Gau Shan Company, Ltd. v. Bankers Trust Company

956 F.2d 1349, 1992 U.S. App. LEXIS 2597, 1992 WL 29893
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 24, 1992
Docket90-5875
StatusPublished
Cited by71 cases

This text of 956 F.2d 1349 (Gau Shan Company, Ltd. v. Bankers Trust Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gau Shan Company, Ltd. v. Bankers Trust Company, 956 F.2d 1349, 1992 U.S. App. LEXIS 2597, 1992 WL 29893 (6th Cir. 1992).

Opinions

RYAN, Circuit Judge.

This is an appeal from a preliminary injunction enjoining defendant Bankers Trust Company, an American corporation, from filing a lawsuit in Hong Kong against plaintiff Gau Shan Company, a Hong Kong corporation. The issue for decision is whether the district court offended principles of international comity in issuing its preliminary injunction.

We conclude that the lower court misinterpreted the relevant principles of international comity and, as a result, abused its discretion in restraining Bankers Trust from prosecuting the foreign action. Therefore, we reverse.

I.

Gau Shan Company is a cotton merchant engaged in marketing cotton to the People’s Republic of China. One of Gau Shan’s sources for American cotton was the Julien Company, a Tennessee corporation. Bankers Trust was the primary source of Julien’s financing for its cotton sales. Gau Shan became aware of Bankers Trust through its dealings with Julien.

In October 1989, representatives of the People’s Republic of China expressed an interest in purchasing American cotton. Lawrence Lane, the managing director of Gau Shan, sought assurances from Andrew Halle, a vice president of Bankers Trust, that Bankers Trust would provide funds necessary for Julien to release, at Gau Shan’s request, the cotton Gau Shan wished to sell to China. Halle assured Lane that he “would work something out.” Based upon these assurances, Gau Shan agreed to sell 5,000 metric tons of cotton to China on October 20, 1989, and another 10,000 metric tons on October 23, 1989.

Thereafter, Halle learned that Julien had an overdue debt to a creditor, LOR, Inc., which had to be paid by October 26. This debt was unrelated to the Gau Shan contracts, and Julien did not have the money to pay it. Halle suggested that Julien pay the LOR, Inc. obligation with the funds to be prepaid to Julien by Bankers Trust for Gau Shan’s China cotton sale.

On October 25,1989, Halle, from a Julien office in Memphis, Tennessee, called Lane in Hong Kong and told him that Bankers Trust could not advance the necessary money to Julien unless Gau Shan signed a $20 million promissory note payable to the bank. Under protest, Lane agreed and signed the note on October 27, 1989, in Hong Kong, and returned it to Bankers Trust in New York. The note contained a clause providing that any dispute concerning its terms would be governed by New York law.

After the Halle-Lane conversation, Halle instructed Donna Elzie, Julien’s chief administrative officer, that Gau Shan was going to prepay for the cotton in a way that was similar to an $11 million transaction which transpired in July 1989 and that when the $20 million was credited to the Julien account she was to wire the money to Julien’s creditor, LOR, Inc., to pay off that debt. After receiving the payment, LOR would release some certificated cotton which would go to Mocatta Fixtures Corporation. Mocatta would then pay Julien for the shipment, thus producing some money in the Julien account. Halle would then use the “Mocatta money” to buy the Gau Shan cotton. When Elzie asked Halle if he had told Gau Shan’s Lane about using the $20 million to pay off the LOR debt, Halle replied that he had not.

On October 26, 1989, Bankers Trust deposited $20 million in Julien’s account. Bankers Trust then wired the entire $20 million out of Julien’s account into a bank in Atlanta, in satisfaction of the debt to LOR, Inc. Because of some problems with the release of the certificated cotton, Julien shipped to China only about 24% of the cotton it had agreed to ship on Gau Shan’s behalf. As a result, Gau Shan fulfilled only a part of its obligations to China.

On February 15, 1990, and again on February 21, 1990, Bankers Trust’s attorneys [1352]*1352wrote to Gau Shan demanding payment of the note. Bankers Trust advised Gau Shan that if the note was not paid by February 26, it would file a suit in Hong Kong against Gau Shan for its collection. Without responding to Bankers Trust, Gau Shan filed its own complaint in the United States District Court for the Western District of Tennessee on February 23,1990, asking for rescission of the note, alleging that it was induced to sign it by Halle’s fraud. Gau Shan also sought damages for common law fraud and deceit and for negligence, and claimed treble damages under Tenn.Code Ann. § 47-50-109, alleging that Bankers Trust induced Julien to breach its contract with Gau Shan.

On February 23, 1990, the district court issued a temporary restraining order enjoining Bankers Trust from initiating any legal action against Gau Shan in Hong Kong relating to the note. The restraining order was later extended by consent to accommodate Bankers Trust's request for a hearing on the legal issue of international comity. On April 4, 1990, the district court determined that its restraining order did not violate principles of international comity. A hearing was held on May 9-11, 1990 on Gau Shan’s demand for preliminary injunction, following which the court determined that Gau Shan would be irreparably harmed if Bankers Trust sued Gau Shan in Hong Kong or if Bankers Trust exercised its rights under Hong Kong law to appoint a receiver for Gau Shan pursuant to Hong Kong judicial procedure or under a deed of charge governed by Hong Kong law.

The court also determined that Gau Shan had demonstrated a strong likelihood that it could succeed on the merits of its underlying fraud claims because Halle, the court found, had testified untruthfully at the injunction hearing in order to protect himself and Bankers Trust concerning the Gau Shan transaction. The trial court stated that “Halle testified falsely ... concerning ... the telephone conversations with Lane on October 19 and 25, 1989. He also testified falsely concerning his conversations with Donna Elzie on October 25, 1989.” Therefore, the trial court granted Gau Shan’s motion for preliminary injunction preventing Bankers Trust from initiating a suit in Hong Kong for collection of the $20 million note.

II.

This court’s standard of review of a trial court’s order granting a preliminary injunction is whether the lower court’s decision was an abuse of discretion. N.A.A.C.P. v. City of Mansfield, 866 F.2d 162, 166 (6th Cir.1989). “A district court abuses its discretion when it relies on clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard.” Id. at 166-67 (citation omitted). “[I]n the absence of such an error the district judge’s weighing and balancing of the equities should be disturbed on appeal only in the rarest of cases.” Id. at 166 (citation omitted).

The underlying issue is whether, in issuing its preliminary injunction, the district court “improperly applie[d] the law or use[d] an erroneous legal standard” by misinterpreting applicable principles of international comity.

A.

International Comity

It is well settled that American courts have the “power to control the conduct of persons subject to their jurisdiction to the extent of forbidding them from suing in foreign jurisdictions.” Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 926 (D.C.Cir.1984) (footnote omitted).

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Bluebook (online)
956 F.2d 1349, 1992 U.S. App. LEXIS 2597, 1992 WL 29893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gau-shan-company-ltd-v-bankers-trust-company-ca6-1992.