Tuesday, January 13, 2015

Collecting on a Big Foreign Judgment

Hyundai Securities Ltd. v. Lee, No. B257276 (D2d5, as modified Jan. 14, 2015)

Mr. Lee, a former officer of Hyundai, got tagged with a $24 million judgment, based in part on a Korean court's ordering him to indemnify the company for certain criminal fines it paid due to his conduct. The judgment carries post-judgment interest at the rate of 20 percent—the statutory rate for Korea. About $5 million in principal and $3 million in interest remain, and Hyundai is now trying to collect in California.

So Hyundai filed an action to have the judgment recognized under the Uniform Foreign Country Money Judgments Recognition Act, Code of Civil Procedure § 1713–24. In a prior appeal, the court held that, procedure-wise, a foreign country judgment can’t be domesticated by a simple petition; its validity needs to be recognized through trial or on summary judgment. So on remand, Hyundai did just that. The trial court found the judgment enforceable, including the accrued Korean interest, plus 20 percent interest going forward.

Lee raises three issues. First, he says that a California court should not have enforced the judgment under § 1715(b)(2), which excludes fines or other penalties from the scope of the Act. The gist of the provision is that the judiciary generally isn’t in the business of enforcing the public law, and in particular, the penal law, of other countries. So Lee says that since Hyundai's underlying liability that he is stuck with indemnifying was a criminal fine levied by the Korean government, a California court shouldn’t enforce that against him.

But the court here doesnt agree. Although the judgment might be requiring Lee to compensate Hyundai for damage it incurred by being fined, it was nonetheless a civil damage award in favor of a private party. Nothing in the case law or legislative of either the California Act, the promulgated Uniform Act, or in other states’ enactment of the Act says otherwise. Indeed, the weight of the authority suggests that the rule is meant to address situations where the sovererign itself is the judgment creditor.

Second, Lee says that the accrued Korean interest should not have been awarded. Generally, a party attempting to enforce a foreign judgment gets the same kind of post-judgment interest that a party enforcing a sister-state judgment would, § 1715, and for prior to the recognition of the judgment by a California court, that means the rate of interest under the law of that state, § 1710.25(a)(2). But Lee says 20 percent is “repugnant to the public policy of this state or United States,” and thus unenforceable under §1716(c)(3). In particular, Lee points to the 10 percent cap on post-judgment interest in Article 15 § 1 of the state constitution. But the fact that the Korean statutory rate is twice the state cap is not so offensive to public policy to make it repugnant under the standard of the Act. Repugnancy is a high bar, reserved for practices such as those that are injurious to public health, offensive to individual rights, or that undermine the administration of law. Double interest just isnt enough.

Finally, Lee argues that the court should not have awarded prospective 20 percent interest on the now-domesticated judgment. This one bears fruit. As noted, § 1715 adopts the sister state standard for foreign judgments. Under § 1710.25, once a sister state is domesticated, the court applies Californias 10 percent interest rate to the domesticated judgment going forward. The idea is that the new interest wasn’t part of the original Korean judgment, but a new merged California judgment that should carry California interest.

Which brings up a point. If you have a foreign or sister state judgment that carries interest over 10 percent, it probably doesn't make sense to domesticate it until you are on the verge of being able to collect. Otherwise, you are giving money away.

Reversed in part and remanded.


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