Ashenden Reply Brief of July 26, 2000
Ashenden on Appeal

Part A - Appeals Nos. 99-3195, 99-4064, 00-1066 and 00-1371
(Recognition of Foreign Judgment)

I. Introduction

Under the Uniform Foreign Money Judgments Recognition Act ("UFMJRA"), foreign judgments can be enforced in Illinois only if they were "rendered under . . . procedures compatible with the requirements of due process of law." 735 ILCS 5/12-621(a)(1). This provision frames the sole question on this appeal: whether the English judgments here sought to be enforced by appellee Lloyd's were obtained pursuant to procedures that met American standards of due process.

The Names' due process grievance is grounded in two summary disposition provisions of the Equitas Reinsurance Contract to which they were involuntarily subjected. These were the "pay now sue later" and the "conclusive evidence" provisions. Because of these two clauses, the Names were deprived of the meaningful hearing. The issues on which they did not receive such a meaningful hearing are two: 1) the basis for the amount of money Lloyd's asserted that they owed and that has now been reduced to judgment; and 2) whether they had been defrauded by Lloyd's and its agents through representations that initially caused them to invest in Lloyd's and then periodically to reinvest. These two issues are intimately linked in that the Names claim that the first (the amount due Lloyd's) derives directly from the second (Lloyd's fraud). In other words, the second would be a compulsory counterclaim against the first if the case were heard in a United States district court.

The omission of a meaningful pre-deprivation hearing is justified only when there are exigent circumstances and an adequate post-deprivation remedy for wrongful taking. And in a summary judgment, which is what this case is, the record must show that there is evidence of such exigent circumstances and adequate remedy to the degree that there is "no genuine issue as to any material fact" and that the moving party is "entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

In its oral discussion on rehearing, the district court mentioned but did not resolve the further issue of whether the Names had waived their due process rights. That issue had been raised by Lloyd's in the district court, and in an excess of caution appellants addressed it in their initial Brief, pp. 30-35. As Lloyd's advances no argument about the question in its Brief and does not mention it in its statement of issues this argument is waived by Lloyd's. Kasper v. St. Mary of Nazareth Hosp., 135 F. 3d 1170, 1174 (7th Cir. 1997).

The statute speaks of a "system" characterized by due process, and this could conceivably be interpreted to require an inquiry into the foreign system as a whole rather than the procedures used in obtaining the particular judgments in issue. Any wholesale inquiry would be entirely unworkable, of course, and interpreting the statute to require or even invite such an inquiry would thus be absurd. Understandably courts (including those cited by Lloyd's) have focused on the procedures used in obtaining the judgments in issue, see Ingersoll Milling Machine Co. v. Granger, 833 F.2d 780 (7th Cir. 1987), and, despite occasional paeans by Lloyd's to the virtues of the English system as a whole, see Appellee's Brief, pp. 28-29, it has introduced no evidence that might make some systemwide inquiry even thinkable. The proceedings here under challenge were, of course, part of the "system" as a whole, and indeed the only parts as to which there is evidence in the record.

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