USA Law and Practice Contributed by: Jason W. Myatt, Ankita Ritwik and Charline Yim, Gibson, Dunn & Crutcher LLP
with the debtor. (See Nike , Inc v Wu , 349 F. Supp. 3d 346 (S.D.N.Y. 2018).) • Wire Transfers – Within the context of post- judgment asset discovery, creditors can discover details regarding wire transfers conducted into, out of and through the United States, which includes the vast majority of wire transfers involving US dol - lars. The US also has a specific statute, Section 1782 of Title 28 of the United States Code, that allows any “interested person” currently in or even contemplating a foreign proceeding to seek US-style discovery from a person or entity located in the United States. In addition to litigation-based discovery, ownership interests in real property and certain personal property (especially vehicles such as airplanes, boats and auto - mobiles) are maintained on local registries that may be available either online or for public inspection. Each state also maintains a registry for Uniform Commercial Code filings, which are public notices that a creditor has or had a security interest in a debtor’s personal property and may be helpful in identifying additional assets of the judgment debtor. Domestic judgments in the US can be grouped by the nature of relief granted and the stage of litiga - tion at which they are issued. The Federal Rules of Civil Procedure broadly define “judgments” to include decrees that resolve a case and result in appealable court orders (Fed. R. Civ. P. 54 (a)). Successful credi - tors before US courts can obtain judgments granting legal (monetary transfers), equitable (specific perfor - mance, injunctions), or declaratory relief. • Monetary Judgments – A money judgment, as its name suggests, includes an award of money dam - ages, and may include pre- and post-judgment interest. Punitive damages may also be avail - able. Judgments granting monetary awards can be issued through summary judgment, default or trial. Money judgments are enforced through writs of execution or their local equivalents, although 2. Domestic Judgments 2.1 Types of Domestic Judgments
additional options are often available. (See Fed. R. Civ. P. 69 (a)(1).) • Specific Performance – Courts may compel a party to “convey land, to deliver a deed or other docu - ment, or to perform any other specific act” (Fed. R. Civ. P. 70). If the debtor fails to act, the court can order the action done by another party or “hold the disobedient party in contempt” (ibid). Judg - ments granting specific performance can be issued through summary judgment, default or trial. • Injunctive Relief – An order for injunctive relief directs a party to act or refrain from acting (Fed. R. Civ. P. 65). Orders granting injunctive relief can be issued as a preliminary injunction at the outset of the litigation process or as a permanent injunction at the conclusion of proceedings. • Declaratory Judgment – A declaratory judgment clarifies legal rights (Fed. R. Civ. P. 57). In the judg - ment enforcement context, declaratory judgments are a common vehicle for seeking to establish that an entity is an alter ego of a judgment debtor. Where appropriate, courts may issue a declaratory judgment determining the individual rights of the creditor or debtor through a hearing rather than a full trial (ibid). 2.2 Enforcement of Domestic Judgments Enforcing a domestic judgment in US federal court involves a mix of federal procedural rules and state law remedies because Rule 69 (a) of the Federal Rules of Civil Procedure directs that execution proceeds according to the practice of the state where the court is located, unless a federal statute provides other - wise (and few federal statutes “provide otherwise”). Although each state has its own mechanisms, which often have different names across jurisdictions, they generally fall into the following categories. • Writ of Execution – A writ of execution is a process issued by the court to enforce a judgment for the payment of money (Fed. R. Civ. P. 69 (a)). A writ of execution authorises the US Marshals Service, which is the federal agency charged with enforc - ing federal court judgments, to seize and sell the debtor’s non-exempt property to satisfy the judg - ment. In certain circumstances, a receiver or even the creditor may be named substitute custodian for the US Marshal with responsibility to hold and
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