedy of astreinte is remedial in nature. The district court agreed with Wofsy and dismissed de Fontbrune's complaint.

De Fontbrune appealed to the Ninth Circuit, arguing that the consideration of expert opinions outside the pleadings was improper at the motion to dismiss stage and that the district court thus erred by dismissing his complaint.

The Ninth Circuit rejected the argument that a district court cannot consider extrinsic expert opinions dealing with topics of foreign law at the motion to dismiss stage. The Ninth Circuit noted that, under the broad mandate of Federal Rule of Civil Procedure 44.1, foreign legal materials—including expert declarations on foreign law—can be considered in ruling on a motion to dismiss where foreign law provides the basis for the claim.

However, in a volte-face, the Ninth Circuit concluded that the district court had erred in concluding that the award of an astreinte in this case constituted a penalty for purposes of the Act.

Examining the Act, the Ninth Circuit concluded that the proscription against recognizing or enforcing penal laws focuses on whether the character of the foreign judgment is essentially punitive or compensatory. Accordingly, determining whether the foreign award is penal in nature involves more than just a simple translation. Instead, courts must examine the Java Oil factors: (1) whether the purpose of the award is to compensate an individual or to provide an example or punish an offense against the public; (2) whether the award is payable to an individual or to the state or one of its organs; (3) whether the judgment arose in the context of a civil action or through the enforcement of penal laws; and (4) whether the award was a mandatory fine, sanction, or multiplier.

In the context of the Java Oil factors, the Ninth Circuit concluded that it was apparent that the purpose of the astreinte awarded to de Fontbrune was not to punish "an offense against the public" or make an example of Wofsy, but to safeguard de Fontbrune's copyright. Moreover, the Ninth Circuit observed that, although astreinte sometimes takes the form of a penalty, in this case it was awarded separately and apart from the pecuniary damages awarded by both the Paris Court of Appeal and the enforcement judge.

Noting this distinction, the Court commented that its conclusion was buttressed by comparing "the nature of the astreinte awarded here with another case in which our court considered in dicta the character of an astreinte imposed under French criminal law and in a different context." In the criminal setting, the Java Oil factors weighed heavily in favor of concluding the remedy was penal in that case. Accordingly, the Ninth Circuit concluded that the astreinte awarded in this case was not a fine or a penalty, and the district court had erred by concluding otherwise.