UNITED STATES COURT OF APPEALS TENTH CIRCUIT

SOCIETY OF LLOYD’S,

Plaintiff-Appellee,

v. No. 02-2301 RICHARD A. REINHART,

Defendant-Appellant.

SOCIETY OF LLOYD’S,

Plaintiff-Appellee,

v. GRANT R. CALDWELL, DAVID L. GILLETTE, JAMES R. KRUSE, EDWARD W. MUIR, and KENT B. PETERSEN, Defendants-Appellants.

SOCIETY OF LLOYD’S

Plaintiff-Appellee,

v. STEPHEN M. HARMSEN; KELLY C. HARMSEN, Defendants-Appellants. No. 03-4065

No. 03-4082-2-

SOCIETY OF LLOYD’S

Plaintiff-Appellee,

v. WALLACE R. BENNETT,

Defendant-Appellant. Nos. 03-4094, 03-4183 and 04-4142

ORDER Filed May 6, 2005

Before SEYMOUR , HENRY , and LUCERO , Circuit Judges.

The opinion filed March 23, 2005, failed to include case number 04-4142, Society of Lloyd’s v. Bennett . An amended opinion is attached hereto, adding th at case number to the caption. This order shall stand as and for the amended mandate of the court. Entered for the Court PATRICK FISHER, Clerk of Court

by: Amy Frazier Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 23 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SOCIETY OF LLOYD’S,

Plaintiff-Appellee,

v. No. 02-2301 RICHARD A. REINHART,

Defendant-Appellant.

SOCIETY OF LLOYD’S,

Plaintiff-Appellee,

v. GRANT R. CALDWELL, DAVID L. GILLETTE, JAMES R. KRUSE, EDWARD W. MUIR, and KENT B. PETERSEN, Defendants-Appellants.

SOCIETY OF LLOYD’S

Plaintiff-Appellee,

v. STEPHEN M. HARMSEN; KELLY C. HARMSEN, Defendants-Appellants. No. 03-4065

No. 03-4082-2-

SOCIETY OF LLOYD’S

Plaintiff-Appellee,

v. WALLACE R. BENNETT,

Defendant-Appellant. Nos. 03-4094, 03-4183 and 04-4142

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICTS OF NEW MEXICO AND UTAH (D.C. NOS. 02-264 LFG/WWD-ACE, 2:02-CV-204-TC)

George R. McFall (Patrick J. Rogers, Modrall, Sperl ing, Roehl, Harris & Sisk, P.A., Albuquerque, New Mexico and Theodore W. Gripp o, Jr., Lindenbaum Coffman Kurlander Brisky and Grippo, Ltd., Chicago, Illinois, with him on the briefs), Modrall, Sperling, Roehl, Harris & Sisk, P .A., Albuquerque, New Mexico for Defendant-Appellant in Case Number 02-2301. Barry D. Williams (Rikki L. Quintana with him on th e brief) Krehbiel, Bannerman & Williams, P.A., Albuquerque, New Mexico , for Plaintiff-Appellee in Case Number 02-2301. Matthew L. Lalli (Alan L. Sullivan and Troy L. Booh er, Snell & Wilmer, L.L.P., Salt Lake City, Utah, and Theodore W. Grippo, Jr., Lindenbaum Coffman Kurlander Brisky and Grippo, Ltd., Chicago, Illinoi s, with him on the briefs) Snell & Wilmer, L.L.P., Salt Lake City, Utah, for D efendants-Appellants in Case Number 03-4065. Steven A. Wuthrich, Montpelier, Idaho, for Defendan ts-Appellants in 03-4082. Wallace R. Bennett, Defendant-Appellant, filed brie fs pro se in Case Numbers 03- 4094 and 03-4183.-3-

Michael N. Zundel (James A. Boevers and Thomas R. B arton with him on the briefs) Prince, Yeates & Geldzahler, Salt Lake City , Utah, for Plaintiff-Appellee in 03-4065, 03-4082, 03-4094 and 03-4183.

Before SEYMOUR , HENRY , and LUCERO, Circuit Judges.

HENRY, Circuit Judge.

This consolidated appeal involves the Plaintiff-App ellee Lloyd’s of London’s request for the court’s recognition and en forcement of money judgments issued by the High Court of Justice, Queen’s Bench Division, London, England, in its favor against each of the defendants. Lloyd ’s obtained money judgments in England against each of the six New Mexicans (the “ New Mexico Names”) and the nine Utahns (the “Utah Names”) (collectively, t he “Names”) in connection with underwriting obligations. Lloyd’s then brought actions in the United States District Court for the Districts of New Mexico and Utah seeking recognition of these judgments as final and enforceable, entitled to full faith and credit in New Mexico and Utah, respectively. Each federal distri ct court granted summary judgment in favor of Lloyd’s. Of the Utah Names, o ne defendant reached a settlement with Lloyd’s, leaving eight in this liti gation. Five of the six New Mexico Names reached settlements with Lloyd’s. We have consolidated these cases for disposition on appeal.-4-

On appeal, the New Mexico Name raises several argum ents. First, he argues that the English judgment deprived him of du e process under New Mexico’s Uniform Foreign Money-Judgment RecognitionAct. Second, the New Mexico Name maintains that the English judgment ste mmed from an action that is repugnant to New Mexico’s public policy as the judg ment: (a) violates New Mexico’s securities laws; (b) is based on unconscio nable contracts; (c) stems from adhesion contracts; (d) comprises unlawful cognovitnotes, (e) is based on illusory contacts; and (f) violates the New Mexico Unfair Practices Act. The Utah Names offer similar arguments. They conte nd that the district court cannot enforce the English judgments under Ut ah law, because the English system of jurisprudence is incompatible with Americ an standards of due process, and that they did not receive an opportunity for a full and fair trial. The defendants also maintain that the English judgments conflict with Utah public policy. One Utah Name questions whether diversity jurisdiction exists, and also challenges the enforcement of the English judgments as violative of Utah securities laws. Two Utah Names also contend that the district court’s approval of the English post-judgment interest of eight perc ent per annum was incorrect. We hold that the Utah and New Mexico Names received due process under the English system of jurisprudence and that, in th e thirty-two days of hearing before English trial and appellate courts, they rec eived an opportunity for a full-5-

and fair trial. As to the New Mexico Name, specifi cally, the English legal proceedings provided ample due process pursuant to New Mexico’s Uniform Foreign Money-Judgment Recognition Act. We also ho ld that the Lloyd’s judgments are not repugnant to New Mexico’s public policy. As to the Utah Names, we hold that the English proc eedings satisfied Utah’s due process requirements and the English jud gments do not conflict with Utah’s public policy. We also affirm the district court’s denial of a motion for discovery and a motion to certify questions of law to the Utah Supreme Court. We hold that the parties in this case are diverse, and that enforcement of the English judgments does not violate Utah’s securitie s laws. Finally, we reverse the district court’s determination that Lloyd’s English judgments should accrue interest at the English post-judgment interest rate

.

I. BACKGROUND Numerous courts have summarized the basic facts app licable to the underlying litigation, and these facts are not in dispute. See Soc’y of Lloyd’s v. Ashenden , 233 F.3d 473 (7th Cir. 2000); Haynsworth v. The Corp. , 121 F.3d 956 (5th Cir. 1997); Allen v. Lloyd’s of London , 94 F.3d 923 (4th Cir. 1996); Soc’y of Lloyd’s v. Webb , 156 F. Supp. 2d 632 (N.D. Tex. 2001). We shall summarize-6-

the pertinent facts here, borrowing heavily from th e detailed and well-reasoned Webb decision. Lloyd’s is not an insurer, but rather is the regulator of an insurance market located in London. Through Parliamentary Acts, spe cifically the Lloyd’s Acts of 1871-1982, Parliament created Lloyd’s and authorize d it to regulate the English insurance market. Individual and corporate members of Lloyd’s known as “Names” underwrite insurance. The New Mexico defen dants and Utah defendants became Names in the Lloyd’s market between the late 1970’s and late 1980’s. The Names underwrite insurance by forming groups known as syndicates. Names are passive investors in the sophisticated sc heme, but along with potential profits they may incur substantial personal and dir ect liability with respect to a portion of a syndicate’s risk in the Lloyd’s market . The liability of each Name is several rather than joint. As a condition of becom ing members of Lloyd’s, Names enter into agreements governing their membership in Lloyd’s and their underwriting in the Lloyd’s market. At issue here is the General Undertaking Agreement, which obligated the New Mexico and Utah Names, and all o ther Names, to comply with the Parliamentary Acts under which Lloyd’s was created and to submit any dispute arising out of their memb erships or underwriting at Lloyd’s to the English courts for resolution pursuant to English law. Each Name “irrevocably agree[d] that the courts of England [h ad] exclusive jurisdiction to-7-

settle any dispute” arising out of the underwriting of insurance business, and agreed that such “[p]roceedings brought in the Engl ish courts [were] conclusive and binding upon any party and may be enforced in t he courts of any other jurisdiction.” Case No. 02-2301, Aplts’ App. vol. I, at 43 (General Undertaking Agreement). By the early 1980’s, which is about the time that L loyd’s solicited the Utah and New Mexico Names, Lloyds knew that it had problems with rising asbest os and toxic tort claims. The syndicates’ reserves were inadequate to handle these rising claims and a committee known as the Asbestos Workin g Party was formed to gather information about the breadth of t he problem. The problem was described as “the largest phenomenon th at has ever hit the casualty insurance industry” and “the most signific ant legal and loss cost issue in the history of the industry.” Information about these claims was not published in the marketplace, was om itted from the audit instructions, and was not published in Lloyds finan cial statements for the year
. Although a letter was prepared that provided the necessary disclosures to the Names, it was merely placed in afile and never distributed to the intended Names. Simultaneously, Lloyds was campaigning in Parliament for passage of the Lloyds Act of 1982 which granted Lloyds and its governing body extraordinarybylaw-making powers and immunity. In exchange, Lloyds committed to providing better quality information to prospective Names. Th is promise was not fulfilled and Lloyds admitted to Parliament that ithad not kept its promise. “The Council of Lloyds very much regrets t hat the undertaking to implement the recommendations . . . within 2 yea rs of the Royal Assent has not been kept.” Webb , 156 F. Supp. 2d at 635 (emphasis supplied) (inter nal citations omitted). According to former Name and lead plaintiff in the fraud action against Lloyd’s, Sir Peter Jaffray, “[t]he only way they co uld keep going was to suppress-8-

the asbestos information, cook the books to ensure they were still showing profits and go after new investors.” Case No. 02-2301, Apl ts’ App. vol. I, at 84 (Combined Mem. in Opp. to Summ. Judgment and in Sup port of Motion in Alt. for Discovery under Rule 56(c), Ex. 1 at 3 ( Lloyd’s of London 1688 – ?, T IME Feb. 21, 2002)). Further, [d]uring the five years that Lloyds failed to impro ve information disseminated to prospective Names, approximately 10 ,000 new Names had joined Lloyds, most of whom were U.S. investors

. Webb , 156 F. Supp. 2d at 635. The New Mexico and Utah Names contend that the Lloyd’s representative emphasized Lloyd’s long history of profitability, its exclusive and selective members, its program of ann ual audits, and that the risk of “unlimited liability” had been of little consequenc e in Lloyd’s three-hundred-year history. See Case No. 02-2301, Aplts’ App. vol. I, at 276-320 ( Mem. in Opp. to Summ. Judgment, exs. 3 - 8 (Affids. from Utah Names )). For the years of account 1988 through 1992, Lloyds suffered losses in excess of £8 billion (these were reported in 199 1-1995). Once the Names’ inquiries into the cause for the losses bega n, they concluded that Lloyds had been guilty of serious negligence a nd/or fraud. . . . The Names eventually filed suits in numerous cities across the United States claiming fraud against Lloyds in conn ection with their recruitment as investors, their placement on high-r isk syndicates and their continuing to underwrite at Lloyds. In each of the cases Lloyds moved to dismiss based on a forum selection (the forum being in England) and choice of law (the law being English) clauses contained in the General Undertaking ( i.e. , a contract) that the Names had signed. In each of th e cases filed, the courts of appeals enforced the forum selection and choice of law clauses.1 To the extent that Lloyds raises res judicata and collateral estoppel as

affirmative defenses with respect to Mr. Bennett’s arguments against the enforcement of the choices of law and forum, these matters are addressed in Richards , as discussed in § II(C)(4)(b), infra , and we hold such claims are precluded. Although Richards also discussed the policies of the anti-waiver provisions of the federal securities laws and refer enced various state securities laws, Richards was limited to the choices of law and forum procee dings. To the extent the Names challenge the choices of law and f orum under the state

(continued...) -9- Webb , 156 F. Supp. 2d at 635-36 (internal citations omi tted). Apparently, the New Mexico Name and several Utah Na mes were parties to one of these suits, Richards v. Lloyd’s of London , 135 F.3d 1289 (9th Cir. 1998). The Richards complaint indicates that all but Utah Names Stephe n and Kelly Harmsen and were plaintiffs. See Case Nos. 03-4064, -4082, -4094, -4193, Aple’s Supl. App. vol. I, doc. 3 at 43-49. The Richards litigation addressed and rejected the Names’ conte ntion that “their disputes with Lloyd’s should be litigated in the United States despite contract clauses binding the parties to proceed in England under English law.” Richards , 135 F.3d at 1292. The Ninth Circuit held that to invalidate the choice of law provisions in the Lloyd’s General Undertakin g Agreement would result in an “unbounded” reach of the United States securitie s laws, and would hamper international commerce. Id. at 1293. Moreover, the court stated that “[t]he Names have recourse against [Lloyd’s] for fraud, br each of fiduciary duty, or negligent misrepresentation.” Id. at 1296. 11 (...continued)

securities laws, these too are precluded. See infra § II(B)(2)(a). -10- We reached a similar conclusion in Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 958 (10th Cir. 1992). We rejected th e plaintiff Name’s contentions and held that English law does not preclude [the Name] from pursu ing an action for fraud and we agree with the Defendants that the Llo yd’s Act does not grant statutory immunity for such claims. We have b een shown nothing to suggest that an English court would not be fair, and in fact, our courts have long recognized that the courts of Engl and are fair and neutral forums. Id. (internal citations omitted). As such, trial proceeded in England. Following trial, the English courts found Lloyds guilty of negligenc e with respect to their Names and awarded the Names damages totaling £1 billion. Pursuant to the Lloyds’ Act of 1982, however, the L loyds' Council enacted a by-law that caused the funds awarded to t he Names to be frozen. The Lloyds’ Council placed Lloyds as truste e of the trust funds. The appellate court of England upheld Lloyds’ rightto freeze the funds and appoint Lloyds as trustee under the Lloyds Act of 1982. Because the losses were widely spread throughout th e various syndicates, Lloyds developed a reorganization progr am in 1995-96 called Reconstruction and Renewal (“R & R”). This was a mandatory plan of reinsurance of all years of account prior t o 1993 into one reinsurance company called Equitas Reinsurance Ltd. The available syndicate assets were £9.9 billion; yet the premium needed for the reinsurance (by December 31, 1995) was £14.7 billio n. . . . Webb , 156 F. Supp. 2d at 636 (internal citations omitted).-11-

In implementing the reorganization plan, Lloyd’s re quired each Name to become a party to the Equitas reinsurance contract through an appointed, substituted agent, who signed the contract on behal f of the Name. The Equitas contract contained a “pay now, sue later” clause th at precluded Names from asserting claims they might have against Lloyd’s orothers as a set-off or counterclaim to their Equitas Premium. The Equitas contract also contained a “conclusive evidence” clause, which provided that, in the absence of manifest error, Lloyd’s determination of a Name’s Equitas pr emium was conclusive: The Equitas premium was mandatory and each Name was required to pay Equitas the amount shown on his statement. If, however, the Name signed the settlement agreement included in th e R & R package, the Name would be awarded a credit, which would result in a reduction in the amount he paid in. Id. The New Mexico and Utah Names were Names who neithe r signed the settlement agreement nor paid the assessment. When they did not pay, Lloyd’s used its by-law powers from the Lloyd’s Act of 1982 to appoint a Substitute Agent. This Substitute Agent was instructed to sig n the Equitas contract on behalf of the Names who refused to sign the Equitas settlement. Next, Lloyd’s began suing these non-settling Names. Lloyd’s paidEquitas the premium allegedly owed by the non-settling Names and receiv ed an assignment for the premium in exchange. In late 1996, Lloyd’s then su ed the New Mexico and Utah-12-

Names (and all remaining non-settling Names) for th e amounts paid on their behalf. Lloyd’s served a writ of summons on each of the NewMexico and Utah Names, notifying them of the commencement of the En glish action against them. Each of the Names filed an Acknowledgment of Servic e of Writ of Summons through their solicitors of record. Through the fi ling of the Acknowledgment, each Name appeared in the English Court and notifie d Lloyd’s of his or her intent to contest the claim. Although other Names activel y defended in the English litigation, the New Mexico and Utah Names did not s ubmit a notice of intention to defend, nor did they contest Lloyd’s claims. Those Names who did defend presented common objecti ons and defenses. They alleged that Lloyd’s lacked the regulatory aut hority to pursue certain aspects of the reorganization program, that they were entit led to rescind based on fraud in the inducement of their underwriting at Lloyd’s, th at they were entitled to litigate these claims of fraud, and that they were not bound by the Equitas reinsurance contract’s “pay now, sue later” and “conclusive evi dence” clauses. The English court found in favor of Lloyd’s and entered judgmen t against each of the defendants. See Webb , 156 F. Supp. 2d at 636 (citing English cases). Specifically, the court found that the “pay now, su e later” clause was enforceable and the Names could not assert a fraud claim as a set-off to the-13-

Equitas premium due. At the trial level, several h earings were held regarding the premium amounts and the trial court concluded that Lloyd’s produced sufficient documents justifying the premiums it claimed. Subs equently, each Name had the opportunity to present evidence that the calculatio n of the premium was “manifest error” pursuant to the Equitas contract. The courtruled against the Names with respect to the “manifest error” claims. See Webb , 156 F. Supp. 2d at 636. The English court did find, however, that Lloyd’s could be sued for fraud damages and that the Names were free to pursue sepa rate fraud claims against Lloyd’s. Approximately two-hundred non-settling Names brought a fraud case in England against Lloyd’s titled The Society of Lloyds v. Jaffray. The Honorable Justice Cresswell of the High Court of Justice of E ngland and Wales issued a 635-page decision in the Jaffray litigation in November 2000 dismissing sample Names’ claims for deceit and fraudulent misrepresen tation after a trial spanning nineteen weeks. See 2000 WL 1629463 (Q.B. 3 Nov. 3, 2000), aff’d, Ct. App. Civ. Div. 26 July 2002. In October 1999, while the Jaffraycase was pending, the court issued an order requiring any Names wishing to bring a fraud claim against Lloyd’s to join the Jaffrayaction. Lloyd’s sent a copy of a statement regard ing the terms of the Order to every Name who had not accepted Lloyd’s Re construction and Renewal settlement offer, including each of the New Mexico and Utah Names. See Case2 As of March 7, 2002 the U.S. dollar amounts forthe principal portions

of the judgments were, in the aggregate, as follows : Utah Names: $1,757,549.31 New Mexico Name: $ 262,124.54
See Case Nos. 03-4065, -4082, -4094, -4183, Aple’s Supl . App. vol. I, doc. 1, at 15-18 (Complaint filed Mar. 8, 2002); Case No. 02-2 301, Aplts’ App. vol. I, at 16 (Complaint filed Mar. 8, 2002). -14- No. 03-4002, vol. V, doc. 95 at 3. Neither the Uta h Names nor the New Mexico Name gave notice that they reserved the right to ad vance such allegations or otherwise become parties to the Jaffraylitigation. The English judgments against the Names were affirm ed on appeal. All appeals from the entry of the English judgments hav e been exhausted. Following these rulings, the English Court entered individual judgments in favor of Lloyd’s against each of the New Mexico and Utah Names. 2 On March 8, 2002 Lloyd’s filed this action to collect on the judgments.

II. DISCUSSION The Names raise two overarching arguments regarding the errors of the New Mexico and Utah district courts: (1) the courts erred when they determined that the English proceedings provided due process t o the Names; and (2) the courts erred when they found that the English cause of action did not violate the public policy of either New Mexico or Utah. They a lso challenge the district3 See e.g.; Soc’y of Lloyd’s v. Turner , 303 F.3d 325 (5th Cir. 2002)

(affirming summary judgment for Lloyd’s, under Unif orm Foreign Country Money-Judgment Recognition Act, on grounds that Eng lish courts provide due process and enforcement of English judgment is not repugnant to Texas public policy) ; Ashenden , 233 F.3d 473 (7th Cir. 2000) (affirming summary j udgment for Lloyd’s under Illinois Uniform Foreign Money-Judgme nt Recognition Act, explaining that existence of due process in English courts is a “question . . . not open to doubt”) ; Soc’y of Lloyd’s v. Mullin, 255 F. Supp. 2d 468, 476, 477 (E.D. Pa. 2003) (granting summary judgment for Lloyd’s un der Pennsylvania’s Uniform Foreign Money Judgment Act, noting that “recognitio n of the English Judgment would not so offend Pennsylvania’s notions of due p rocess grounds,” and that defendant’s argument “fails to meet the high thresh old for nonrecognition on public policy grounds”), aff’d, 96 Fed. Appx. 100 (3d Cir. May 5, 2004); Soc’y of Lloyd’s v. Grace , 718 N.Y.S.2d 327, 328 (N.Y. App. Div. 2000) (affi rming summary judgment for Lloyd’s, explaining that “sinc e the underlying English judgments are procedurally sound and do not violate any public policy of New York or the United States, they are entitled to comity”); Soc’y of Lloyd’s v. Baker, 673 A.2d 1336, 1338 (Me. 1996) (affirming summary j udgment for Lloyd’s and stating that the “application [of doctrine of comity] is a question of law that may be resolved by the court on a motion for a summary judgment”) (citations omitted). -15- courts’ denial of other motions, and two Utah Names challenge the calculation of post-judgment interest. At the outset, we note that the Names’ two principa l arguments have been raised unsuccessfully in various federal and state courts, by defendants from several states. 3 Although we affirm the grant of summary judgment to Lloyd’s for largely the same reasons as our sister circuits, ou r analyses of the defenses brought by the New Mexico and Utah Names are slight ly different because of the defenses the Names assert. Furthermore, Utah, unli ke the states whose law was applied by each court that has addressed the issue, has not adopted the Uniform-16-

Foreign Money-Judgment Recognition Act. Although the decisions of the other courts are highly persuasive, we must detour slight ly as we apply Utah’s comity analysis to the assertions of the Utah Names. Alth ough we empathize with the losses that the New Mexico Name and Utah Names have incurred, and we appreciate the sincerity of their arguments, and we find many of Lloyd’s acts to be distinctly distasteful, the agreements the Names signed and the applicable law require that we must affirm the thorough and well-r easoned orders of the district courts, with one slight exception.
A. Standard of Review We review the district court’s grant or denial of s ummary judgment de novo, applying the standard applied by the districtcourt pursuant to Federal Rule of Civil Procedure 56(c). Qwest Corp. v. City of Santa Fe, New Mexico, 380 F.3d 1258, 1264 (10th Cir. 2004). “Summary judgment is appropriate if ‘there is no genuine issue as to any material fact and [ ] the m oving party is entitled to judgment as a matter of law.’ We view the evidence in a light most favorable to the non-moving party.” Id. (quoting F ED
. R. C IV
. P. 56(c)).
B. New Mexico Law The New Mexico Name contends that the district court erred when it fail ed to consider the procedures the English courts actua lly employed, and instead relied on the general proposition that the English courts are fair and neutral. The-17-

New Mexico Name also asserts that the enforcement o f the English judgments violates New Mexico public policy. Applying New Me xico law, we hold that the district court appropriately assessed the English j udicial system and no violation of due process or New Mexico public policy occurred

.

1. Due Process concerns were met. The New Mexico Name claims the district court faile d to appreciate how its enforcement of the English judgment deprived him of his due process rights. While the Full Faith and Credit Clause applies to t he recognition and enforcement of judgments among sister states, it does not applyto judgments rendered in foreign countries. Allstate Ins. Co. v. Hague , 449 U.S. 302, 322 n.4 (1981) (Stevens, J., concurring in the judgment) (“The Ful l Faith and Credit Clause, of course, was inapplicable . . . because the law of aforeign nation, rather than of a sister State, was at issue. . . .”). The parties c ite no federal statute applicable to the enforcement of foreign court money judgments in U.S. courts, nor any applicable treaty. Instead, the recognition and en forcement of foreign judgments are governed by state law. See Transport Wiking Trader Schiffarhtsgesellschaft MBH & Co., Kommanditgesellschaft v. Navimpex Centrala Navala , 989 F.2d 572, 582 (2d Cir. 1993) (“We note that . . . the recogni tion of foreign judgments is governed by state law.”); see R ESTATEMENT (T HIRD ) OF THE F OREIGN RELATIONS L AW OF THE UNITED S TATES § 481 cmt. a (1987).-18-

New Mexico has adopted the Uniform Foreign Money-Ju dgment Recognition Act. See N.M. S TAT
. ANN . §§ 39-4B-1 to 39-4B-9 (1978). Pursuant to the Act, “[a] foreign judgment is not conclusive ” if the judgment was rendered under a system that does not provide impartial tribunals or procedures compatible with t he requirements of due process of law; and it “need not be recognized if:” (1) the defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient tim e to enable him to defend; (2) the judgment was obtained by fraud; (3) the cause of action on which the judgment is ba sed is repugnant to the public policy of this state . . . .
N. M. S TAT
. ANN . § 39-4B-5 (emphasis supplied). The New Mexico Name contends that the New Mexico di strict court conflated the widely recognized general fairness of the English system , with this particular judgment , which, in his view, conflicts with his constituti onal due process rights. Specifically, the New Mexico Name objects to (1) the English Courts’ enforcement of the “pay-now, sue-later” cla use, which prohibited him from raising certain defenses and counterclaims dur ing the English action; (2) the “conclusive evidence” clause, because it renders th e amount of the assessment determined by Lloyd’s conclusive absent manifest er ror, and thereby fails to meet due process requirements; and (3) the fact that the cumulative effect of both these clauses is that the New Mexico Name could not recei ve a pre-deprivation hearing,-19-

could not obtain discovery as to the amount of Lloy d’s claim, and could not challenge Lloyd’s calculation of the amount due. As to whether the contested clauses, taken separate ly or together, amounted to a forfeit of the Name’s due process rights, “[t] he question is not whether Lloyd’s accorded due process to the names, but whether the English courts did. . . . Stated differently, the courts held that the nam es had waived their procedural rights in advance . . . .” Ashenden , 233 F.3d at 479 (emphasis supplied). Waiver of procedural rights in advance is clearly permitted, see e.g., D.H. Overmyer Co. v. Frick Co. , 405 U.S. 174, 185 (1972) (“The due process rights to notice and hearing prior to a civil judgment are subject to waiver.”). Moreover, given the New Mexico Name’s “utter failure to participate in any stage of any of the English proceedings, ‘we not only look with skeptic ism, but we flatly reject the due process complaint of a party who was given, and . . . waived, the opportunity of making the adequate presentation in the English Court.’” Turner , 303 F.3d at 331 n.20 (quoting British Midland Airways Ltd. v. Int’l Travel Inc. , 497 F.2d 869, 871 (9th Cir. 1974) (internal quotation marks omitt ed)). Although the New Mexico Name would prefer to have u s focus on this particular judgment , rather than the English system , at this stage of these matters, we are not permitted to do so. See N.M. S TAT
. ANN . § 39-4B-5 (indicating that to determine “conclusive[ness]” of a “foreign judgment ,” a court examines the-20-

foreign country’s “system” and whether it maintains “procedures compatible with the requirements of due process of law”). The pro cedures the English courts afford need not be identical to ours, they must onl y be compatible in that they do not offend the notion of basic fairness. See Turner , 303 F.3d at 331 (“the courts of England are fair and neutral forums”) (footnoted citation omitted); Hilton v. Guyot , 159 U.S. 113, 205 (1895) (“[W]e are not prepared to hold that the fact that the [foreign] procedure . . . differed from that of our own courts is, of itself, a sufficient ground for impeaching the foreign judgment.”); UNIFORM F OREIGN -M ONEY J UDGMENTS RECOGNITION A CT § 4 cmt. (“[A] mere difference in the procedural system is not a sufficient basis fornon-recognition. A case of serious injustice must be involved.”);1 R ESTATEMENT (T HIRD ) OF F OREIGN RELATIONS § 482 cmt. b (1987) (“A court asked to recognize orenforce the judgment of a foreign court must satisfy itself of the essential fairness of the judicial system under which the judgment was render ed.”). And when we look to the basic fairness of the syste m, the answer is clear: “[O]ur courts have long recognized that the courts of England are fair and neutral forums.” Riley , 969 F.2d at 958 (collecting cases); see also Haynsworth, 121 F.3d at 967 (“This is particularly so in the case o f England, a forum that American courts repeatedly have recognized to be fa ir and impartial.”). The-21-

Seventh Circuit similarly lauded the English system ’s regard for due process in its highly persuasive opinion involving nearly identica l claims: Any suggestion that [the English] system of courts does not provide impartial tribunals or procedures compatible with t he requirements of due process of law borders on the risible. [T]he c ourts of England are fair and neutral forums. The origins of our conceptof due process of law are English . . . . and the English courts . . . are highly regarded for impartiality, professionalism, and scrupulous regar d for procedural rights. Ashenden , 233 F.3d at 476 (internal citations and quotations omitted). We agree with the Seventh Circuit’s reasoning and h old that given the structure of the English system, which is substanti ally similar to our own, the New Mexico Name’s suggestion that the English courtsystem does not provide tribunals compatible with due process is untenable. See also Webb , 156 F. Supp. 2d. at 640.

2. New Mexico’s Public Policies were not violated. The New Mexico Name also challenges the enforcementof the English judgments as a violation of New Mexico’s public pol icy. First, he argues that Lloyd’s violated the New Mexico Securities Act thro ugh its solicitation of unregistered securities and by making fraudulent re presentations. Second, he asserts that the Equitas contract is both procedura lly and substantively unconscionable. Third, the New Mexico Name contend s that the Equitas contract amounts to a contract of adhesion. Fourth, he asse rts the Equitas contract is a-22-

“cognovit note,” which both violates New Mexico pub lic policy and New Mexico law. Fifth, he maintains that the Equitas contractis illusory. Finally, he contends the New Mexico Unfair Practices Act bars recognitio n of the Equitas contract. Even if we assume the shaky premises of these assertions to be true (that Lloyd’s made material misrepresentations and those misrepresentations would allow rescission under New Mexico law), we reject e ach of these claims for one overriding reason: English law as applied here doe s not violate New Mexico’s public policy. As we iterate throughout the opinio n, “[t]he view that every foreign forum’s remedies must duplicate those avail able under American law would render all forum selection clauses worthless. . . .” Haynsworth , 121 F.3d at 969; see also Riley , 969 F.2d at 958. Furthermore, we reiterate that we must focus on the “cause of action” and the “claim for relief” underlying the English Judgm ent, not the differences in the bodies of law, because slight differences between E ngland’s and New Mexico’s laws do not trigger the public policy exception. N.M. S TAT
. ANN § 39-4B-5(b)(3);
see Turner , 303 F.3d at 332-33. Neither a breach of contractaction nor a claim for money damages is repugnant to New Mexico public policy.

a. The State Agreement trumps the New Mexico Securi ties Act. The New Mexico Name emphasizes that the New Mexico Securities Act embodies a public policy to protect New Mexico, and New Mexicans, and that the-23-

contract on which Lloyd’s sued violated the state securities act. He relies heavily upon the declaration of Michael J. Vargon, Deputy D irector of the Securities Division in the New Mexico Department of Regulation and Licensing. In an affidavit, Mr. Vargon states that after receiving v arious complaints from New Mexicans regarding Lloyd’s solicitations to become Names, the Division concluded that the interest in the Names program wa s an investment contract and therefore a security, subject to the New Mexico Sec urities Act. Lloyd’s failed to register these securities, and furthermore, “the in formation available to the Division strongly suggest[ed] fraud and misrepresentation in the inducement and continuing misrepresentation made to Names . . . .” Case No. 02-2301, Aplts’ App. vol. I, at 325. In response, Lloyd’s points to the July 1996 State Agreement between Lloyd’s and participating state securities regulato rs, including the Acting Director of the New Mexico Securities Division. The State A greement recognizes that “certain State Securities Regulators have asserted the activities of Lloyd’s . . . fall within the scope of their regulatory jurisdiction” and that “the activities of Lloyd’s may have violated laws subject to their enforcement authority.” Id. vol. II, at 747. The State Agreement also indicates that “Lloyd’s denies it has violated any U.S. laws and denies it is subject to the juris diction of the States Securities Regulators with regard to the issues raised.” Id.-24-

The State Agreement appears to have been a necessary precursor to the enactment of the Reconstruction and Renewal plan. Under the State Agreement, Lloyd’s promised to allocate credits to qualified S tate Names, in exchange for which the State Securities Regulators agreed to tak e steps necessary to terminate all proceedings and investigations pending against Lloyd’s. In addition, the State Securities Regulators agreed not to “assist any pri vate person or entity who seeks to pursue any action against Lloyd’s . . . .” Id. vol. II, at 757. Because the Acting Director of the New Mexico Securities Division is asignatory to the State Agreement, and Mr. Vargon’s declaration conflicts w ith the State Agreement, we reject the New Mexico Name’s assertions based upon it. Furthermore, the New Mexico Name offers no explanation for this anomaly. Moreover, as explained above, the New Mexico Name a greed in the General Undertaking Agreement that English law, notNew Mexico law, would govern any disputes between Lloyd’s and him. The c hoice of law and choice of forum clause are not at issue in this litigation, a nd to enforce the New Mexico securities laws in this context would be inappropriate. See Riley, 969 F.2d at 958 (approving forum selection clause of General Undertaking Agreement); Richards , 135 F.3d at 1292 (holding the same as to the majori ty of the defendant Names in this case).-25- b. The English Judgments were not based on an uncon scionable
contract. Next, the New Mexico Name invites us to examine the underlying contractual dispute through his contention that the Equitas contract is both procedurally and substantively unconscionable underNew Mexico law. Procedural unconscionability is determined “by exam ining the circumstances surrounding the contract formation, including the p articular party’s ability to understand the terms of the contact and the relativ e bargaining power of the parties.” Guthmann v. LaVida Llena, 709 P.2d 675, 679 (N.M. 1985). “Factors to be considered include the use of sharp practices orhigh pressure tactics and the relative education, sophistication or wealth of the parties, as well as the relative scarcity of the subject matter of the contract.” Id. The New Mexico Name is a highly sophisticated inves tor who had to pass a “means” test and was required to post large sums of money as security for the unlimited liability that he knowingly undertook. U nquestionably Lloyd’s presented no high pressure tactics: each Name was a fforded the opportunity to read the General Undertaking Agreement in its entir ety, and to fully understand the implications of its terms . See id. at 680. The Equitas contract was not a new investment decision; it was the implementation of s pecific provisions to address the unlimited liability undertaken by all Names, pu rsuant to the General-26-

Undertaking Agreement’s broad powers. There is no basis for concluding that there was any procedural unconscionability in the c ontracts on which the judgments were based. The New Mexico Name’s arguments regarding substanti ve unconscionability are equally unavailing. “Substan tive unconscionability is concerned with contract terms that are illegal, con trary to public policy, or grossly unfair.” Id. at 679. When terms are unreasonably favorable to one party a contract may be held to be substantively unconscionable. Id. at 680. “The terms are to be considered in the light of the general co mmercial background and the commercial needs of the particular trade or case.” Id. (internal quotation marks omitted). Here, despite the apparently massive los ses Lloyd’s was absorbing, the terms of the General Undertaking Agreement were notso grossly unfair to the Names when the Agreement was formed. Approximatelyninety-five percent of the Names accepted the subsequent Equitas contract, and forty-seven U.S. states signed the State Agreement to facilitate the Recons truction and Renewal plan. Under these circumstances, we cannot say these were terms that “no man in his senses and not under delusion would make on the one hand, and . . . no honest and fair man would accept on the other.” Id. (internal quotation marks omitted). c. The English Judgments were not based on an adhesion contract

.-27-

The New Mexico Supreme Court’s Guthmann holding also undergirds our rejection of the New Mexico Name’s contention that the Equitas contract is an adhesion contract that violates New Mexico’s public policy. Three elements must be satisfied before an adhesion contract may be found. First, the agreement must occur in the form of a standardized contract prepared or adopted by one party for the a cceptance of the other. Second, the party proffering the standardiz ed contract must enjoy a superior bargaining position because the wea ker party virtually cannot avoid doing business under the particular co ntract terms. Finally, the contract must be offered to the weakerparty on a take-it-or-leave-it basis, without opportunity for bargaining. Id. at 678 (internal citations omitted). Here, the se cond and third elements are not met: the New Mexico Name was not in a weaker bargai ning position nor did Lloyd’s compel his investment. d. The English Judgments were not based on a “cogno vit note.” Next, the New Mexico Name contends that the General Undertaking Agreement and Equitas contract amount to a cognovitnote, which is an ancient legal device “signed by a defendant in an action ac tually commenced confessing the plaintiff’s demand to be just, and empowering t he plaintiff to sign judgment against him in default of his paying the plaintiff the sum due to him within the time mentioned in the cognovit.” B LACK ’ S L AW D ICTIONARY (8th ed. 2004); see Overmyer , 405 U.S. at 176. Thus the debtor agrees in advan ce to the entry of a judgment against him without notice or hearing. Ne w Mexico public policy and New Mexico law prohibit cognovits and condemn judgm ents obtained through-28-

cognovits, enforcing them only where a defendant “v oluntarily, knowingly and intelligently” waives his or her rights. As establ ished above, the New Mexico Name did “voluntarily, knowingly and intelligently” waive his rights, in addition to receiving notice and being provided an opportuni ty to defend prior to the entry of the judgments. We have rejected the perceived l ack of due process argument above, and consequently, this argument is foreclose d. e. The English Judgments were not based on illusory contracts

. Next, the New Mexico Name maintains that Lloyd’s ju dgments are repugnant to New Mexico’s public policy because the y are based on illusory contracts. Specifically, he contends that the Gene ral Undertaking Agreement and the Equitas contract lack consideration. The Gener al Undertaking Agreement was part of the overall investment agreement between th e Names and Lloyd’s. The Agreement certainly placed obligations upon Lloyd’s : when underwriting or investment profits were made, Lloyd’s had to distri bute to each Name his or her proper share. Likewise, the Equitas contract was s upported by consideration: this reinsurance contract helped Lloyd’s survive and pro tected the Names from unlimited personal liability. The complaints abou t how Lloyd’s may have met, or failed to meet, its obligations are another matter, which have also been considered by the English courts and in the Jaffray litigation.

f. The New Mexico Unfair Practices Act does not app ly.-29-

Finally, the New Mexico Name contends that the enfo rcement of the English judgment violates New Mexico’s public polic y because the contracts violated the New Mexico Unfair Practice Act, N.M. Stat. Ann. § 57-12-1 et seq. The Unfair Practice Act defines an unconscionable t rade practice as any act or practice in connection with the sale for offering f or sale of any goods or services that takes advantage of the lack of knowledge, abil ity, experience, or capacity of a person to a grossly unfair degree or results in a g ross disparity between the value received by a person and the price paid. See id. § 57-12-2(E). Neither party addresses whether the New Mexico Unfair Practice Ac t encompasses an action involving the interests of the New Mexico Name in underwriting insurance. See,
e.g., Russell v. Dean Witter Reynolds, Inc. , 510 A.2d 972, 977-78 (Conn. 1986) (“[Connecticut Unfair Trade Practice Act] does not apply to deceptive practices in the purchase and sale of securities” because “Conne cticut has long separated regulation of the purchase and sale of securities f rom the regulation of unfair trade practices in other industries.”); Simpson v. Grimes, 849 So. 2d 740, 745-746 (La. Ct. App. 2003) (“Although the plaintiffs alleg e unfair trade practices pursuant to [the Louisiana Unfair Trade Practices A ct], this type of action under the . . . Unfair Trade Practices Act has been found inapplicable to cases involving securities.”).-30-

To the extent the New Mexico Name asserts that Lloy d’s took unreasonable advantage of him through its misrepresentation rega rding asbestos claims, the English courts have considered and rejected such cl aims. As above, we cannot allow the New Mexico Name to relitigate the underly ing cause of action under New Mexico law, despite his attempt to frame the ac tion as violating New Mexico public policy.
C. Utah Law Turning to the defenses of the Utah Names, we hold that these defenses fail for similar reasons. The Utah Names first assert t hat the district court improperly analyzed Utah’s principles of comity when it determ ined that the process underlying the English judgments comported with con stitutional norms of due process and of Utah public policy. Specifically, t he Utah Names contend they did not have a full and fair trial in England, because they were bound by unlawful contracts, prohibited from asserting affirmative de fenses, and prohibited from discovering or presenting evidence to refute the ex istence of the amount of liability. Utah Names Stephen and Kelly Harmsen ra ise the related argument that Lloyd’s made material misrepresentations when it in duced them to become Names in the Lloyd’s market by failing to disclose inform ation about potential asbestos and toxic tort liability. As a result, neither the forum selection clause nor the-31-

“pay-now, sue-later” clause should be held enforcea ble as matters of public policy. The Utah Names also argue that they were entitled t o discovery, and that the district court should have certified certain qu estions of law to the Utah Supreme Court. Utah Name Wallace Bennett contends that the district court lacked diversity jurisdiction, and that the enforce ment of the judgment violates Utah’s securities laws. Finally, Utah Names Stephe n and Kelly Harmsen also challenge the district court’s imposition of eight percent per annum post-judgment interest. With the exception of the post-judgment interest argument, we reject each of the Utah Names’ contentions.

1. Principles of comity apply in this case. Unlike New Mexico, Utah has not adopted the Uniform Foreign-Money Judgment Recognition Act. The Utah Supreme Court h as indicated that a foreign country judgment can be enforced in Utah courts “un der principles of comity.”
Mori v. Mori , 931 P.2d 854, 856 (Utah 1997) (citing Hilton , 159 U.S. 113). Under the Supreme Court’s holding in Hilton , the principles of comity require recognition of a foreign judgment if (1) there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, (2) conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, (3) under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of i ts own country and those of other countries,-32-

(4) there is nothing to show either prejudice in t he court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or (5) no other special reason exists indicating why t he comity of this nation should not allow it full effect. Hilton , 159 U.S. at 202 (emphasis added). According to the Utah Names, and in seeming contrast to Hilton , Utah’s comity requires an analysis of the fairness of the English judgment , not merely of the English judicial system . The judgment here was based upon the Utah Names’ signing the General Undertaking, which is a standar dized contract between Lloyd’s and the individual Names. According to the Utah Names, their assent to the General Undertaking resulted in their unknowing waiver of future due process rights in the Equitas contract. Utah law provides that questions regarding the vali dity of a foreign judgment “should be tested by the law of the jurisd iction where the judgment was rendered.” Rocky Mtn. Claim Staking v. Frandsen , 884 P.2d 1299, 1300-01 (Utah. Ct. App. 1994). We have no choice under Hilton and Rocky Mountain but to examine the entirety of the foreign judicial system , and not the particularity of individual judgments. See also 1 R ESTATEMENT (T HIRD ) OF F OREIGN RELATIONS § 482 cmt. b (1987) (“A court asked to recognize orenforce the judgment of a foreign court must satisfy itself of the essential fairness of the judicial system under which the judgment was rendered.”). Like all the other circuits that have-33-

examined the question, we have already determined t hat the English judicial system is procedurally above reproach. See, e.g. Ashenden , 233 F.3d at 478 (“Even if the [defendants’] approach is valid–and we want to emphasize our belief that it is not–it cannot possibly avail the defendants here unless they are right that the approach requires subjecting the for eign proceeding to the specifics of the American doctrine of due process.”); see also Hilton, 159 U.S. at 205 (“[W]e are not prepared to hold that the fact that the [foreign] procedure . . . differed from that of our own courts is, of itself, a sufficient ground for impeaching the foreign judgment.”). Here, for the sake of completeness, the district court l ooked to the underlying decisions rendered by the English courts that have considered and rejected each of the Utah Names’ challenges to the “pay-now, sue-later” and “conclusive evidence” clauses. Case No. 02-2301, Aple’s Supl. App. at 230 (Utah Dist. Ct. Order filed Nov. 12, 2002). The “p ay-now, sue-later” provision left the Names free to pursue claims of fraud again st Lloyd’s in a separate proceeding, which many Names pursued unsuccessfullyin the Jaffraylitigation. See id. (citing Soc’y of Lloyd’s v. Wilkinson & Others , at 17, 21 (Q.B. 23 Apr. 1997), aff’d, Soc’y of Lloyd’s v. Lyon, Leighs & Wilkinso n (C.A. 31 July 1997) (Case Nos

. 03-4065, -4082, -4094, -4183, Aple’s Supl. App. vo l. III, doc. 4, ex. J, at 682)).-34-

The district court observed that the English courts held that the “conclusive evidence” clause was “not an unusual type of clause and [was] in principle appropriate to [the] contract.” Case No. 02-2301, Aple’s Supl. App. at 230 (quoting Soc’y of Lloyd’s v. Fraser & Others , at 27 (C.A. 31 July 1998) (Case
Nos

. 03-4065, -4082, -4094, -4183, Aple’s Supl. App. vo l. III, doc. 4, ex. J, at 707)). Furthermore, the English courts “consideredand rejected the argument that the Names should not be bound by the Equitas c ontract.” Case No. 02-2301, Aple’s Supl. App. at 230 (citing Soc’y of Lloyd’s v. Fitzgerald, Leigh and Others , (Q.B. 20 Feb. 1997), aff'd, Soc’y of Lloyd’s v. Lyon, Leighs & Wilkinson (C.A. 31 July 1997) (Case Nos

. 03-4065, -4082, -4094, -4183, Aple’s Supp, App. vo l. III, doc. 4, ex. J, at 622)). We must reject the Utah Names’ contentions that the y were bound by unlawful contracts, that they were prohibited from asserting affirmative defenses, and that they were prohibited from discovering or p resenting evidence to refute the existence of amount or liability. We therefore agree with the district court that the Utah Names were given a full and fair oppo rtunity to litigate their claims before the English courts. Similarly, we must reject the defenses mounted by t he Harmsens. The English court considered and rejected the allegatio ns involving material-35-

misrepresentations made by Lloyd’s in connection wi th the solicitation of investment by potential Names.
2. The District Court did not Abuse its Discretion when it Denied Discovery. The Utah Names sought discovery regarding (1) information about the basis for the amount of the alleged liability set forth i n the English judgments; (2) information relating to Lloyd’s appointment of the substitute agent and other details regarding the formation of the Equitas cont ract; and (3) information concerning Lloyd’s contractual intent in entering i nto the General Undertaking Agreement. Discovery rulings are generally within the sound di scretion of the trial court, and we review only for abuse of discretion. GWN Petroleum Corp. v. OK-Tex Oil & Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993). The discovery sought by the Utah Names was unnecessary to the dis trict court’s grant of summary judgment in favor of Lloyd’s. To have gran ted the discovery would have resulted in a relitigation of the underlying G eneral Undertaking Agreement and Equitas contract, both of which have been consi dered and litigated before the English courts. After reviewing the record, we fin d no abuse of discretion regarding the rulings on these motions. 3. Certification of Questions of State Law-36-

The Utah Names suggest that (1) the district court erred when it refused to certify certain questions to the Utah Supreme Courtand (2) we should sua sponte certify the questions of whether the English court met the “open courts provision” of the Utah Constitution. We reject each contentio n and hold that the district court did not abuse its discretion.

a. District court’s denial of the motion was not an abuse of
discretion. We review the district court’s decision not to cert ify questions of state law for abuse of discretion. Armijo v. Ex Cam, Inc ., 843 F.2d 406, 407 (10th Cir. 1988). Utah’s open courts provision requires: All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have reme dy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or d efending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.
U TAH C ONST . art. I, § 11. In general, open courts provisions in Utah serve tw o principal purposes: “First, they were intended to help establish an ind ependent foundation for the judiciary as an institution . . . . Second, open c ourts or remedies clauses were intended to grant individuals rights to a judicial remedy . . . .” Laney v. Fairview City , 57 P.3d 1007, 1016 (Utah 2002). The Names attemp t to invoke the open-37-

courts provisions in connection with their alleged waiver of their at the timeunknown due process rights. While certification is appropriate “where the legal question at issue is novel and the applicable state law is unsettled,” Allstate Ins. Co. v. Brown , 920 F.2d 664, 667 (10th Cir. 1990), it is never compelled. See Lehman Bros. v. Schein , 416 U.S. 386, 390-91 (1974). “[U]nder the diversity statutes the federal courts have the duty to decide questions of state law even if d ifficult or uncertain.” Copier v. Smith & Wesson Corp. , 138 F.3d 833, 838 (10th Cir. 1998) (citing Meredith v.
Winter Haven , 320 U.S. 228, 235 (1943)). There is little casel aw suggesting that English law or any foreign law somehow abrogates th e Utah Constitution. We have established there is no due process violation and that the Names waived their procedural rights in advance. See Overmyer, 405 U.S. at 185. The district court did not abuse its discretion when it rejected the U tah Names’ motion to certify.

b. Sua sponte certification is unnecessary here. We next consider whether we should certify this que stion to the Utah Supreme Court directly. Utah Rule of Appellate Pro cedure 41(a) states: The Utah Supreme Court may answer a question of Uta h law certified to it by a court of the United States when requeste d to do so by such certifying court acting in accordance with the prov isions of this rule if the state of the law of Utah applicable to a procee ding before the certifying court is uncertain.-38-

Thus, there is a procedural mechanism for certification to the state court that we may consider using. However, we note that a necess ary but not controlling component is the difficulty in determining the loca l law. Cf. Lehman Bros. , 416 U.S. 390 (“[T]he mere difficulty in ascertaining lo cal law is no excuse for remitting the parties to a state tribunal for the s tart of another lawsuit.”). Lehman Brothers further noted that “[w]e do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory.” Id . at 390-91. While no Utah court has rendered a decision on the precise issue in question, our analysis above establishes that there is no unusual difficulty in deciding the state law question or a likelihood that Lloyd’s theory of liability would be adopted by the Utah courts. Thus, given t he above conclusions, certification is unnecessary. 4. Outstanding Issues Presented by Utah Name Mr. Be nnett Mr. Bennett maintains there is not complete diversi ty between the parties, and he challenges the district court’s enforcement of the English judgments as a violation of Utah securities law. He also raises d efenses we have previously rejected. We address each defense briefly.-39- a . Diversity jurisdiction is present. Mr. Bennett contends that Lloyd’s is not a corporat ion, but is rather more like an association, which adopts the citizenship o f each of its syndicate investment members. “Lloyd’s and Equitas are merel y agents for the syndicates, collecting cash calls from syndicate investor Names to pay off the liabilities arising from syndicate insurance policies.” Bennett Rep. Br. at 5. Under this interpretation, “Lloyd’s attempt to claim federal d iversity jurisdiction is a sham” and there is no federal subject matter jurisdiction

. Id. We must reject Mr. Bennett’s assertions. Early on, Lloyd’s may have been a form of an unincorporated association, but under the Lloyd’s Act of 1871, the company was incorporated. Although we agree that L loyd’s is not a corporation within the traditional sense of the word, see Ashenden v. Lloyd’s of London , 934 F. Supp. 992, 998-99 (N.D. Ill.1996), there is no c hallenge to or question regarding Lloyd’s place of incorporation (it is dul y incorporated under the laws of England). Similarly it maintains its principal pla ce of business in London, England. These facts are unchallenged, and compris e the weightiest part of our inquiry. See id. (noting that the most important consideration is S upreme Court precedent “indicating that the citizenship of busin ess entities must be determined by the simple fact of legal incorporation or the la ck thereof, rather than the nature or attributes of the entity in question.”). We th us hold that the jurisdiction is-40-

proper pursuant to 28 U.S.C. § 1332(a)(2). Equitas Reinsurance, Limited (the assignor of Lloyd’s underlying claims against the N ames) is also a duly incorporated English company formed under the laws of England, and Mr. Bennett’s similar allegations against Equitas must also fail.

b. The Utah Securities Act offers Mr. Bennett no re lief. Mr. Bennett points to the Utah Securities Acts’ “an ti-waiver” provision as a bar to the enforcement of the English judgments. T he anti-waiver provision declares that “a condition, stipulation or provisio n binding a person acquiring a security to waive compliance with the chapter or ru le hereunder is void.” U TAH C ODE ANN . § 61-22(9). We note that the anti-waiver provisions of the Secu rities Acts of 1933 and 1934 are substantially the same as those found in t he Utah statute. See 15 U.S.C. § 77n (1982) (“Any condition, stipulation, or provi sion binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission s hall be void.”); 15 U.S.C. § 78cc(a) (1982) (“Any condition, stipulation, or pro vision binding any person to waive compliance with any provision of this chapteror of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.”). The district court determined that our holding in Rileyprecluded enforcement of state as well as federal securities statutes. See Riley , 969 F.2d at-41-

956. In Riley , the plaintiff claimed that Lloyd’s engaged in the offer and sale of unregistered securities and made untrue statements of material fact and material omissions in connection with the sale of securities , violating both federal and Colorado’s state securities laws. By enforcing the General Undertaking Agreement’s forum selection clause requiring the ap plication of English law, we did not deprive Mr. Riley of his day in court, but rather instructed Mr. Riley to “structure his case differently than if proceeding in federal district court.” Id. at 958. Thus, we cannot accept Mr. Bennett’s contenti ons and note that, as in the Ninth Circuit’s decision in Richards (litigation to which Mr. Bennett was a party), “[w]e disagree with the dramatic assertion that the available English remedies are not adequate substitutes for the firm shields and f inely honed swords provided by American securities law.” Richards , 135 F.3d at 1296.

c. Mr. Bennett’s remaining defenses are unavailing. Mr. Bennett’s remaining claims duplicate the Utah N ames’ arguments, or are without merit. For example, he challenges whet her the General Undertaking Agreement can be binding upon him. He suggests that Lloyd’s engaged in breaches of fiduciary duty, concealment and materia l misrepresentations because the General Undertaking does not warn a committing investor that he or she might later be made subject to an entirely different unde rtaking. Mr. Bennett also-42-

contends that the district court erred in its appli cation of Hilton . For the reasons given above, we reject all of Mr. Bennett’s defense s. 5. Post-Judgment Interest Finally, Utah Names Stephen and Kelly Harmsen chall enge the district court’s application of an eight percent per annum p ost-judgment interest rate. They argue that once the federal district court enforced the judgments, the thenapplicable interest rate of 1.16% was applicable. We review de novo the district court’s interpretati on and application of 28 U.S.C. § 1961. O’Tool v. Genmar Holdings, Inc. , 387 F.3d 1188, 1207 (10th Cir. 2004). Interest shall be allowed on any money judgment in a civil case recovered in a district court. . . . Such interest shall be c alculated from the date of the entry of the judgment at a rate equ al to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, f or the calendar week preceding. 28 U.S.C. § 1961(a). “This section shall not be co nstrued to affect the interest on any judgment of any court not specified in this sec tion.” Id. § 1961(c)(4). The district court reasoned that the English court is not a court specified by § 1961, and because the Names agreed that English law would govern the litigation, the post-judgment interest rate should be determined by English law, which would be 8%. Lloyd’s argues that because the Names agreed to be bound by English law, English post-judgment interest appl ies. Furthermore, Lloyd’s-43-

rejects the Harmsens’ suggestion that the English j udgments merge into the U.S. judgments. We disagree with such reasoning. First, we acknowl edge that parties may contract to, and agree upon, a post-judgment intere st at a rate other than that specified in § 1961. See Westinghouse Credit Corp. v. D’Urso , 371 F.3d 96, 101 (2d Cir. 2004) (“We agree that parties may by contract set a post-judgment rate at which interest shall be payable.”). However, agree ing to be bound by English law does not amount to agreeing to a particular post-ju dgment interest rate. The general rule under federal and Utah law is that “wh en a valid and final judgment for the payment of money is rendered, the original claim is extinguished, and a new cause of action on the judgment is substituted for it. In such a case, the original claim loses its character and identity and is merged in the judgment.” See Carte Blanche (Singapore) PTE., Ltd. v. Carte Blanc he Int’l, Ltd. , 888 F.2d 260, 269 (2d Cir. 1989); Yergensen v. Ford, 402 P.2d 696, 697 (Utah 1965). “If parties want to override the general rule on mergerand specify a post-judgment interest rate, they must express such intent throug h clear, unambiguous and unequivocal language.” Westinghouse Credit Corp. , 371 F.3d at 102 (internal quotation omitted). Such language is not present i n the agreements before us. Second, the policies behind § 1961(a) support the application of the U.S. interest rate. “The purpose of postjudgment intere st is to compensate the-44-

successful plaintiff for being deprived of compensation for the loss from the time between the ascertainment of the [judgment] and the payment by the defendant.” Kaiser Aluminum & Chem. Corp. v. Bonjorno , 494 U.S. 827, 835-36 (1990) (quotations and alterations omitted). It preserves the value of the award as originally decided, affording neither party a benef it. [T]he universal application of Section 1961 to all types of claims makes for logical uniformity. Once a claim is reduced to judgment, the original claim is extinguished and merged into the judgment; and a new claim, called a judgment debt, arises. See RESTATEMENT OF J UDGMENTS § 47 (1942). A single rule should govern interest on any such debt, the nature of the original claim having become irreleva nt under the doctrine of merger. Kotsopoulos v. Asturia Shipping Co., S.A. , 467 F.2d 91, 95 (2d Cir. 1972). Thus, the federal rate reflects the economic condit ions at the time the district court rendered its judgment, and, despite the disparity between the rates, we must apply § 1961(a), so interest accrues under the federal rate from the time the federal district court entered an order enforci ng the judgment. See Carte Blanche, 888 F.2d at 268 (noting the provisions of § 1961(a ) are mandatory). We note that the application of § 1961 also foster s stability and certainty in international commercial transactions. Moreover, i t provides “make whole” relief without overcompensating Lloyd’s. Lloyd’s derives various benefits from utilizing the federal court system to procure the e xecution and enforcement of its-45-

judgments. In return, Lloyd’s is subject to the fe deral formula for determining an equitable post-judgment interest. Finally, as to the district court’s concerns with t he limitations provided in § 1961(c)(4), we agree that the U.S. post-judgment in terest rate applies to the district court’s judgments, but not to the English court’s judgments. The U.S. post-judgment rate should apply as of the date of t he entry of the judgment in the U.S. district court. Here, the eight percent figure appears to have been calculated in 1993, five years before the entry of the English judgment. See Case Nos. 03-4065, -4082, - 4064, -4183, Aple’s Supl. App. vol. IV, at 995-96 ( Section 17 of the Judgments Act of 1838 as amended by Statutory Instrument 1993 564 (L.2) and provision of the Civil Procedure Rule 1998). The federal rate i s calculated on a more current weekly basis, and better reflects the value of the award once entered in the United
States. Therefore, on remand, we instruct the Utah distric t court to clarify that the English post-judgment rate applies to the Harmsens’ judgments from the entry of the English judgment (March 11, 1998) until the ent ry of the U.S. judgment enforcing the English judgment (November 2002) and that the federal rate, calculated pursuant to § 1961, applies thereafter.-46- III. CONCLUSION There is no question that the New Mexico and Utah N ames suffered substantial losses after investing in what had been , for three centuries, a wellregarded institution. There is also no question th at Lloyd’s was not forthcoming with all the information regarding its substantial financial losses. However, the English courts thoroughly and fairly considered and examined the plight of the Names before entering judgments against them. We m ust respect the ample process afforded by the English system of justice. We affirm the New Mexico and Utah district courts’ grants of summary judgment to Lloyd’s. We reverse and remand with re spect to the post-judgment interest as applied to the Harmsens’ judgment, with instructions to recalculate the post-judgment interest in accordance with this opin ion.