UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JP MORGAN CHASE BANK, N.A., )

)

Plaintiff, )

)

v. ) No. 02 C 6240

)

PT INDAH KIAT PULP AND PAPER ) Judge James F. Holderman

CORPORATION Tbk, a corporation duly )

organized under the laws of the Republic of ) Magistrate Judge Geraldine Soat Brown

Indonesia; PT PABRIK KERTAS TJIWI ) 

KIMIA Tbk, a corporation duly organized ) 

under the laws of the Republic of Indonesia; )

and ASIA PULP AND PAPER COMPANY, ) 

LTD., a corporation duly organized under )

the laws of Singapore, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Geraldine Soat Brown, United States Magistrate Judge

This matter comes before the court on the motion by defendants Asia Pulp and Paper

Company, Ltd. (“Asia Pulp”), PT Indah Kiat Pulp and Paper Corporation Tbk (“PT Indah”), and PT

Pabrik Kertas Tjiwi Kimia Tbk (“PT Pabrik”) (collectively, “defendants”) to stay enforcement of

citations to discover assets that plaintiff JP Morgan Chase Bank, NA (“JP Morgan”) directed to

them. [Dkt 330] Defendants assert that an injunction entered by an Indonesian court temporarily 1

prohibits them from complying with the citations. (Id.) After weighing the relevant considerations,

 JP Morgan is the successor in interest to the original plaintiff in this case, Bank One,

1

N.A.

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the court concludes that it need not and should not stay its own proceedings. Therefore, the motion

to stay is denied, and defendants are ordered to comply with the citations.

Background

This case is currently in the post-judgment collection phase. Summary judgment was

previously granted against all defendants, and the District Judge entered judgment on September 13,

2010, awarding damages to JP Morgan in an amount of $32,156,331.55 against PT Indah,

$21,340,006.22 against PT Pabrik, as well as the total $53,496,337.77 against Asia Pulp as a

guarantor. (Orders, Oct. 14, 2009, Apr. 21, 2010, Sept. 13, 2010) [Dkt 257, 265, 296]; (Judm.)[Dkt

297.] 

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On October 19, 2010, JP Morgan issued citations to discover assets to all defendants. (Defs.’

Mot., Ex. C.) The citations require defendants to produce all financial records regarding their 3

assets, including but not limited to the following: bank account records for the past 12 months,

accounts receivable records, payroll records, income tax returns, transfers of assets to third parties,

and financial statements. (Id.) The citations further require corporate representatives of the

defendants to appear for citation examinations. (Id.) Defendants seek to stay enforcement of the

citations pursuant to a “Provisional Injunction” entered by an Indonesian court, which, they assert,

prevents them from responding to the citations in this case until that injunction is lifted. (Defs.’ Mot.

Apparently an appeal is pending, (see Appeal Notice [dkt 298]), but defendants did not 2

file a bond to stay enforcement of the judgment.

 The time for defendants to respond to the citations was extended to January 18, 2011. 3

(Order, Nov. 16, 2010.) [Dkt 323.] On January 19, defendants brought the present motion. [Dkt

330.] 

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at 2-3.) The District Judge referred defendants’ motion to this court. [Dkt 361.]4

The Provisional Injunction was entered by the District Court of Siak Sri Indrapura on June

12, 2008 in case number 02/Pdt.G/2008/PN-SIAK (the “Indonesian case”). (Defs.’ Mot., Ex. A-1,

Prov. Inj. at 1, 59-60.) That case, filed on April 4, 2008 by PT Indah Lestari (“Lestari”), alleges 5

breach of a “Coal Sale and Purchase Agreement” by a number of companies (the “Indonesian

Defendants”). Two of the Indonesian Defendants (Asia Pulp and PT Indah) are also defendants in

this case. (Id. at 1-3, 5-6.) PT Pabrik is not a named defendant in the Indonesian case. (See id. at

1-3.) Lestari sought a total of $5,131,525 in “Material Damage” in the Indonesian case, including

$2,130,000 against PT Indah specifically, as well as $10,000,000 in “Immaterial Damage.” (Id. at

7-8.) Lestari further sought to hold Asia Pulp jointly and severally liable as a guarantor for all

payments owed Lestari by the Indonesian Defendants. (Id. at 9.)

While the Indonesian case was pending, Lestari petitioned the Indonesian court to bar the

Indonesian Defendants from providing information about their assets to third parties. On June 12,

2008, the Indonesian court granted the motion and entered the Provisional Injunction, finding

Lestari’s request was reasonable in order to “protect interests of the Plaintiff, so that after the assets

of the Defendants can be located, the Plaintiff may proceed with its petition for placing of security

attachment over those assets, and . . . so as to avoid any transfer of the assets to third party[.]” (Prov.

 JP Morgan asks the court to treat defendants’ motion to stay as one for a preliminary 4

injunction under Federal Rule of Civil Procedure 65. (Pl.’s Resp. at 8-9.) [Dkt 369.] However,

the District Judge did not view the motion as seeking a preliminary injunction, and this court will

not do so either. 

 Defendants have provided English-language versions of the Provisional Injunction, as 5

well as other documents issued by the Indonesian District Court, from “Sworn Translator” Sutan

Amri Agus Arifin, S.H. JP Morgan does not dispute the accuracy of the translations. 

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Inj. at 50-53, 55, 59.). The Provisional Injunction required the Indonesian Defendants to “provide

statements and information on the assets of the Defendants and those owned by all subsidiaries of

the Defendants to the Plaintiff [Lestari.]” (Id. at 59, ¶ 2.) The Indonesian Defendants were further

ordered to

abstain from providing statements and information on the assets of the Defendants

and those owned by all subsidiaries of the Defendants to any party temporarily

during the examination process of this case, except in respect of those required by

the prevailing laws and regulations of the Republic Indonesia and or as

permitted/ordered/requested by the authorized agencies in the Republic of

Indonesia[.] 

(Id. at 59, ¶ 3 (emphasis added).) Lestari also requested that monetary sanctions of $100,000 a day

be imposed on the Indonesian Defendants if they failed to comply with the Provisional Injunction,

but the court did not order any such sanction. (See id. at 11, 58-60.) 

A little over a year after issuing the Provisional Injunction, the Indonesian court rendered a

“Verdict of the Civil Case” on September 29, 2009, finding in favor of Lestari in a total amount of

$5,131,525, ordering PT Indah to pay $2,130,000 of that amount, and ordering Asia Pulp, as

guarantor, to “pay all indemnities” in the event the other Indonesian Defendants failed to do so. 

(Pl.’s Resp., Ex. 2-24, Verdict at 91-93.) [Dkt 369.] The Verdict appears to refer to the Provisional 6

Injunction in two places. First, in the section entitled “RegardingLegal Considerations,” the Verdict

states, “Panel of Judges has pronounced a Provisional decision dated June 12 (the twelfth), 2008

(year two thousand and eight), Panel of Judges shall uphold the said Provisional Decision in the

Final Verdict accordingly.” Second, in the section entitled “To Judge,” the court states: “Upholding

 Defendants did not provide the Verdict with their motion, but JP Morgan attached it to 6

its response and represented the Verdict was provided by defendants along with a number of

other documents related to the Indonesian case. 

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the Provisional Decision in its entirety[.]” (Verdict at 63, 91.) The court expressly declined to order

a $100,000 a day penalty for noncompliance with the Verdict. (Id. at 83-84.) Defendants represent

that the case is now on appeal before the High Court of Pekanbaru, but no decision has yet been

rendered. (Defs.’ Reply at 3, 6.) [Dkt 370.] No documents relating to the appeal were attached to

defendants’ motion.

Defendants further represent that they have repeatedly applied to the Indonesian District

Court and the High Court of Pekanbaru for permission to provide information about their assets to

United States creditors. (Defs.’ Mot. at 3; Defs.’ Reply at 6.) Defendants did not provide

documentation to support that assertion, but, at the request of the court, JP Morgan attached the

materials it had received from defendants about the Indonesian case, along with English language

translations. (Pl.’s Resp., Group Ex. 2.) Those materials include copies of letters from Indonesian

counsel for PT Indah and other Indonesian Defendants to the Chief Judge of Siak Sri Indrapura

District Court dated October 8, 2008 and May 20, 2009, requesting permission to provide statements

and information about their assets and those of their subsidiaries to creditors in the United States. 

(Pl.’s Resp., Exs. 2-19, 2-22.) There is no indication whether that request was addressed by the

Indonesian District Court. There are also letters dated April 29 and October 21, 2010, from counsel

for PT Indah and other Indonesian Defendants requesting permission from the PekanbaruHigh Court

to provide information about their assets to creditors in the United States while the appeal of the

Indonesian case was pending. (Pl.’s Resp., Exs. 2-25, 2-26.) On November 8, 2010, that court said:

Whereas there is [sic] no laws whatsoever that may be used by the Panel of Judges

to deviate or avoid the provisional judgment of the Siak District Court of which, at

present, is under examination process. Hence, we advise [sic] to wait until the case

in question is settled by the Panel of Judges in the near future.

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(Pl.’s Resp., Ex. 2-29 at 2.) Defendants view that as a denial. There has been no update from

defendants on the status of the Indonesian case. 

Defendants submitted “a legal opinion on the issues of Indonesian law” in the form of a

declaration from Otto Hasibuan, an Indonesian attorney retained by Asia Pulp. (Defs.’ Mot., Ex. B,

Decl. Otto Hasibuan ¶¶ 1, 2.) Mr. Hasibuan is a licensed attorney in Indonesia and has been 7

practicing law there for over twenty years. (Id. ¶ 1.) Mr. Hasibuan opines that, as of the date of his

declaration (December 20, 2010), the Provisional Injunction remained in “full force and effect” and

will remain in effect until the conclusion of the appeals process. (Id. ¶¶ 8, 9.) He states it is not

unusual in the Indonesian court system for appeals to last longer than six months, and not unusual

for such injunctions to remain in place for more than two years. (Id. ¶¶ 9, 13.) The purpose, he

states, is to allow the plaintiff in the Indonesian case, Lestari, to identify assets over which it could

obtain a security attachment to satisfy a judgment and to avoid transfer of such assets to others. (Id.

¶¶ 6, 12.) The injunction is only temporary; after the assets are identified and attached, such a

provision injunction will be vacated. (Id. ¶ 13.) To date, however, Lestari has not attached any

assets of the Indonesian Defendants. (Id.) 

Mr. Hasibuan does not include citations or excerpts from any sources of Indonesian law in

support of his opinions. He opines that the Provisional Injunction prohibits defendants from

providing any of the information JP Morgan seeks in its citations to discover assets, and that

defendants would be exposed to “substantial monetaryfines” if theydo disclose anysuch documents,

information, or testimony. (Id. ¶¶ 17, 18.) He did not, however, cite any support for that conclusion,

 See Fed. R. Civ. P. 44.1: “In determining foreign law, the court may consider any 7

relevant material or source, including testimony, whether or not submitted by a party or

admissible under the Federal Rules of Evidence.”

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nor does his opinion discuss or refer to the fact that the Indonesian court expressly rejected Lestari’s

request that the Provisional Injunction specify monetary sanctions for its violation. Likewise, Mr.

Hasibuan opines that the Provisional Injunction prohibits not only defendants but also their

subsidiaries from providing information about their assets. (Id. ¶ 11.) Again, Mr. Hasibuan does

not cite any support for that opinion, either by reference to any Indonesian law or by citation to the

Provisional Injunction. The Provisional Injunction is not expressly directed to any entities except

the Indonesian Defendants. 

Mr. Hasibuan submitted a similar affidavit on behalf of Asia Pulp, PT Indah, and other

defendants in an objection to post-judgment collection proceedings in the Southern District of New

York. See Export-Import Bank of the U.S. v. Asia Pulp &Paper Co., Ltd, Case No. 03 C 8554, 2009

WL 1055673 at *1 (S.D.N.Y. Apr. 17, 2009). The “Provisional Injunction” described by Mr.

Hasibuan in that case is apparently the same Provisional Injunction at issue here – entered on June

12, 2008 in the Indonesian court case brought by Indah Lestari. Id. The district court in that case

ruled in favor of the plaintiff and ordered the defendants, including Asia Pulp and PT Indah, to

respond to interrogatories about their business relationships and transactions between the defendants

and intermediary companies. Id. at *1 n.4, 4. Mr. Hasibuan opined in that case, as he has here, that

providing the information sought would expose the defendants to “substantial mont[etary] fines.”

Id. at *1. Notably, defendants submitted nothing to this court to show that they suffered any adverse

consequences – let alone substantial monetary fines – from the order entered by the New York court

in April 2009, more than a year and a half before Mr. Hasibuan’s affidavit here.

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Discussion

Whether the court should stay the citation proceedings in this case requires analysis of two

questions. First, the court must determine whetherIndonesian law actually conflicts with the court’s

enforcement of the judgment in this case, that is, whether, in fact, there is a substantial risk to

defendants if they comply with the citations. See U.S. v. First Natl. Bank of Chicago, 699 F.2d 341,

343 (7th Cir. 1983); Dexia Credit Local v. Rogan, 231 F.R.D. 538, 541-42 (N.D. Ill. 2004). Second,

if a conflict does exist, the court must determine whether principles of international comity warrant 

staying the collection proceedings here pending the outcome of the Indonesian case. See id. 

I. Defendants have not proved that there is an actual conflict. 

A. PT Pabrik 

The parties dispute whether the Provisional Injunction applies to defendant PT Pabrik. PT

Pabrik was not named in the Indonesian case, but defendants submit the declaration of FerrySiswojo

Djongianto, the “Director of the Corporate and Legal Affairs Division of the Asia Pulp and Paper

Group of companies[,]” who states that PT Pabrik is a subsidiary of PT Purinusa Ekapersada, one

of the Indonesian Defendants. (Defs.’ Mot., Ex. A, Decl. Ferry Siswojo Djongianto ¶¶ 1, 3.)

Defendants have not established that the Provisional Injunction prohibits PT Pabrik from

complying with the citations. The Provisional Injunction by its terms prohibits only the Indonesian

Defendants from supplying information about the assets of their subsidiaries; it is not directed to

those subsidiaries. (See Prov. Inj. at 59, ¶ 3 (“order[ing] the Defendants to abstain from providing

statements and information on the assets of the Defendants and those owned by all subsidiaries of

the Defendants. . . .”).) Neither Mr. Djongianto nor Mr. Husibuan cite authority from which the

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court could conclude that the Provisional Injunction extends beyond its terms to restrict the actions

of an entity that is not a party to the Indonesian case. 

B. Effect of the Provisional Injunction 

The partiesfurther disagree about both the meaning of the Provisional Injunction and whether

it remains in effect today. Defendants argue that they continue to be bound by its terms and will be 

subject to monetary sanctions if they do not comply. (Defs.’ Mot. at 3-4.) JP Morgan argues that

the Provisional Injunction was temporary and expired by its terms when the Indonesian court

rendered its Verdict, and that there is no proof that defendants will be fined for noncompliance. 

(Pl.’s Resp. at 3-4, 6-7.)

Defendants bear the burden of establishing that the Indonesian court’s Injunction actually

bars the production of the information sought here. See First Natl. Bank, 699 F.2d at 343; Dexia

Credit, 231 F.R.D. at 541. To meet that burden, defendants must “provide the [c]ourt with

information of sufficient particularity and specificity to allow the [c]ourt to determine whether the

[production] sought is indeed prohibited by foreign law.” Dexia Credit, 231 F.R.D. at 541 (internal

citation omitted).

The present status of the Provisional Injunction is not certain, although it apparently had not

expired as of the last information provided by defendants. While the Injunction states that it was to

be in effect “temporarily” during the “examination process of this case,” (Prov. Inj. at 59, ¶ 3), the

Indonesian court appeared to uphold it in its Verdict of a Civil Case. (Verdict at 91.) A year ago,

the Indonesian appeals court “advise[d] [sic] to wait until the case in question is settled by the Panel

of Judges in the near future.” (See Pl.’s Resp., Ex. 2-29 at 2 (emphasis added).) 

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JP Morgan is correct, however, that defendants have not pointed to any specific provision

or evidence that they would be subject to monetary fines or other sanctions for complying with the

citations. Instead, defendants relyon the declaration of Mr. Hasibuan, who opines that the Injunction

is still in effect and exposes them to substantial fines if they produce the information about their

assets required in the citations. (Hasibuan Decl. ¶¶ 8, 9, 17, 18.) Mr. Djongianto also states that it

is his “understanding” that if the Indonesian Defendants “act in a manner contrary to the Provisional

Injunction . . . they will be exposed to punishment by the Indonesian court.” (Djongianto Decl. ¶ 9.) 

Those declarations, however, are not persuasive, for several reasons. First, neither declarant

provides any citations or sources to legal authority to support his opinions. In particular, Mr.

Hasibuan’s assertion that defendants will be subject to monetary sanctions if they turn over

information about their assets to JP Morgan is not only unsupported, it is contrary to the fact that the

Indonesian court rejected Lestari’s request that the Injunction provide for such a fine. Mr.

Djongianto likewise fails to specifywhat “punishment” he believes defendants will face or the basis

for his belief. 

Moreover, Mr. Hasibuan was retained by Asia Pulp and his opinion therefore cannot be

considered with the weight of an independent legal source. See Bodum USA, Inc. v. La Cafetiere,

Inc., 621 F.3d 624, 629 (7th Cir. 2010) (“Trying to establish foreign law through experts’

declarations . . . adds an adversary’s spin, which the court then must discount.”). 

Additionally, despite the fact that their appeal in the Indonesian court has been pending for

more than a year, defendants did not submit any updated information on the status of the appeal. 

In sum, the court is not persuaded that the Provisional Injunction prohibits PT Pabrik from

supplying information required by JP Morgan’s citations or that the other defendants will face any

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significant sanctions for providing such information, particularly given the passage of time since the

“temporary” Provisional Injunction was issued.

II. Comity principles do not require a stay.

Even assuming, arguendo, that the Provisional Injunction conflicts with American law by

restraining defendants from complying with the citations, that fact alone would not automatically

require a stay of the citations here. See First Natl, 699 F.2d at 345. Generally, a United States court

is not bound by the rulings of foreign courts. U.S. v. Kashamu, 656 F.3d 679, 683 (7th Cir. 2011). 

In any case presenting a conflict between the requirements of United States law and prohibitions

imposed by the law of another country, however, the court will consider principles of international

comity. Comity refers to “the spirit of cooperation in which a domestic tribunal approaches the

resolution of cases touching the laws and interests of other sovereign states.” Société Nationale

Industrielle Aérospatiale v. U.S. Dist. Ct., 482 U.S. 522, 543-44 n. 27 (1987). Comity concerns

require an analysis of the competing interests in the particular case. See Reinsurance Co. of Amer.,

Inc. v. Administratia Asigurarilor de Stat, 920 F.2d 1275, 1280 (7th Cir. 1990). 

In determining whether to order disclosure of documents despite a potential conflict with

foreign law, the Seventh Circuit applies a balancing drawn from Restatement of the Foreign

Relations Law of the United States. The court should consider: (1) the importance to the litigation

of the information requested; (2) the degree of specificity of the request; (3) whetherthe information

originated in the United States; (4) the availability of alternative means of securing the information;

and (5) the extent to which noncompliance with the request would undermine important interests of

the United States or compliance with the request would undermine important interests of the country

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where the information is located. ReinsuranceCo., 920 F.2d at 1281-82 (citing Restatement (Third)

of Foreign Relations Law of the United States § 442(1)(c) (1987)); see also Société Nationale, 482

U.S. at 544 n. 28 (noting that the concerns guiding a comity analysis are suggested in the

Restatement’s list of factors (citing Restatement of Foreign Relations Law of the United States §

437 (7th tent. dft. 1986), now § 442 of Restatement (Third))). 

Application of these factors to the present case leads to the conclusion that the citation

proceedings need not be stayed. The citations are specific as to the information JP Morgan seeks. 

(See Defs.’ Mot., Ex. C.) That information is critical to the litigation at this point because JP

Morgan is impeded in essentially all efforts to collect its substantial judgment from defendants

without information about their assets. Defendants have not suggested an alternative means of

securing the information, which apparently resides with defendants in Indonesia. Importantly,

defendants have not established any specific penalty to which they would be subject were they to

disclose the information. 

Most critically, the interests of this court in enforcing its judgment must be balanced against

the Indonesian court’s interest in continuing to enforce its injunction. The Injunction by its terms

was “Provisional.” It was to be temporary while the case was pending. The Injunction was entered

over three years ago and the Verdict over two years ago. The stated goal of the Injunction was to

allow “the Plaintiff [to] proceed with its petition for placing of security attachment over those assets,

and . . . so as to avoid any transfer of the assets to third party[.]” (Prov. Inj. at 55.) Lestari, the

plaintiff in the Indonesian case, has had ample opportunity to receive information about defendants’

assets similar to that sought by JP Morgan. Two years ago, the court in the Export-Import case

concluded that Lestari had had “significant time” to achieve the effect of the Provisional Injunction. 

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Export-Import, 2009 WL 1055673 at *3. Since then, Lestari has had a even more time to identify

and place a security attachment over assets to protect its judgment. The Provisional Injunction has

served its stated purpose.

The case against defendants in this court has been adjudicated, and the court has a significant

interest in enforcing that judgment. JP Morgan has obtained a judgment totaling $54.5 million in

this case, ten times the Verdict of $5.3 million in the Indonesian case. The court cannot allow

enforcement of the judgment in this case to be impeded indefinitely. While defendants represent they

are only temporarily restrained by the Indonesian court’s Injunction, it was issued over three years

ago, and defendants give no specific information about an expected end date, nor did they update the

court about the progress of the Indonesian appeal. Considering all of the relevant factors, principles

of comity do not dictate that this court should stay enforcement of its judgment. 

Conclusion

For the foregoing reasons, defendants’ motion to stay enforcement of plaintiff JP Morgan

Chase Bank, NA’s citations to discover assets directed at defendants is denied. Defendants are

ordered to comply with the citations within fourteen days of this order.

IT IS SO ORDERED.

__________________________________________

GERALDINE SOAT BROWN

United States Magistrate Judge

DATED: November 16, 2011

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