The Volokh Conspiracy
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Why Isn't Johnny Depp v. Amber Heard Foreclosed by Depp's Loss in an English Libel Case?
It's chiefly because Virginia doesn't recognize nonmutual collateral estoppel, of course!
Fairfax County Chief Judge Penney Azcarate dealt with this in an August 17, 2021 order; first, the facts:
In the underlying action for defamation, Plaintiff John C. Depp II … is suing Defendant Amber Laura Heard … for statements Defendant made in an op-ed published by The Washington Post in 2018. Plaintiff, believing that Defendant's statements falsely characterized him as a domestic abuser, filed his defamation claim on March 1, 2019.
Prior to the commencement of Plaintiff's suit in Fairfax County Circuit Court, Plaintiff brought suit in the United Kingdom … against News Group Newspapers, the publisher of The Sun newspaper, for claims of defamation regarding The Sun's publication of a 2018 column referring to Plaintiff as a "wife beater." On November 2, 2020, the Judge in the UK litigation ruled against Plaintiff, finding The Sun's statements were substantially true and thus a defense to defamation. On March 25, 2021, the UK Court of Appeal upheld the trial court's ruling against Plaintiff and denied his application for permission to appeal. Plaintiff's litigation in the UK against The Sun became final on April 6, 2021, and Defendant subsequently moved for leave to amend her plea in bar to dismiss Plaintiff's Complaint based on collateral estoppel, res judicata, comity, and the Uniform Foreign-Country Money Judgments Recognition Act.
Ultimately, Defendant argues the UK's finding that Plaintiff is a "wife beater" should be given preclusive effect in this Court given Plaintiff's previous opportunity to fully and fairly adjudicate such issue….
Judge Azcarate held generally that, under Virginia law, the decision against Depp in (1) his lawsuit against one defendant (The Sun) for its statements wasn't binding in (2) a case by Depp against another defendant (Heard) for her statements—even if the gist of the statements (that Depp had beaten Heard) was similar. The law in other states might lead to a different result, under a doctrine called "nonmutual collateral estoppel," under which it would be enough that the English case was resolved against Depp, even if it hadn't been resolved in favor of Heard. But Virginia has rejected that doctrine. Here are the details:
Collateral estoppel
"Collateral estoppel is the preclusive effect impacting a subsequent action based on a collateral and different cause of action. In the subsequent action, the parties to the first action and their privies are precluded from litigating any issue of fact actually litigated and essential to a valid and final personal judgment in the first action." Accordingly, the following requirements must be met for the doctrine of collateral estoppel to apply [under Virginia law]:
(1) the parties to the two proceedings must be the same; (2) the issue of fact sought to be litigated must have been actually litigated in the prior proceeding; (3) the issue of fact must have been essential to the prior judgment; and (4) the prior proceeding must have resulted in a valid, final judgment against the party against whom the doctrine is sought to be applied.
Ordinarily, for estoppel to be effective there must be privity or mutuality amongst the parties. Accordingly, "a litigant is generally prevented from invoking the preclusive force of a judgment unless he would have been bound had the prior litigation of the issue reached the opposite result." [The problem here was that Heard wasn't a party to the English case—The Sun was—and the court held that they weren't sufficiently "in privity" to be treated as essentially the same party: -EV] [F]or privity to exist, Defendant's interest in the case must be so identical with The Sun's interest such that The Sun's representation of its interest is also a representation of Defendant's legal right. The Sun's interests were based on whether the statements the newspaper published were false. Defendant's interests relate to whether the statements she published were false. Although the claims are similar in the sense they both relate to claims of abuse by Plaintiff, the statements being defended in the UK case are inherently different than the statements published by Defendant. Therefore, given Virginia's narrow construction of privity, Defendant and The Sun are not in privity.
Defendant argues, "[t]he U.S. Supreme Court and the majority of jurisdictions in the United States allow defensive use of nonmutual estoppel." However, the Virginia Supreme Court "made a considered, unanimous decision to resist the so-called 'modern trend' and not to abrogate the mutuality requirement." Therefore. Virginia upholds the mutuality requirement, thus "limit[ing] the influence of [an] initial adjudication by requiring that to be effective the estoppel of the judgment must be mutual." …
Res judicata
"[R]es judicata" [as relevant here] … works by barring the re-litigation of a same cause of action, "or any part thereof which could have been litigated between the same parties and their privies." … The current governing law of res judicata and claim preclusion in the Commonwealth is Rule 1:6 …:
A party whose claim for relief arising from identified conduct, a transaction, or an occurrence, is decided on the merits by a final judgment, is forever barred from prosecuting any second or subsequent civil action against the same opposing party or parties on any claim or cause of action that arises from that same conduct, transaction or occurrence, whether or not the legal theory or rights asserted in the second or subsequent action were raised in the prior lawsuit, and regardless of the legal elements or the evidence upon which any claims in the prior proceeding depended, or the particular remedies sought. A claim for relief pursuant to this rule includes those set forth in a complaint, counterclaim, cross-claim or third-party pleading.
Because res judicata requires the parties be the same or in privity, the privity analysis discussed for collateral estoppel is also applicable, and fatal to Defendant's claim of res judicata.
Res judicata also requires that the claim in the first litigation and the second litigation arise from the same transaction or occurrence. The elements of a defamation claim include: "(1) publication of (2) an actionable statement with (3) the requisite intent." … [But] Plaintiff's defamation claim in the UK was based on completely different statements than the present case….
Comity
The Virginia Supreme Court has recognized the doctrine of comity. Comity is defined as
the recognition and effect which a forum jurisdiction gives within its territory to the legislative, executive, and judicial acts of a foreign jurisdiction, giving due regard to a number of factors, including: duty; mutual interests in reciprocity; courtesy; convenience; the public policy and preservation of valued morals in the forum; the rights of the forum's citizens and those under the protection of its laws; and the factual circumstances surrounding each claim for its recognition.
When determining whether to afford comity to a foreign judgment, trial courts must consider the following four factors:
(1) Did the foreign court have personal and subject matter jurisdiction?
(2) Are the procedural and substantive law applied by the foreign court reasonably comparable to that of Virginia?
(3) Was the foreign court's order falsely or fraudulently obtained?
(4) Is enforcement of the foreign court's order contrary to the public policy of Virginia?
Put another way, Virginia courts "should grant comity to any order of a foreign court of competent jurisdiction, entered in accordance with the procedural and substantive law prevailing in its judicatory domain, when that law, in terms of moral standards, societal values, personal rights, and public policy, is reasonably comparable to that of Virginia." However, "[c]omity is not a matter of obligation. It is a matter of favor or courtesy." …
[T]he libel laws of Virginia are starkly different than those of England…. Not only are the substantive laws of the UK different than Virginia, but so too are the procedural laws. Compare Va. Const. art. 1, § 11 (noting that in suits between persons, "trial by jury is preferable to any other, and ought to be held sacred"), with Senior Courts Act 1981, c. 54 § 69 (finding that a party in a civil trial for fraud, malicious prosecution, or false imprisonment may request a jury trial), and Def.'s Reply Br. Att. 3 ¶ 30(v) (noting Parliament allowed civil jury trials for libel actions in the past, but "now it is usual for defamation actions to be tried by judge alone"). In Virginia, plaintiffs are entitled to a trial by jury if so demanded. However, such right is not available in the UK. Instead, in cases of libel, judgments are based on the reasoned decision of one judge, as opposed to "a bald verdict of a jury." Of course, this Court means no disrespect to the procedure adopted in the UK….
Given the differences between Virginia and UK law regarding trials by jury and libel laws, the Court is hesitant to apply preclusive effect to the UK finding, especially considering Defendant was not a party in the UK suit and was not subject to the same discovery requirements in that suit….
Defendant draws attention to Plaintiff's "more favorable" burden of proof in the UK. Plaintiff did indeed have a more favorable burden of proof in the UK litigation—but that is not the only factor to be considered. As previously mentioned, the procedural and substantive laws regarding libel claims in the UK are vastly different than the laws in Virginia. Moreover, comity is not a matter of obligation, but rather a matter of courtesy. To enforce the UK defamation judgment in this case would go against public policy. Therefore, comity is inappropriate in this instance and does not serve to bar Plaintiff from arguing his case before a jury in the Commonwealth….
Uniform Foreign-Country Money Judgments Recognition Act
The Uniform Foreign-Country Money Judgments Recognition Act … provides that the Commonwealth shall recognize certain foreign judgments of other countries…. Defendant is correct in her assertion that this Court should enforce the UK Court's judgment precluding Plaintiff from recovering against The Sun for libel. But Plaintiff has not brought suit against The Sun in this case. Instead, Plaintiff brought forth a different suit with a different defendant based on different statements. Further, legal recognition of a judgment and preclusive recognition of a fact are not synonymous, and Defendant has cited no Virginia case applying the UFCMJRA when the parties are not mutual. Consequently, the UFCMJRA is inapplicable here and does not mandate the dismissal of Plaintiff's case.
