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80 The US-Israel Legal Review 2019
US-ISRAEL: INTERNATIONAL JUDGEMENT ENFORCEMENT
States. It and other US discovery mechanisms, also
can be used to obtain information from US bank
branches, including correspondent banks, in order
to trace international, US dollar denominated wire
transfers, even if the assets are located outside of
the United States.
IS IT POSSIBLE TO OBTAIN INFORMATION
AND EVIDENCE FROM LAW ENFORCEMENT
AND REGULATORY AGENCIES FOR USE IN
CIVIL PROCEEDINGS?
Civil proceedings should not be viewed as an
alternative to criminal proceedings when issues of
criminal law are involved. Coordinating with federal
prosecutorsand local lawenforcement agencies,who
may also seize or freeze assets, can provide a fruitful
avenue for efforts to secure and ultimately recover
assets. Evidence entered in criminal proceedings
may also be useful for civil proceedings.
That said, the ability to obtain information
from law enforcement is generally limited to only
specific victims’ rights laws. Generally speaking,
in US jurisdictions, information collected in the
course of a criminal investigation is confidential,
even from the victim of the crime. There are
limited exceptions that permit a lawyer for a crime
victim to access certain types of information in the
possession of the government.
Legislation such as the federal Freedom
of Information Act (that provides access to
information possessed by the federal government),
and state equivalents of that law, should also be
considered.
US financial reporting requirements also
provide valuable documentation that may become
available to an asset recovery practitioner. For
example, financial institutions are required to
maintain Suspicious Activity Reports, Currency
Transaction Reports, and “Know Your Customer”
materials. Civil litigants can attempt to secure
relevant information by US discovery mechanisms
(e.g., subpoenas).
WHAT TOOLS ARE AVAILABLE FOR
OBTAINING INFORMATION FROM
THIRD PARTIES NOT SUSPECTED OF
WRONGDOING?
Once a foreign judgment has been domesticated
in the US, the creditor gains access to the post-
judgment asset discovery powers available under
federal or state law, which generally includes
seeking documents and deposition or in-court
testimony from the debtor and from third parties.
The scope of post-judgment discovery in the US
is very broad, generally permitting a judgment
creditor to obtain any evidence that is “relevant”
to the enforcement effort.
WHAT ARE THE ALTERNATIVE FUNDING
ARRANGEMENTS AVAILABLE TO PARTIES
CONTEMPLATING OR INVOLVED IN
LITIGATION? DO THE COURTS HAVE ANY
POWERS TO MANAGE THE OVERALL COST
OF THAT LITIGATION?
The default rule in the United States is that a party
is responsible for paying its own attorney’s fees. In
certain limited circumstances, statutes permit fee
shifting, and courts have discretion to shift fees
where a party has engaged in misconduct or has
abused the court process. Traditionally, parties to US
litigation seeking alternative fee arrangements have
resorted to contingency fee or fixed fee agreements.
More recently, large-scale third-party litigation
financing has become increasingly popular in the
United States as an alternate funding mechanism
for litigation. Under the model, an outside investor
with no other interest in the dispute funds the
litigation in exchange for a return of capital and a
percentage of the recovery. Litigation financing is
permitted in many, but not all, US states.
Kobre & Kim has partnered with Bentham
IMF, one of the world’s leading litigation finance
companies, to launch the Kobre & Kim – Bentham
IMF Litigation Fund for Israeli Companies, a $30
million fund specifically designed to empower
Israeli clients to enforce their cross-border
legal claims against multinationals and other
wrongdoers.
HOW CAN JUDGMENT CREDITORS
ENHANCE THEIR LIKELIHOOD OF
RECOVERING ASSETS IN CASES WHERE
THERE ARE COMPETING CREDITORS?
Creditors who are secured will invariably have
greater success at monetizing judgments than
unsecured creditors. Further, US states generally
apply the principle of “first in time, first in right,”
which provides that whichever unsecured creditor