Abstract
Notwithstanding their common origins, English and US law on provisional measures are different today and they may be conceived as two developed yet distinct contemporary regulatory models. Consequently, it is worthwhile to juxtapose the two not only for this reason but also because of the discourse that has been ongoing in the US ever since Justice Scalia formulating the majority opinion rejected the introduction of the American version of English Mareva Injunction into the US legal system in the famous Grupo Mexicano case in 1999.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Grupo Mexicano de DeSarollo, S.A. v. Alliance Bond Fund, Inc. 527 U.S. 308 (1999).
- 2.
- 3.
Id. The quite expressive phrase used in the case is: “the bygone age of slow-moving capital and comparatively immobile wealth.”
- 4.
See, e.g., DiSarro (2011).
- 5.
Hoyle (2006), at 212.
- 6.
See, e.g., Barrack et al. (June, 2011). (Commenting on the actions of Irvin Picard, the trustee for the liquidation of Barnard L. Madoff Investment Securities LLC, who asked for several TROs and preliminary injunctions, including prohibiting the defendants “transferring or otherwise using any known assets.”
- 7.
As Grant Gilmore, the doyen of US commercial law put it, “[t]he Revolutionary trauma had instilled in many, perhaps in most, Americans, a hatred of England and all its ways […]. [The consequent] Anglophobia led [in some States even] to statutes which prohibited the use of English legal materials in court proceedings.” The New Jersey statute (enacted in 1799 and repealed in 1819), for example, forbade use of “any [English] compilation, commentary, digest, lecture, treatise, or other explanation or exposition of the common law […].” Gilmore (1977), at 22. In Gilmore’s opinion, this detachment from English law lasting for about two decades was sufficient for development of indigenous American law that was sufficient to start development of distinct law though again increasingly taking a look at developments in England. Id. at 23.
- 8.
The readers not adversed in US nomenclature should bear in mind that the term ‘common law’ in US legal terminology has three distinct meanings and in figuring out which meaning is being used the context in which they are used is crucial. First, it may be a reference to the Anglo-Saxon system as opposed to civil laws or Islamic law. Secondly, it may denote case law (precedents). Thirdly, in a historical context it is a reference to that branch of law that is not ‘equity.’ This third meaning, however, is substituted simply with ‘law,’ as visible among others from the above quotations. In Grupo Mexicano the phrase ‘law and equity’ is used as well. We follow this pattern in this section devoted to US law. See, e.g. Fletcher and Sheppard (2005), Chapter One.
- 9.
The Rules became effective on 16th of September 1938. For a succinct review of the road that led to the passage of the Rules see, e.g., Wright and Kane (2011), at 764.
- 10.
See Hazard (1985), title of section §1.5, at 14.
- 11.
Wright and Kane (2011), at 763.
- 12.
Besides the ‘law & equity’ line of argument, the other points supporting the decision of the majority of the Supreme Court included a number of other points. Two might properly illustrate them. On the one hand, it was brought up that the introduction of the local equivalent of Mareva would “radically alter the balance between debtor’s and creditor’s rights which has been developed over centuries through many laws—icnluding those relating to bankruptcy, fraudulent conveyances, and preferences.” On the other hand, the Court thought as well that the new device would generate a ‘race to the courthouse’ because “any rational creditor would want to protect his investment […] in cases involving insolvenyt or near-insolvent debtors, wjhich might prove financially fatal to the struggling debtor […].” Quoted from the Grupo Mexicano judgement.
- 13.
Id.
- 14.
It ought to be noted that in the Grupo Mexicano case protection of the rights of unsecured creditors was only at stake and the Court did not rule on possible protection of rights of secured creditors and other lien-holders by the Mareva-like new powerful preliminary injunction claimed in the case. As secured creditors have rights in the collateral, preliminary injunctions are available to them and the restrictions of Grupo Mexicano do not apply to them. Preliminary injunctions therefore may be exploited to prevent the debtor to wrongfully hide or otherwise dispose of the assets used as collateral by secured creditors. See, e.g., the case III Finance v. Aegis Consumer Funding Group, Inc., 1999 WL 461868 (S.D.N.Y. 1999), in which the court first issued a TRO ex parte and after a hearing also a preliminary injunction by reasoning that “[t]he Grupo case is inapplicable here because III Finance claims a security interest in the assets subject to the preliminary injunction.” Or, as the Supreme Court formulated in the case “the substantive rule that a general creditor (one without a judgment) had no cognizable interest, either at law or in equity, in the property of his debtor, and therefore could not interfere with the debtor's use of that property.” Grupo Mexicano at 319–320.
The holding of Grupo Mexicano therefore rests on the following four bases: (1) [district] courts lack the power to issue such preliminary injunctions, (2) that would prohibit defendant transferring specific assets, if (3) in such assets the claimant has no lien or equitable interest, (4) prior to entry of a money judgment.
- 15.
Wasserman (April 1992), at 306–7. (The author, on the one hand, criticizes the law by pointing to the limitations of American preliminary attachments and the encouraging experiences with the English Mareva Injunction and, on the other hand, it vouches for more frequent issuance of preliminary injunctions.
- 16.
- 17.
A continuing body “charged with the responsibility of examining the rules in action and recommending change[s]” has existed since the reconstitution of the Advisory Committee (that drafted the Rules initially) in 1942. This body existed until 1956 when the Congress amended the Act to create the Judicial Conference with the task of advising the Supreme Court on necessary changes. Wright and Kane (2011), at 765.
- 18.
Id. at 765.
- 19.
One of the factors that is looked upon as a ‘threat to the integrity of the Civil Rules’ and yet is of relevance to the law on preliminary measures is the proliferation of so-called ‘local rules.’ As initially it was presumed that “these would be few in number and confined to purely housekeeping matters,” Rule 83 was added authorizing district courts to make such local rules. Contrary to expectations, however, they became extensive and covering “a great variety of important matters.” Moreover, they were a kind of trap to lawyers from other districts. Wright and Kane (2011), at 777. As a result, Rule 83 was amended in 1985 to ensure that local rules cannot step into force without being publicized and commented upon. Id. 778.
- 20.
The two provisional measure aimed at ‘seizing a person,’ abolished by most States, are the civil arrest and the writ of Ne Exeat. They served similar purposes. However, while the first was an order to the sheriff to arrest the defendant “for the purpose of securing the defendant’s court appearance on a certain day,” the writ of Ne Exeat aimed “to restrain the impending departure of a defendant from the jurisdiction of the court with the intent to evade its jurisdiction or to defraud the plaintiff.” In both cases the defendant would be freed if he would post a bond. Where they still exists, they are rarely used, save the write of Ne Exeat in matrimonial cases. See Teply and Whitten (2013), at 669.
- 21.
See Rule 64(b).
- 22.
- 23.
Replevin (called, for example, in Louisiana sequestration) differs from attachment in that the “creditor-plaintiff alleges a property right superior to the debtor in the very property seized [like a secured creditor seeking to enforce a security interest],” which is not a requirement in case of either attachments or garnishments. Similarly, replevin can be a “stand alone action to recover property wrongfully distrained, [in contrast to attachment and garnishment], which are only ancillary to a main action for money damages.” See Tabb and Brubaker (2003a, b), at 41.
- 24.
Teply and Whitten (2013), at 667.
- 25.
The seizure of persons per definition is an exception, however, as they have abandoned by the States, they may be left out of our discourse.
- 26.
Wasserman (1992), at 271.
- 27.
See Rule 64(a). Sequestration is, for example, a device known in Louisiana and the statutory preconditions for obtaining it are very similar to those on preliminary attachments in other States. It also may be issued ex parte (without notice to the debtor or opportunity for a hearing) when “one claims the ownership or right to possession of property, or a mortgage, lien, or privilege thereon [and] if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.” Quoted by the US Supreme Court in Mitchell v. W.T. Grant Co., 410 U.S. 600. 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974).
- 28.
As Teply and Whitten put it, if “the defendant is given a prompt post-seizure opportunity to challenge the order and writ, to substitute a bond (undertaking) for property attached or garnished, and to challenge the amount or sufficiency of the plaintiff’s bond.” [Emphasis added.] Teply and Whitten (2013), at 667. According to some authors, they are as a rule issued ex parte. See, e.g., Tabb and Brubaker (2003a, b), at 42.
- 29.
See, e.g., Colman v. Mertes 408 N.W.2d 662 (Minn.App. 1987).
- 30.
As an illustration see the case Prospect Communications v. Herman [2013 WL 6276816] adjudicated by US District Court D. Minnesota [not reported in F.Supp.2d (2013)] where the plaintiff’s motion for a preliminary attachment was denied. In the case, the defendant instead of paying to the plaintiff for debts past due, was paying his debts to the tax authorities (IRS). To ensure satisfaction of any judgment to follow, plaintiff asked for a prejudgment attachment to seize the defendant’s home and various accounts receivable. As some retailers (debtors of the defendant) stopped payments worth several million dollars to third persons and the plaintiff failed to prove that the defendant is attempting to hide assets, the court was of the opinion that the existence of extraordinary circumstances necessary for prejudgment attachment provisions were not proven.
- 31.
Teply and Whitten (2013), at 671.
- 32.
See, e.g., Corporate Commission of the Mille Lacs Band of Ojibwe Indians v. Money Centers of American, Inc. and MCA of Wisconsin, 915 F.Supp.2d 1059 (US District Court D. Minnesota). The plaintiff requested attachment of defendants assets or, alternatively, “[enjoining] [the defendant] from dissipating assets allegedly belonging to the [Plantiff].” While the attachment request was denied because out-of-jurisdiction assets were targeted and the “Court [was] powerless to grant the requested relief,” the preliminary injunction was denied because the claim was not equitable (rather “fundamentally a contract dispute for money damages”).
- 33.
See, e.g., Allstate Sales and Leasing Co., Inc. v. Geis, 412 N.W.2d 30 (Minn. App., 1987). The case concerned a dispute that broke out between the former employer (Allstate)—a truck dealership—and some of its ex-employees when the former learned that the latter were in the process of acquiring a competing truck dealership. Allstate did not fire them immediately upon learning about that but only a bit later. However, it sued them for alleged wrongful unauthorized issuance of checks resulting of some alleged overpayments to some third parties. Allstate was awarded a TRO enjoining the spending of the overpayments and ordering depositing the amount with the court or in an escrow account. The TRO was quashed on the appellate level because Allstate “failed to show it lacked an adequate legal remedy in the attachment statute or that it would be irreparably injured.”
- 34.
See Rule 65(f).
- 35.
Shipley (2016), at 1171. Available at: http://digitalcommons.law.uga.edu/fac_artchop/1114. [Accessed 15 Apr. 2018].
- 36.
Id. The four factors are: “(1) the threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the moving party's likelihood of success on the merits; (3) the possible hardships to the moving party if the injunction is not granted outweigh the possible harm to the defendant if the injunction is granted (also called the balance of equities); and (4) granting of injunction will be in the public interest.” Id. note 4, at 1171.
- 37.
See Rule 65(b)(1), according to which the court may issue the TRO ‘without written or oral notice to the adverse party or its attorney’ if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition,” and “the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be given.”.
- 38.
Rule 65(b)(2). The expiry date set by the court may be extended by the judge for good cause for a similar period of time. Likewise, the adverse party may agree for a longer extension. Id.
- 39.
Teply and Whitten (2013), at 671. See also Rule 65(b)(3).
- 40.
See Byrd v. Ritchie Grocer Co., decided by Court of Appeals of Arkansas (1985 WL 12622; not reported in S.W.2d [1985]).
- 41.
Rule 65(c).
- 42.
Wasserman (1992), at 306–7. See, also, for example, In Re Philip R. Cohn v. David E. Lyon, 11 B.R. 611 (1981). In the case, bankruptcy trustee asked the court to issue both, a preliminary attachment and a preliminary injunction. The case involved recovery of money allegedly loaned by bankrupt to his brother-in-law. While the attachment of brother-in-law’s real estate was granted by the court, the preliminary injunction was not because “preliminary injunction could not be granted without further hearing or stipulation.” A similar pattern was applied in the already cited case of the Federal Trade Commission et al. as plaintiffs and Fortune Hi-Tech Marketing Inc. et al. Civil No. 13 CV 578 (issued on 24th of January 2013 at 1:45 p.m. by US District Court for the Northern District of Illinois, Eastern Division).
- 43.
DiSarro (2011), at 53.
- 44.
Wasserman (1992), at 306.
- 45.
Wasserman (1992), at 306.
- 46.
See Grupo Mexicano, majority opinion stating as well that “the equitable powers conferred by the Judiciary Act of 1789 [on courts] did not include the power to create remedies previously unknown to equity jurisprudence. [Therefore,] [e]ven if sitting as a court of equity, [the US Supreme court has] no authority to craft a ‘nuclear weapon’ of the law like the one advocated [by the petitioners in the case].”
- 47.
Courts, generally, consider the following four factors when deciding on preliminary injunctions: (1) the likelihood of the claimant’s success on the merits; (2) the injury claimant may sustain if preliminary injunction is denied; (3) balance between the possible injury of the applicant versus the “possible injury to the opposing party,” and (4) whether “the public interest would be harmed by issuance of a preliminary injunction.” Teply and Whitten (2013), at 672.
- 48.
For example, the new Civil Procedure Code of Louisiana of 2017 (Arts. 3501–3613) lists attachment, garnishment, sequestration as well as in personam TROs and preliminary injunctions. In Florida, for example, prejudgment writ of replevin is known (Chapter 78, Section 78.068) or injunction against removal of mortgaged personal property (Chapter 60, Section 60.03, Title VI Civil Practice and Procedure of Florida Statutes). For a list of links to State civil procedure acts or codes see https://www.law.cornell.edu/wex/table_civil_procedure.
- 49.
The Uniform Law Commission’s (2012) Summary of the Uniform Asset Preservation Orders Act highlighted this problem as follows: “Some [S]tate supreme courts concluded, in the wake of] the Grupo Mexicano decision], that courts in their [S]tate lacked the authority to issue those types of of orders [i.e., preliminary injunctions]. At least one supreme court concluded the opposite.”
- 50.
A New York court rejected awarding of a Mareva-style relief to claimants of money damages in the case Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 729 N.E.2d 683, 689 (N.Y. 2000).
- 51.
As opposed to that an Illinois federal court held that the preliminary attachment available under Illinois’ law “can be extended to assets outside the jurisdiction granting the authority.” See MX Distrib Co v. Web Records Inc., 2003 US Dist. LEXIS 9092 (N.D. III. 2003). Both cited by Hoyle (2006), note 112, at 212.
- 52.
Shipley (2016), at 1171. Consequently, the standards of the State and federal court with the same situs may not be the same; as opposed to the standards applicable for prejudgment attachments.
- 53.
395 U.S. 337, 89 S.Ct. 1820, 23 L. Ed. 2d 349 (1969).
- 54.
Two cases on the topic were adjudicated by the Supreme Court in an unusually narrow time-frame of two years. Namely, while Fuentes v. Shevin (407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556) was decided in 1972, Mitchell v. Grant (416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406) is from 1974. Although two different States (in Fuentes Florida, in Mitchell Louisiana) and the constitutionality of two different remedies were at stake (in Fuentes, pre-judgment garnishment, in Mitchell sequestration and vendor’s lien), the issues presented closely resembled. The above matrix essentially grew out of these two cases, as refined though later. As the dissenters in Mitchell suggested, the Supreme Court granted certiorari in Mitchell so that it could rectify the errors made in Fuentes and that is the reason for the narrow time frame between the two cases.
- 55.
The requirements include (1) “a factual affidavit or other sworn statement by someone with personal knowledge showing that the grounds for issuing the remedy exists;” (2) a judge rather than a clerk of a court may only issue ex parte measures; and (3) the defendant must be given the opportunity to be heard and to contest the issued measure as soon as possible (prompt post-seizure hearing). See Teply and Whitten (2013), at 677. Not a requirement, but the constitutionality of an ex parte provisional remedy “will be more secure if (1) it is sought for the seizure of property in which the plaintiff has a pre-existing interest, and (2) the plaintiff’s claim is subject to documentary proof, rather than being dependent upon the testimony of witnesses about (perhaps complex) past events.” Id. at 677–78. The pre-existing interest is, for example, a security interest (e.g., pledge, mortgage).
- 56.
The text of the uniform act is available electronically at http://www.uniformlaws.org/shared/docs/asset_freezing_orders/UAPOA_Final%20Act_2014.pdf. [Accessed on 26 Aug. 2017.].
- 57.
UCL, Asset Preservation Orders Act Summary, available electronically at http://www.uniformlaws.org/ActSummary.aspx?title=Asset-Preservation%20Orders%20Act. [Accessed on 28 Aug. 2017]. [Hereinafter: UAPOA Summary.].
- 58.
Id. UAPOA Summary.
- 59.
Id. UAPOA Summary.
- 60.
UAPOA prefatory notes and comments, at 2. Note that the prefatory notes precede the text of UAPOA in the version available electronically at the website of the Uniform Law Commission.
- 61.
UAPOA prefatory notes and comments, at 2. Preliminary attachments suffer from other deficiencies as well though subject to variation from State to State. For example, in Pennsylvania this remedy is not available neither in federal or state court in this state as the related statutory provisions were rescinded, in many other States it is available only in certain particular kinds of cases or some limits are placed on what kinds of property may be attached. See Wasserman 1992, at 277.
- 62.
UAPOA Arts. 8(c) and 8(d). The first, for example, foresees that the order may not be recognized by a US court if it was issued by a foreign court not having personal or in rem jurisdictions or if it “was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law.”
- 63.
UAPOA Art. 8(b).
- 64.
Id. See also UAPOA Summary.
- 65.
As the prefatory note to the UAPOA states: “An asset-preservation order is injunctive relief, applying in personam, which preserves assets by preventing their dissipation so that sufficient assets will be available to satisfy an existing or future judgment. Because an asset-preservation order is in the nature of injunctive relief, violations of the order are punishable by contempt.” [Emphasis added.].
- 66.
UAPOA Art. 4(a).
- 67.
UAPOA Art. 5. The act speaks of ex parte measures as ‘orders issued without notice.’
- 68.
Id. UAPOA Arts. 4, 5 and 7.
- 69.
UAPOA Art. 7.
- 70.
Wasserman (1992), at 277.
- 71.
- 72.
See, e.g., Cal. Civ. Proc. Code §§ 483.010, 492.010 (2006).
- 73.
These designations were borrowed from Wasserman. See Wasserman (1992), at 276–77.
- 74.
Wasserman (1992), at 281.
- 75.
Wasserman (1992), at 281–82.
- 76.
Wasserman (1992), at 284.
- 77.
See the ensuing sub-section discussing this topic.
- 78.
This notwithstanding that as per Rule 25.3(1) of the CPR they court may but must not grant an interim remedy “on an application made without notice if it appears to the court that there are good reasons for not giving notice.”
- 79.
Hoyle (2006), para 1.22, at 8.
- 80.
Id.
- 81.
DiSarro (2011), at 53.
- 82.
Hoyle (2006), para 1.12, at 4.
- 83.
- 84.
- 85.
See, e.g., State Bank & Trust Company v. Hambone’s Corporation, (Court of Common Please, Summit County, Ohio, case No: 2001-11-5455) citing Perkins v. Quaker City (1956) 165 Ohio St. 120 (Syllabus).
- 86.
Jeffrey (2005), at 726. Available at: http://scholarship.law.stjohns.edu/jcred/vol19/iss3/. [Accessed on 15 Apr. 2018]. Wilson drew the above conclusion based on the following cases: In Re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1478 (9th Cir. 1994) [affirming temporary injunction to enjoin Estate from transferring, secreting, or dissipating Estate’s assets pending litigation]; MS Distrib Co v. Web Records Inc., 2003 US Dist. LEXIS 9092; Philips Med. Sys. Int’l B.V., 8 F.3d (7th Cir. 1993) [affirming order to the defendant to deposit money into court prior to final judgment]; Rep. of the Philippines v. Marcos, 862 F2d.1355, 1364 (9th Cir. 1988) [affirming freezing order prohibiting defendants from dissipating assets not within the US territorial jurisdiction] and Fed. Trade Comm’n v. Verity Int’l, 2001 US Dist. LEXIS 6097 (S.D.N.Y. 2001) [denying defendant’s motion to vacate or modify preliminary injunction]. Cited also by Hoyle (2006), note 113, at 212.
- 87.
Teply and Whitten (2013), at 674.Criminal contempt sanctions—either fixed fines or fixed jail sentences—“are imposed to punish someone for violating a court decree in order to vindicate the court’s authority.” Civil contempt sanctions, on the other hand, aim to “coerce compliance with the court’s order in the future.” Another difference between the two relates to the right to a trial by jury: while imposing of serious penalties for criminal contempt requires trial by jury, that is not a requirement in case of civil contempt sanctions. Id.
- 88.
See, e.g., the already mentioned case of FTC v. Fortune Hi-Tech Marketing Inc. et al. Civil No. 13 CV 578 (issued on 24th of January 2013 at 1:45 p.m. by US District Court for the Northern District of Illinois, Eastern Division), which (1) ex parte TRO with asset freeze, (2) appointment of a receiver, and (3) some other equitable relief was asked. For example, the court imposed certain duties on such third parties as well, which held defendants’ assets, as well as prohibition of disclosure customer information, and duty to maintain records and report new business activity. These all were necessary given that the case was about a major pyramid scheme.
- 89.
It is not without reason that scholars and commentators of the law on Mareva Injunctions (freezing orders) underline that “[a] skilful choice of ancillary orders makes both Search and Freezing Orders even more powerful weapons in a claimant’s armoury.” See Hoyle (2006), para 8.1, at 115.
- 90.
Federal Rules of Civil Procedure Rule 18 on Joinder of Claims stating as a general rule that “A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party.” Though as per Rule 42 the court may order separate trials for one or more claims ‘for convenience, to avoid prejudice, or to expedite and economize.’ See also Rule 54(b) according to which the court must adjudicate all claims (but may decide on some earlier) and Rule 54(c)—allowing for cumulating of remedies—spelling out that “Every … final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings.”
- 91.
As Wasserman phrased, “[…] rather than barring the defendant from making any transfers whatsoever, the court can preliminary enjoin the defendant only from making transfers outside the ordinary course of business, Or the court can freeze all assets except those needed for ordinary living expenses or attorney’s fees. Or it can modify or vacate the injunction if the defendant posts a bond to ensure satisfaction of the plaintiff’s expected money judgement. Exercising this equitable discretion, courts can accommodate the defendant’s basic needs without risking irreparable tertiary harm to the plaintiff. […].” Quoted from Wasserman (1992), at 297–98.
- 92.
Sandrock argued in 1987 that the English Mareva and US prejudgment attachments functionally are very similar as they “[satisfy] the same procedural needs.” Sandrock (Winter 1987), at 11. [He recommends international lenders to acquire express waivers of immunity from their sovereign borrowers to ensure that they can resort to provisional measures.] Id. at 42.
- 93.
David Capper criticized not only the majority but also the concurring and dissenting minority in Grupo Mexicano not only for the “awful job of explaining why the Mareva injunction should not be part of the remedial machinery of the federal courts,” but also for having improperly briefed the pertaining English law as visible from the opinion of the minority. As he put it: “Not even the opinion of the minority reveals a clear understanding of what a Mareva injunction is.” One cannot but side also with his note that in fact there was no reason for granting certiorari either. Capper (2005), at 2180.
- 94.
Tamaruya (2010), at 367.
- 95.
Park (2017), at 1001 (The author argues for a treaty-based solution of the problem.).
- 96.
As the majority in Grupo Mexicano formulated, “[t]he debate concerning this formidable power over debtors should be conducted and resolved where such issues belong in our democracy: in the Congress,” rather than by courts.
- 97.
See, e.g., Kirschner and Silverman (2002). [Accessed on 15 Apr. 2018]. The authors were of the opinion that “Mareva orders do have a place in the United States,” among others, because such orders would be of tremendous use also in the context of bankruptcy proceedings. Namely, while application of avoidance laws of bankruptcy law (involving often also litigation) “takes a tremendous amount of time and absorbs a tremendous amount of money that would otherwise be available to creditors,” Mareva orders would be the means to prevent avoidable transactions before bankruptcy.
References
Domestic Law: United States
California Civil Procedure Code (2006)
Civil Procedure Code of Louisiana of 2017
Federal Rules of Civil Procedure (1938)
Florida Civil Practice and Procedure
US Soft Law
Uniform Law Commission (2012) Uniform Asset-Preservation Orders Act
Books
Fletcher PG, Sheppard S (2005) American law in a global context: the basics. Oxford University Press
Gilmore G (1977) The ages of American law. Yale University Press
Hazard J (1985) Civil procedure, 3rd edn. Little, Brown & Co., Boston-Toronto
Hoyle MSW (2006) Freezing and search orders, 4th edn. Informa-London
Tabb JCh, Brubaker R (2003a) Bankruptcy law—principles, policies, and practice. Anderson Publ, Cincinnati
Tabb JCh, Brubaker R (2003b) Bankruptcy law—principles, policies, and practice. Anderson Publ, Cincinnati
Teply LL, Whitten RU (2013) Civil procedure, 5th edn. Carolina Academic Press
Wright SC, Kane MK (2011) Law of federal courts. West Academic Publishing (Hornbook Series) (2017)
Articles
Barrack LD, Bolton DJ, Flom LB (2011) Grupo Mexicano: Has Picard Resurrected the Right to Pre-Judgment Attachments? Am Bankruptcy Inst J 52–53
Burbank BS (2000) The bitter with the sweet: tradition, history, and limitations on federal judicial power—a case study. Notre Dame Law Rev 75(4):1291–1346
Capper D (2005) The need for Mareva injunctions reconsidered. 73 Fordham Law Rev 2161
DiSarro A (2011) Freeze frame: the Supreme Court’s reaffirmation of the substantive principles of preliminary injunctions. Gonzaga Law Rev 47(1):54–98
Goldman JI (2005) Can you freeze assets in a fraudulent conveyance action after Grupo Mexicano? Am Bankr Inst J 54
Jeffrey LW (2005) Three if by equity: Mareva orders & the new British invasion. J Civil Rights and Econ Dev 19(3) Article 5. Available at: http://scholarship.law.stjohns.edu/jcred/vol19/iss3/
Kirschner TJ, Silverman JR (2002) Mareva orders fact or fiction in the United States. Am Bankruptcy Inst J (ABI) (1 Nov 2002 issue), available electronically at http://www.abi.org/abi-journal/mareva-orders-fact-or-fiction-in-the-united-states
Laycock D (1993) The Triumph of Equity. Law & contemporary problems, vol 56, pp 53–82
Park SN (2017) Recognition and enforcement of foreign provisional orders in the United States: toward a practical solution. Univ Pennsylvania J Int Law 38(3):999–1040
Sandrock O (1987) Prejudgment attachments: securing international loans or other claims for money. Int Lawyer 21(1):1–42
Shipley DE (2016) The preliminary injunction standard in diversity: a typical unguided erie choice. Georgia Law Rev 50:1169–1231
Tamaruya M (2010) The Anglo-American perspective on freezing injunctions. Civil Justice Q 29(3):350–368
Wasserman R (1992) Equity renewed: preliminary injunctions to secure potential money judgments. Washington Law Rev 67(1):257–349
Court Cases: United Kingdom
Mareva Compania Naviera SA v International Bulk Carriers SA (the Mareva) (1975) 2 Lloyds Rep. 509 [1980] 1 All ER 213 CA
Court Cases: United States
Allstate Sales and Leasing Co., Inc. v. Geis, 412 N.W.2d 30 (Minn. App., 1987)
Byrd v. Ritchie Grocer Co., decided by Court of Appeals of Arkansas (1985 WL 12622; not reported in S.W.2d [1985])
Civil No. 13 CV 578 (issued on 24th of January 2013 at 1:45 p.m. by US District Court for the Northern District of Illinois, Eastern Division) in the case between the Federal Trade Commission et al. as plaintiffs and Fortune Hi-Tech Marketing Inc. et al. as defendants. See at https://www.ftc.gov/sites/default/files/documents/cases/2013/01/130128fhtmtro.pdf. Accessed 10 Apr 2018
Colman v. Mertes 408 N.W.2d 662 (Minn.App. 1987)
Corporate Commission of the Mille Lacs Band of Ojibwe Indians v. Money Centers of American, Inc. and MCA of Wisconsin, 915 F.Supp.2d 1059 (US District Court D. Minnesota)
Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 729 N.E.2d 683, 689 (N.Y. 2000)
Fed. Trade Comm’n v. Verity Int’l, 2001 US Dist. LEXIS 6097 (S.D.N.Y. 2001)
FTC v. Fortune Hi-Tech Marketing Inc. et al. Civil No. 13 CV 578 (24th of January 2013) District Court for the Northern District of Illinois, Eastern Division
Fuentes v. Shevin (407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556)
Grupo Mexicano de DeSarrollo, S.A. v. Alliance Bond Fund, Inc. 527 U.S. 308 (1999)
In Re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1478 (9th Cir. 1994)
In Re Philip R. Cohn v. David E. Lyon, 11 B.R. 611 (1981)
Mitchell v. W.T. Grant Co., 410 U.S. 600. 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974)
MS Distrib Co v. Web Records Inc., 2003 US Dist. LEXIS 9092; Philips Med. Sys. Int’l B.V., 8 F.3d (7th Cir. 1993)
MX Distrib Co v. Web Records INc., 2003 US Dist. LEXIS 9092 (N.D. III. 2003)
Perkins v. Quaker City (1956) 165 Ohio St. 120 (Syllabus)
Philips Med. Sys. Int’l B.V., 8 F.3d (7th Cir. 1993)
Prospect Communications v. Herman [2013 WL 6276816] adjudicated by US District Court D. Minnesota (not reported in F.Supp.2d (2013)
Rep. of the Philippines v. Marcos, 862 F2d.1355, 1364 (9th Cir. 1988)
Shipley DE (2016) The preliminary injunction standard in diversity: a typical unguided Erie choice, 50 Ga. L. v. 1169 (2016), at 1171
Sniadach v. Family Finance Corp 395 U.S. 337, 89 S.Ct. 1820, 23 L. Ed. 2d 349 (1969)
State Bank & Trust Company v. Hambone’s Corporation, (Court of Common Please, Summit County, Ohio, case No: 2001-11-5455)
III Finance v. Aegis Consumer Funding Group, Inc., 1999 WL 461868 (S.D.N.Y., 1999)
Internet Sources: United States
Uniform Law Commission (2012) The Uniform Asset-Preservation Orders Act—A Symmary
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2018 The Author(s), under exclusive license to Springer International Publishing AG, part of Springer Nature
About this chapter
Cite this chapter
Tajti, T., Iglikowski, P. (2018). Provisional Measures in the United States. In: A Cross Border Study of Freezing Orders and Provisional Measures. SpringerBriefs in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-94349-7_3
Download citation
DOI: https://doi.org/10.1007/978-3-319-94349-7_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-94348-0
Online ISBN: 978-3-319-94349-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)