author: D.W. NELSON, Circuit Judge:

text:
    ATTORNEYS LIABILITY PROTECTION SOCIETY, INC., a Risk Retention Group, Plaintiff-Appellant/Cross-Appellee, v. INGALDSON FITZGERALD, P.C., FKA Ingaldson, Maassen & Fitzgerald, P.C., Defendant-Appellee/Cross-Appellant.
    Nos. 13-35115 13-35172
    United States Court of Appeals, Ninth Circuit.
    Argued August 14, 2014
    Submitted June 10, 2016 Anchorage, Alaska
    Filed September 23, 2016

      Kevin Hartzell (argued), Kutak Rock LLP, Omaha, Nebraska, for Plaintiff-Appellant/Cross-Appellee.
    William H. Ingaldson (argued) and Jim M. Boardman, Ingaldson Fitzgerald P.C., Anchorage, Alaska, for Defendant-Appel-lee/Cross-Appellant.

      Rick A. Cigel, The Cigel Law Group, P.C., Los Angeles, CA and Michael B. Kadish, The Kadish Law Group, P.C., Santa Monica, CA, for amicus curiae National Risk Retention Association.
    Before: JEROME FARRIS, DOROTHY W.. NELSON, and JACQUELINE H. NGUYEN, Circuit Judges.
   OPINION

D.W. NELSON, Circuit Judge:

Attorneys Liability Protection Society (ALPS) appeals from the district court’s grant of summary judgment to Ingaldson Fitzgerald, P.C. (Ingaldson), which denied ALPS reimbursement of defense fees expended in an underlying insurance litigation. Ingaldson cross-appeals the district court’s grant of summary judgment to ALPS that the claims asserted in the underlying litigation were not covered by the policy ALPS issued to Ingaldson. We REVERSE the district court’s order denying ALPS reimbursement of defense fees, AFFIRM the district court’s conclusion that the underlying claims were not covered, and REMAND for proceedings consistent with this opinion.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

The facts underlying this litigation are not disputed. ALPS is a Risk Retention Group (RRG) chartered in Montana. In-galdson is a law firm located in Alaska. ALPS provided Ingaldson’s malpractice insurance coverage from April 29, 2007, to April 29, 2008.

Ingaldson’s policy with ALPS insured the firm against claims arising from “an act, error or omission in professional services that were or should have been rendered by [Ingaldson].” The policy expressly excluded from coverage any claims arising from conversion or disputes over fees. The policy also required Ingaldson to reimburse ALPS for fees and costs that ALPS incurred in defending non-covered claims.

In 2008, the bankruptcy trustee for the bankrupt estate of a former client of In-galdson, in conjunction with another former client of the firm, brought a claim against Ingaldson in the U.S. Bankruptcy Court for the District of Alaska. The suit concerned Ingaldson disbursing from and withdrawing fees and costs against a $150,000 retainer. The former client and the trustee sought recovery of that retainer, and asserted claims against Ingaldson for, among other things, restitution, disgorgement, and conversion.

Ingaldson notified ALPS of the underlying suit. ALPS accepted Ingaldson’s tender of the defense in the underlying suit, but did so with the caveat that ALPS “reserved ‘all rights.’” ALPS explained that the underlying suit alleged activities that “d[id] not appear to implicate the provision of service or activities by [In-galdson] as an attorney in an attorney-client relationship,” and thus “d[id] not appear to be professional services within the Policy’s coverage.” ALPS also asserted that the claims in the underlying suit sought restitution that was not within the policy’s definition of covered “damages” and that the policy did not cover claims related to disputes over fees, dishonest or criminal acts, or the conversion of funds in client trust accounts. ALPS specifically reserved the right to reimbursement for the portion of fees incurred in the defense of claims that were deemed not covered under the policy.

Ingaldson retained independent counsel to defend it in the bankruptcy litigation, and ALPS paid the fees charged by that counsel. The bankruptcy court twice granted partial summary judgment against In-galdson.

On September 23, 2011, ALPS filed an action in federal district .court seeking a declaration that the ALPS policy did not cover the claims against Ingaldson and that ALPS had no obligation under the policy to provide an appeal bond in the underlying suit. ALPS also sought to recover the expenses it incurred providing a defense to Ingaldson.

The district court determined that the policy did not cover the claims in the underlying suit. It also concluded that ALPS had no obligation to provide an appeal bond. Nevertheless, the district court determined that ALPS was not entitled to reimbursement of the expenses it incurred defending Ingaldson in the underlying suit. The district court reasoned that while the policy provided ALPS with a right to reimbursement, the reimbursement provision did not comply with Aaska insurance law and was therefore unenforceable. Specifically, the district court concluded that the reimbursement provision was inconsistent with Aaska Statute § 21.96.100(d), which provides that in furnishing the insured with independent counsel, an insurer “shall be responsible only for the fees and costs to defend those allegations for which the insurer either reserves its position as to coverage or accepts coverage.” The district court determined that “Aaska law prohibits the inclusion of a right to reimbursement in insurance policies in the state and does not allow ALPS to provide insurance policy coverage that contradicts that prohibition.” The district court rejected ALPS’s argument that the LRRA preempted Aas-ka Statute § 21.96.100(d).

ALPS appealed. It argued that the district court erred for three reasons: (1) Aaska law does not prohibit an insurer from enforcing a contractual right to reimbursement of defense costs for noncovered claims; (2) the underlying suit was never potentially covered by the ALPS policy; and (3) an interpretation of Aaska Statute § 21.96.100 that prohibited an insurer from including a reimbursement provision in an insurance policy would be preempted by the LRRA.

Ingaldson cross-appealed the district court’s ruling that the ALPS policy did not cover the claims against Ingaldson in the underlying suit. Ingaldson argued that ALPS is estopped from denying coverage under Aaska law because it did not attend settlement sessions and therefore breached the covenant of good faith and fair dealing.

We certified two questions concerning interpretation of Aaska law to the Aaska Supreme Court. Specifically, we asked the Aaska Supreme Court:

1. Does Aaska law prohibit enforcement of a policy provision entitling an insurer to reimbursement of fees and costs incurred by the insurer defending claims under a reservation of rights, where (1) the insurer explicitly reserved the right to seek such reimbursement in its offer to tender a defense provided by inde- ■ pendent counsel, (2) the insured accepted the defense subject to the reservation of rights, and ’ (3) the claims are later determined to be excluded from coverage under the policy?
2. If the answer to Question 1 is “Yes,” does Alaska law prohibit enforcement of a policy provision entitling an insurer to reimbursement of fees and costs incurred by the insurer defending claims under a reservation of rights, where (1) the insurer explicitly reserved the right to seek such reimbursement in its offer to tender a defense provided by independent counsel, (2) the insured accepted the defense subject to the reservation of rights, and (3) it is later determined that the duty to defend never arose-under the policy because there was no possibility of coverage?

The Alaska Supreme Court answered “yes” to each question, undermining the first and second bases for ALPS’s appeal. Attorneys Liab. Prot. Soc’y, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d 1101, 1112 (Alaska 2016).

.In this opinion, we address ALPS’s third argument—that the LRRA preempts § 21.96.100(d). We also address Ingald-son’s cross-appeal.

JURISDICTION

The district court had jurisdiction pursuant to 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1291.

STANDARD OF REVIEW

We review the district court’s orders granting summary judgment de novo. Walls v. Cent. Contra Gosta Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011).

ANALYSIS

1. The LRRA preempts Alaska Statute § 21.96.100(d)’s prohibition on reimbursement of fees and costs incurred by an insurer defending a non-covered claim.

In ALPS’s chartering state, Montana, insurers are permitted to seek reimbursement of fees expended defending a non-covered claim pursuant to a reservation of rights. Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, Inc., 326 Mont. 174, 108 P.3d 469, 480 (2005). The district court held, and the Alaska Supreme Court confirmed, that Alaska Statute § 21.96.100(d) prohibits such reimbursements. We must decide whether the LRRA preempts Alaska’s prohibition.

When considering whether the LRRA preempts a state law, we first determine whether the challenged aspect of the state law offends the LRRA’s broad preemption language. See All. of Nonprofits for Ins., Risk Retention Grp. v. Kipper, 712 F.3d 1316, 1321 (9th Cir. 2013). If so, we consider whether one of the LRRA’s exceptions, which are contained in §§ 3902(a)(1) and 3905, applies to save the state law. See id. If no exception applies, the law is preempted.

We conclude that § 21.96.100(d)’s prohibition on reimbursement of fees and costs incurred by an insurer defending a non-covered claim offends the LRRA’s broad preemption language and that no exception applies to save the law.

The LRRA leaves regulation of an RRG to the state where the RRG is chartered, and broadly preempts “any [non-chartering] State law, rule, regulation, or order to the extent that such law, rule, regulation, or order would ... make unlawful, or regulate, directly or indirectly, the operation of a risk retention group.” 15 U.S.C. § 3902(a)(1).

Section 21.96.100(d) places a restriction oil Alaska contracts that is “not contemplated by the LRRA, and that is not [precluded] by all other states.” Wadsworth v. Allied Prof Is Ins. Co., 748 F.3d 100, 108 (2d Cir. 2014). Although ALPS is permitted by its chartering state, Montana, to require reimbursement of fees and costs incurred defending noncovered claims, ALPS would not be permitted to include such a provision in a contract, issued in Alaska. Section 21.96.100(d) therefore “regulates” ALPS’s operations in Alaska and impermissibly conflicts with the LRRA.

There is no exception that applies to save § 21.96.100(d) from preemption. The exceptions announced in § 3902(a)(1) concern unfair claim settlement laws, false practices laws, taxes levied against other insurers, registration requirements, and financial stability regulations. None of these permits the regulation, of the substantive terms of policies issued by an RRG. The only substantive policy term a non-chartering state may require is a notice to the insured that RRGs are not subject to all of the insurance laws of the non-chartering state. See 15 U.S.C. § 3902(a)(l)(I).

We disagree with the district court’s conclusion that § 3905(c) saves § 21.96.100(d) from preemption. Section 3905(c) prevents an RRG from providing insurance that is otherwise prohibited in the state where the policy is insured. It states:

The terms of any insurance policy provided by a risk retention group or purchased by a purchasing group shall not provide or be construed to provide insurance policy coverage prohibited generally by [the] State ... whose law applies to such policy.

15 U.S.C. § 3905(c). In our view, § 3905(c) allows non-chartering states to restrict the types of insurance coverage, such as for punitive damages or intentional conduct, that may be provided in the state. •See H.R. Rep. 99-865, at 19 (1986) (“Possible examples include coverage for punitive damages, or-for intentional, fraudulent, or criminal conduct”). It does not allow non-chartering states to regulate general policy terms. The district court’s interpretation of § 3905(c) would permit that section' to overtake § 3902’s broad preemption scheme. If the district court’s interpretation were correct, non-chartering states could simply “prohibit” coverage that did not comply with every aspect of state insurance law. In other words, if we were to accept the district court’s interpretation, non-chartering states could fashion their insurance laws in a way to ensure they fall into this exception, thereby always avoiding preemption; We do not believe Congress intended such á result. Estate of Magnin v. Comm’r of Internal Revenue, 184 F.3d 1074, 1078 (9th Cir. 1999) (‘We must interpret [a] statute to give effect to all of its parts.”).

2. ALPS did not breach the implied covenant of good faith and fair dealing.

In its cross-appeal, Ingaldson argues that ALPS is estopped from denying coverage because ALPS failed to attend settlement conferences. According to In-galdson, ALPS thereby breached the implied covenant of good faith and fair dealing. We disagree.

Under Alaska law, estoppel has four elements: “(1) the party to be es-topped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party, asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.” O’Neill Investigations, Inc. v. III. Emp’rs. Ins. of Wausau, .636 P.2d 1170,1178 (Alaska 1981) (internal quotation marks omitted).

In the insurance context, most cases turn -on the last element—whether the insured was prejudiced by the insurer’s conduct. Generally,' prejudice to an insured occurs when an insurer obtains.an unfair advantage by misleading, deceiving, or withholding information from the' insured. See, e.g., Progressive Cas. Ins. Co. v. Skin, 211 P.3d 1093, 1103 (Alaska 2009) (finding possible estoppel of excluded-driver defense when insurer contacted insured to ask which family members were excluded from policy without sharing purpose of inquiry); Lloyd’s & Inst. of London Underwriting Cos. v. Fulton, 2 P.3d 1199, 1207-08 (Alaska 2000) (finding estoppel where insurer gained full access to insured, investigated a later-asserted coverage defense, and never informed insured of right to independent counsel).

Here, there is no indication that Ingald-son was prejudiced by ALPS’s failure to attend settlement sessions. ALPS informed Ingaldson from the outset that it intended to assert coverage defenses, provided independent counsel to Ingaldson, and acted .consistently with its view that coverage did not exist. Cf. Sauer v. Home Indem. Co., 841 P.2d 176, 182 (Alaska 1992) (finding estoppel where insurer failed to give reasonable notice of coverage defense). We reject Ingaldson’s argument that ALPS is estopped from denying coverage.

CONCLUSION

We REVERSE the district court’s order precluding ALPS from recovering fees and costs incurred defending Ingaldson in the underlying dispute, we AFFIRM the district court’s holding that the claims in the underlying dispute were not covered under the policy, and REMAND for further proceedings consistent with this opinion.

      . Under the Liability Risk Retention Act of 1986 (LRRA), 15 U.S.C. §§ 3901-06, an RRG is defined as "any corporation or other limited liability association ... whose primary activity consists of assuming, and spreading all, or any portion, of the liability exposure of its group members.” 15 U.S.C. § 3901(a)(4)(A).

      . The LRRA broadly preempts "any State law, rule, regulation, or order to the extent that such law, rule, regulation, or order would ... make unlawful, or regulate, directly or indirectly, the operation ‘of a risk retention group.” 15 U.S.C. § 3902(a)(1). The district court held—erroneously in our view as discussed infra—that the exception contained in § 3905(c) saved ' Alaska Statute § 21.96.100(d) from preemption.

      . One of our sister circuits applied a similar analysis in finding a state statute preempted by the LRRA. In Wadsworth, the Second Circuit considered a New York statute that permitted a tort victim with an unsatisfied judgment to bring suit directly against a tortfeasor’s insurer. 748 F.3d at 101. The policy at issue was issued by'an RRG domiciled in Arizona to a chiropractor. in New York. Id. A tort victim of the chiropractor sued the RRG to enforce a judgment left unsatisfied by the chiropractor. Id. at 102. The RRG argued that the direct-suit provision was preempted by the LRRA. Id. The Second Circuit agreed, concluding that the direct-suit provision was preempted by the LRRA because it conflicted with the “any regulation” language in § 3902(a)(1). Id. at 107 (“A clearer prohibition would be hard to devise.”).

      . We reject Ingaldson’s circular argument that its policy with ALPS has a clause expressly conforming it to Alaska law, thereby incorporating § 21.96.100 even if it is otherwise preempted. Alaska law applies only insofar as it is not preempted by federal law. So even if the policy conforms to Alaska law, Alaska law must conform to the LRRA. The policy’s clause providing for reimbursement of fees and costs to ALPS remains valid.
      We also reject Ingaldson’s argument that the McCarran-Ferguson Act, 15 U.S.C. §§ 1011-12, saves § 21.96.100(d). We have squarely held that even though the McCar-ran-Ferguson Act reserves insurance regulation to the states, the LRRA was meant to be an exception for RRGs. Nat’l Warranty Ins. Co. RRG v. Greenfield, 214 F.3d 1073, 1077 (9th Cir. 2000).

      . We note that this is not a case where ALPS could have tendered a settlement to the policy limit, thereby avoiding an excess judgment against Ingaldson. At no time did the amount in controversy in the underlying dispute approach the policy’s $2 million limit. See Jackson v. Am. Equity Ins. Co., 90 P.3d 136, 142 (Alaska 2004) (“When a plaintiff makes a policy limits demand, the covenant of good faith and fair dealing places a duty on an insurer to tender maximum policy limits to settle a plaintiff’s demand when there is a substantial likelihood of an excess verdict against the insured.") (emphasis added).


source: Caselaw Access Project

author: McKEOWN, Circuit Judge:

license: Public Domain

text:
    ARIZONA GREEN PARTY; Claudia Ellquist, Plaintiffs-Appellants, v. Michele REAGAN, in her official capacity as Secretary of the State of Arizona, Defendant-Appellee.
    No. 14-15976
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 11, 2016 San Francisco, California
    Filed September 23, 2016

      Julia Damron (argued) and Robert E. Barnes, Los Angeles, California, for Plaintiffs-Appellants.
    James Driscoll-MacEachron Assistant Attorney General; Office of the Arizona Attorney General, Phoenix, Arizona; for Defendant-Appellee.
    Before: M. MARGARET McKEOWN and MICHELLE T. FRIEDLAND, Circuit Judges, and JOAN LEFKOW, District Judge.

       The Honorable Joan H. Lefkow, Senior District Judge for the U.S. District Court for the Northern District of Illinois, sitting by designation.

   OPINION

McKEOWN, Circuit Judge:

The Arizona Green Party (the “Green Party” or the “Party”), having failed to meet the deadline for recognition as an official political party on the 2014 Arizona ballot, challenges the constitutionality of Arizona’s filing deadline for new party petitions. The Green Party seeks declaratory and injunctive relief against the Arizona Secretary of State (the “Secretary”), claiming that by requiring “new” parties to file recognition petitions 180 days before the primary, Arizona unconstitutionally burdens those parties’ First and Fourteenth Amendment rights.

Ballot access litigation follows a common pattern. The scrutiny courts employ in assessing the constitutionality of a state’s election law turns on the severity the law imposes on the party or candidate’s First and Fourteenth Amendment rights. The plaintiff bears the burden of showing the severity of the burden on-those constitutional rights; evidence that the burden is severe, de minimis, or something in between, sets the stage for the analysis by determining how compelling the state’s interest must be to justify the law in question. In this case, the Green Party chose not to present any evidence. Instead, it relied on analogies to earlier cases to argue that Arizona’s 180-day deadline for filing new party recognition petitions is unconstitutional as a matter of law.

Without evidence of the specific obstacles to ballot access that the deadline imposes, the Green Party did not establish that its rights are severely burdened. At best—on this record—any burden is de minimis. By contrast, Arizona’s evidence supports the interrelated deadlines that make up its . election cycle. Balancing the impact of the 180-day filing deadline on the Green Party’s rights against Arizona’s interests in maintaining that deadline, we conclude that the Green Party has not demonstrated an unconstitutional interference with ballot access.

Background

Arizona election law provides three avenues for political parties to obtain state recognition, each of which requires a threshold level of political support within the state. For automatic and continued recognition, a party must have received at least five percent of votes cast in the last preceding general election or achieved a threshold number of registered electors. A third alternative allows a party to demonstrate the requisite level of support via petition.

Arizona Revised Statute § 16-804 lays out the framework for automatic and continued recognition:

A) A political organization that at the last preceding [applicable] general election cast ... not less than five per cent of the total votes cast for governor or presidential electors, ... is entitled to representation as a political party on the official ballot for state 'officers or for officers of such county or local subdivision.
B) [A] political organization is entitled to continued representation as a political party on the official ballot ... if, on October 1 of the year immediately preceding the year [of the applicable] general election ... [or] one hundred fifty-five days immediately preceding the primary election in such jurisdiction, such party has registered electors in the party equal to at least two-thirds of one per cent of the total registered electors in such jurisdiction.

Id. § 16-804(A), (B). Parties that do not meet these requirements may obtain recognition by filing “a petition signed by a number of qualified electors equal to not less than one and one-third per cent of the total votes cast for governor at the last preceding general election at which a governor was elected.” Id. § 16-801(A).

Once recognized through any of these mechanisms, parties are entitled to state-provided primary ballots as well as a designated column of party candidates on the general election ballot. Id. §§ 16—341(B), 16-502(C). New party recognition lasts for two regularly scheduled general elections for federal office before party status must be renewed. Id. § 16-801 (B).

Even if a party does not qualify as officially recognized, its candidates still have the benefit of party designation, subject to some restrictions. Candidates who are affiliated with unrecognized political organizations can run as independent candidates and may designate their own party affiliation, which appears next to the candidate’s name on the general election ballot. Id. at § 16-341. Write-in candidates may also designate a party affiliation next to their name, which is posted on the Arizona Secretary of State’s official website. See id. § 16-312.

The Green Party sought recognition via petition in 2014 because it lost its official status in 2013. After the 2010 gubernatorial election, the Green Party was on notice that it had failed to garner five per cent of the vote and, on November 20, 2013, the Secretary officially confirmed that the Green Party had lost its recognized status. At that point, the Party had approximately three months to collect signatures in support of new party recognition. Signature gathering to obtain recognition under § 16-801 may commence as soon as a party learns that it did not qualify for automatic recognition based on votes cast or electors registered in the previous general election. For the 2014 election cycle, parties petitioning under § 16-801 were required ,to file 23,401 signatures with the Secretary by February 27, 2014.

The 180-day petition-filing deadline has been an element of Arizona election law since 2000. Id. § 16-803(A) (“A petition for recognition of a new political party shall be filed ... not less than one hundred eighty days before the primary election for which the party seeks recognition.”). The deadline is calculated by working backward from a number of nested deadlines leading up to the primary, which include:

• Calculating candidate signature requirements, id.- §§' 16-168(G), 16-322(B);
• Filing deadlines for candidates, id. at §§ 16-311,16-341;
• Mailing notice to voters on the early voting list, id. at § 16—544(D);
• Resolving nomination petition challenges, id. at § 16-351(A);
• Finalizing primary ballots for printing;
• Mailing primary ballots to uniformed and overseas voters, id. at § .16— 544(F);
• Testing the electronic ballot machines, id. at § 16-449; and
• Early voting deadlines for the primary, id. at § 16-542(C).

Rather than filing a new party petition, in February 2014 the Green Party and Green Party supporter Claudia Ellquist filed a 42 U.S.C. § 1983 suit against the Secretary in federal court alleging that the February deadline was unconstitutional under the First and Fourteenth Amendments. In an effort to resolve the matter before the 2014 general election, the parties stipulated to an expedited litigation process resulting in cross-motions for summary judgment. The Green Party did not seek a preliminary injunction.

The district court granted summary judgment in favor of the Secretary. Because the Green Party did not present any evidence or controvert the Secretary’s material facts, the district court found that the Green Party had failed to demonstrate how “the 180-day deadline alone, considered outside the context of the election cycle requiring it, necessarily imposes a severe burden. And they have not offered evidence—or even alleged—that the other interrelated provisions governing the election cycle impose a severe burden.” Explaining that the deadline was not “unnecessary, excessive, or discriminatory,” the district court concluded that “the interplay between the February deadline and [Arizona’s] election scheme as a whole ... rationally accommodates the state’s administrative needs.”

The Green Party did not seek expedited review on appeal, and, its first brief was not filed until September 2014, long after the petition-filing deadline passed.

Analysis

I. Mootness

The 2014 election has come and gone, so we cannot devise a remedy that will put the Green Party on the ballot for that election cycle. All specific demands for relief related to the 2014 election are moot. Because the Green Party will need to re-qualify as a new party every two election cycles (unless it' reaches the § 16-804 threshold), the 180-day deadline is likely to surface again and is therefore “capable of repetition, yet evading review,” Norman v. Reed, 502 U.S. 279, 288, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992) (quoting Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969)). Accordingly, the challenge to that deadline’s constitutionality is not moot. We thus -have jurisdiction to address the merits of the Green Party’s claim on appeal.

II. The Balancing Test for Ballot Access

The foundation of our analysis comes from two Supreme Court cases that address the framework in ballot access cases: Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1664, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). In Anderson, the Supreme Court articulated a balancing test to determine whether rules impacting ballot access pass constitutional muster:

[A] court must.... first consider the character and-magnitude of the asserted injury to the rights protected by the ■ First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment,, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiffs rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

460 U.S. at 789, 103 S.Ct. 1564. In Burdick, the Court refined its analysis as to the degree of rigor required in weighing a restriction’s burden on ballot access rights against the state’s interest:

[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are. generally sufficient to justify the restrictions.

504 U.S. at 434, 112 S.Ct. 2059 (internal quotations and citation omitted).

We have summarized the Supreme Court’s approach as a “balancing and means-end fit framework.” Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 2016 WL 4578366, at *3 (9th Cir. 2016) (en banc). This is a sliding scale test, where the more severe the burden, the more compélling the state’s interest must be, such that “a state may justify election regulations imposing a lesser burden by demonstrating the state has important regulatory interests.” Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 729-30 (9th Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 823, 193 L.Ed.2d 718 (2016) (internal citations, alterations, and quotation marks omitted).

III. Burdens on Ballot Access

We begin by acknowledging the importance of third parties and the constitutional interests implicated by. limiting their access to the ballot. As the Supreme Court emphasized in Norman:

[T]he constitutional right of citizens to create and develop new political parties .... derives from the First and Fourteenth Amendments and advances the constitutional interest of like-minded voters to gather in pursuit of common political ends, thus enlarging the opportunities of all voters to express their own political preferences. To the degree that a State would thwart this interest by limiting the access of new parties to the ballot, we have called for the demonstration of a corresponding interest sufficiently weighty to justify the limitation.

502 U.S. at 288-89, 112 S.Ct. 698 (internal citations omitted).

These principles led the Court to strike down a series of Ohio laws that made it virtually impossible for any party other than the Democratic and Republican parties to appear on the ballot. As the Court observed, “[t]he right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes.” Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

More specifically, the Supreme Court, and many lower courts, have recognized that—in general—timing obstacles can pose unconstitutional banders to ballot access:

When the primary campaigns are far in the future and the election itself is even more remote, the obstacles facing an independent candidate’s organizing efforts are compounded. Volunteers are more difficult to recruit and retain, media publicity and campaign contributions are more difficult to secure, and voters are less interested in the campaign.

Anderson, 460 U.S. at 792, 103 S.Ct. 1564; see also Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 586-87 (6th Cir. 2006) (“Deadlines early in the election cycle require minor political parties to recruit supporters at a time when the major party candidates are not known and when the populace is not politically energized .... Early deadlines also have the effect of ensuring that any contentious issue raised in the same year as an election cannot be responded to by the formation of a new political party. The combination of these burdens impacts the party’s ability to appear on the general election ballot, and thus, its opportunity to garner votes and win the right to govern.” (internal citations omitted)). For all of these rear-sons, we can imagine how an early filing deadline could impact the Green Party’s rights, but that, does not mean that Arizona’s deadline necessarily poses an unconstitutional burden.

The relevant inquiry is whether “[the state]’s ballot access- requirements seriously restrict the availability of political opportunity.” Libertarian Party of Wash. v. Munro, 31 F.3d 759, 762 (9th Cir. 1994). The Green Party bears the initial burden of showing such restrictions. See id. In Munro, we made clear that parties alleging a severe burden must provide evidence of the specific burdens imposed by the law at issue. See id. “[T]he extent of the burden that a primary system imposes ... is a factual question on which the plaintiff bears the burden of proof.” Democratic Party of Haw. v. Nago, 833 F.3d 1119, 2016 WL 4269872, at *2 (9th Cir. 2016). In challenging ballot access regulations, parties must articulate the nature of the burden, which “should be measured by whether, in light of the entire statutory scheme regulating ballot access, ‘reasonably diligent’ [parties] can normally gain a place on the ballot, or whether they will rarely succeed in doing so.” Nader v. Brewer, 531 F.3d 1028,1035 (9th Cir. 2008) (internal citations omitted).

In its complaint, the Green Party alleges that the February deadline greatly increases costs faced by third parties, was not designed to allow a reasonably diligent minor party to qualify for ballot access, and requires minor parties to gather signatures when the “mind of the general public and the attention of the media is not focused on the general elections.” These may well be legitimate complaints, but the Green Party did not submit any supporting evidence with its motion for summary judgment.

Instead, the Party chose to argue that the' deadline was unconstitutional as a matter of law. As a result, “[a]ny effort to apply the balancing standard to this case is hamstrung by a lack of evidence— Without any evidence regarding the practical consequences of the [deadline], we find ourselves in the position of Lady Justice: blindfolded and stuck holding empty scales.” Ariz. Libertarian Party, 798 F.3d at 736 (McKeown J., concurring) (internal citations omitted). For example, we do not know how difficult it was for the Green Party to collect the required signatures, how much the signature-gathering effort cost, whether petition efforts diverted the Party’s resources from other endeavors, whether the “mind of the general public” was diverted from the election at the time the Party sought to collect signatures, how difficult it has been for new parties to comply with the deadline historically, or even if the Party attempted to comply with the deadline at all. Without evidence, the burdens identified in the Green Party’s complaint are purely speculative.

In the absence of specifics, the Green Party relies heavily on a district court decision holding an Arkansas filing deadline unconstitutional. See Citizens to Establish a Reform Party in Ark. v. Priest, 970 F.Supp; 690 (E.D. Ark. 1996). Unlike the Green Party, the Arkansas Reform Party presented considerable testimony about the burdens of the deadline, including the analysis of two experts in minor political parties and ballot access. Id. at 694. For example, the plaintiffs presented testimony that “[t]hey experienced difficulty collecting petition signatures in the winter time due to cold temperatures and inclement weather,” id, at 692, circumstances that would likely not impair signature gathering in early winter in most parts of Arizona. The extensive evidence provided in Priest stands in stark contrast to the bare record here.

Analogy and rhetoric are no substitute for evidence, particularly where there are significant differences between the cases the Green Party relies on and the Arizona election system it challenges. The Supreme Court and our sister circuits have emphasized the need for context-specific analysis in ballot access cases. See Cal. Democratic Party v. Jones, 530 U.S. 567, 578, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (“The evidence in this case demonstrates that under California’s blanket primary system, the prospect of [harm] is far from remote— indeed, it is a clear and present danger.” (emphasis added)); Blackwell, 462 F.3d at 587 (“In determining the magnitude of the burden imposed by a state’s election laws, the Supreme Court has looked to the associational rights at issue, including whether alternative means are available to exercise those rights; the effect of the regulations on the voters, the parties and the candidates; evidence of the real impact the restriction has on the process; and the interests of the state relative to the scope of the election.” (emphasis added)); Nago, 2016 WL 4269872, at *2 (“Because the ... Party has not presented any evidence to meet its burden, its facial challenge fails.”).

The balancing test rests on the specific facts of a particular election system, not on “strained analogies]” to past cases. Munro, 31 F.3d at 762. That filing deadlines of similar lengths may prove unconstitutionally burdensome in the context of some election schemes does not eliminate the need for evidence' that a severe burden was imposed by the filing deadline in this case. See id. (“The problem ... is that, while the [Party] claim[s] to suffer exactly the same disabilities that the Court found unconstitutional in Anderson, [its] sitúation is vastly different.”). This is not to say that in a most unusual circumstance a ballot regulation could not be deemed unconstitutional on its face without further evidence. But such is not the case here.

The Green Party cannot prevail by “simply parrot[ing] the language of [earlier cases] without demonstrating how it actually applies to [the challenged] scheme.” Id. at 763. Significantly, we explained in Nader that “[t]o determine the severity of the burden, ... past candidates’ ability to secure a place on the ballot can inform the court’s analysis” of whether a state election law passes constitutional muster. 531 F.3d at 1035; id. at 1038 (finding a severe burden where historical evidence showed that after changing the filing deadline, no independent candidate had appeared on the ballot). Here, recent historical evidence shows that non-major parties, including the Green Party, have been able to gain official party recognition in Arizona despite the 180-day filing deadline. What little evidence we do have therefore suggests that Arizona’s deadline does not severely burden constitutional rights.

Absent evidence of the particular burdens imposed in this case, we conclude that, at best, the 180-day petition-filing deadline imposes a de minimis burden on constitutional rights.

IY. Arizona’s Legitimate Interest

Because the record demonstrates that the filing deadlines imposes no more than a de minimis burden on the Green Party’s constitutional rights, Arizona need only demonstrate that the filing deadline serves “important regulatory interests.” Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (internal quotations omitted). The evidence Arizona presented more than satisfied this burden.

Unlike the Green Party, the Secretary presented substantial evidence that details the processes for ballot access and the rationale behind each step in the timeline at each stage of the election process. The nested deadlines leading up to the Arizona primary, as well as the tasks that must be accomplished between the primary and general election, reflect an effort by the state to achieve the important goal of orderly elections. For example, the number of required signatures for independent candidate petitions depends on the number of registered voters who are not affiliated with a recognized party. For this reason, the state must know how many recognized parties will appear on the ballot before setting the candidate signature requirements, at which point candidates have two months to collect signatures. As Arizona’s Assistant State Election Director explained, “[i]f the petition deadline to obtain recognized party status were moved to a later date, new party candidates would have little or no meaningful opportunity to obtain the requisite number of signatures to qualify for the party’s primary ballot.” She also noted that in late May, Arizona counties mail a list of recognized political parties holding primaries in a particular election to the more than 1.9 million early registered voters, and that adding additional parties after the mailing deadline could therefore impose considerable burdens on the counties and lead to voter confusion. Also, in preparation for the primary, ballots must be translated into Spanish and several Native American languages, a process that takes time. (See above for the statutory scheme regulating the pre-election deadlines).

Even if Arizona could “streamline its system” and prepare for the primary in a shorter period of time, it is not required to “adopt a system that is the most efficient possible.” Munro, 31 F.3d at 764. On this record, we conclude that Arizona’s filing deadline serves “important regulatory interests,” Burdick, 504 U.S. at 434, 112 S.Ct. 2059, that outweigh any de minimis burden the deadline may impose on the Green Party’s rights.

Conclusion

The Green Party has not met its burden of showing that' Arizona’s 180-day petition-filing deadline significantly burdens constitutional rights, while the Secretary has demonstrated that the restriction serves Arizona’s important interest in administering orderly elections. The district court therefore correctly granted summary judgment in favor of the Secretary.

Affirmed.

      . Although much of the Green Party’s brief is dedicated to a historical discussion of third parties in presidential elections, the Arizona rules governing the presidential election cycle are not at issue here. See Ariz. Rev. Stat. § 16-341(G) ("A nomination petition for the office of presidential elector shall be filed not less than sixty nor- more than ninety days before the general election.”).

      . The term "new” party is something of a misnomer because parties that use this mechanism for ballot recognition need not be newly formed. For example, the Arizona Green Party has existed for many years but is still treated as a "new” party. Although a more accurate term would be "small,” "minor” or "third” party, we follow , the-terminology in Arizona's statute.

      . At oral argument, counsel for the Secretary explained that the restrictions listed in § 16-341 prohibit independent candidates from circumventing the rules for county or municipal party recognition or for continued recognition under § 16-804, but that there was "no limit that I see that would stop” an independent candidate from designating the Green Party as its political affiliation on the general election ballot.

      . Before the new party petition deadline was amended in 2000, the deadline was 140 days before the primary. Ariz. Rev. Stat. § 16-803 (2000). In 2011 and 2012, the Arizona legislature again amended § 16-803 to shift part of the task of verifying signatures from the counties to the Secretary, but the 180-day deadline remained the same. Id, (2011) (amended by S'.B. 1471); id. (2012) (amended by H.B. 2033). • • -

      . The Green Party does not challenge the time allotted for candidates to collect signatures, the time needed to print and distribute ballots, or any of the other interconnected deadlines leading up to the primary.


text:
    Vincent Sicre DE FONTBRUNE; Loan Sicre de Fontbrune; Adel Sicre de Fontbrune; Anais Sicre de Fontbrune, in their capacity as the personal representatives of the Estate of Yves Sicre de Fontbrune, Plaintiffs-Appellants, v. Alan WOFSY; Alan Wofsy & Associates, Defendants-Appellees.
    No. 14-15790
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 9, 2016, San Francisco, California
    Filed September 26, 2016
    As Amended on Denial of Rehearing and Rehearing En Banc November 14, 2016

      Richard Mooney (argued) Rimon PC, San Francisco, California, for Plaintiffs-Appellants.

      Neil A.F. Popovic (argued) and Shanna M. Pearce, Sheppard Mullin Richter & Hampton LLP, San Francisco, California, for Defendants-Appellees.
    Before: M. MARGARET McKEOWN and MICHELLE T. FRIEDLAND, Circuit Judges and RICHARD F. BOULWARE, District Judge.

       The Honorable Richard F. Boulware, District Judge for the U.S. District Court for the District of Nevada, sitting by designation.

   OPINION

McKEOWN, Circuit Judge:

Justice Holmes once observed that foreign legal systems can appear to the uninitiated “like a wall of stone,” impenetrable and unyielding. Diaz v. Gonzalez, 261 U.S. 102, 106, 43 S.Ct. 286, 67 L.Ed. 550 (1923) (Holmes, J.). For over a century, the federal courts attempted to scale this stone wall by treating questions of foreign law as questions of fact to be pleaded and proved. But over the years, this method proved unsatisfactory, obscuring rather than illuminating the content and nuance of foreign laws. Finally, in 1966, following a proliferation of international litigation, Federal Rule of Civil Procedure 44.1 was adopted to furnish federal courts with a uniform procedure for raising and determining an issue concerning foreign law. Fed. R. Civ. P. 44.1 advisory committee’s note. Now, according to the Rule, a “court’s determination [of foreign law] must be treated as a ruling on a question of law.” Fed. R. Civ. P. 44.1.

Despite the clear mandate of the federal rule, this appeal illustrates the difficulty that can arise in determining foreign law and the confusion surrounding the role of foreign law in domestic proceedings. The dispute stems from the transcontinental attempts of Yves Sicre de Fontbrune to protect his copyright in' photographs of Pablo Picasso’s artworks after an American art editor, Aan Wofsy and Alan Wofsy and Associates (collectively, ‘Wofsy”), reproduced the photographic images. As part of his efforts, de Fontbrune received a judgment in French court of. two million euros in “astreinte” against Wofsy for copyright violations. De Fontbrune sought to enforce this astreinte in federal court in California under the California Uniform Foreign-Court Monetary Judgment Recognition Act (“Uniform Recognition Act” or “the Act”), Cal. Civ. Proc. Code §§ 1713 et seq.

The Picasso photographs—intended to convey the quintessence of Picasso’s artworks—now require us to delve into the essence of astreinte, a French judicial device. The enforceability of the French award turns on whether, in this case, the astreinte functions as a fine or penalty— which the Uniform Recognition Act- does not recognize—or as a grant of monetary recovery—which is statutorily cognizable. The answer to this question is not a simple matter of translation, but, as we explain, requires a broader look at French law to understand the nature of the astreinte remedy in this case, in conjunction with an analysis of California law regarding the enforcement of foreign judgments.

In granting Wofsy’s Rule 12(b)(6) motion to dismiss de Fontbrune’s claim, the district court considered the parties’ expert declarations on the nature of ast-reinte. We disagree with de Fontbrune’s proposition that consideration of such materials outside the pleadings was error. Rather, under Rule 44.1’s broad mandate, foreign legal materials—including expert declarations on foreign law—can be considered in ruling on a motion to dismiss where foreign law provides the basis for the claim. We reverse and remand, however, because, the district court erred in concluding that the astreinte awarded by the French court in this case functioned as a “fine or other penalty” for purposes of the Uniform Recognition Act.

Background

Between 1932 and 1970, Christian Zer-vos created a “catalogue raisonné” featuring photographs of Picasso’s artistic corpus. The “Zervos Catalog,” which contained almost 16,000 photographs of Picasso’s art, was ultimately published by Cahiers d’Art and has become a universally recognized reference work. De Fontbrune purchased Cahiers d’Art’s publisher’s stock in 1979, thereby acquiring intellectual property rights in the Zervos Catalog under French law.

Almost two decades later, Wofsy reproduced several photographs from the Zer-vos Catalog in two volumes on Picasso, which he offered for sale at a Parisian book fair. De Fontbrune brought suit in French court claiming that these reproductions violated his copyright in the Zervos Catalog.

After a French trial court rejected his claims, de Fontbrune appealed to the Paris Court of Appeal. In a 2001 decision (the “2001 Judgment”), the Court of Appeal concluded that Wofsy was “guilty of infringement of copyright and ha[d] infringed on [de Fontbrune’s] rights.” The court accordingly prohibited Wofsy “from the use in any manner whatsoever of the [Zer-vos] photographs under penalty of ... [astreinte] of 10,000 francs by proven infraction,” and required Wofsy “to pay Mr. de Fontbrune 800,000 francs in pecuniary damages in redress of his- injury resulting from the infringement of copyright.”

Ten years later, de Fontbrune filed a claim with an enforcement judge at the Tribunal de Grande Instance de Paris (High Court of Paris) for “[liquidation d’astreinte] made against [Wofsy] by judgment of the Paris Court of Appeal[ ].” De Fontbrune sought “a judgment ordering [Wofsy] to pay him the sum of 2,000,000 euros from the amount of the [liquidation d’astreinte].”

In a 2012 decision (the “2012 Judgment”), the enforcement judge found that Wofsy had violated the 2001 Judgment by reproducing copyrighted images from the Zervos Catalog. The judge accordingly “[a]ward[ed] the [astreinte] prounounced by the Paris Court of Appeal[ ] ... in the amount of 2,000,000 euros,” as well as 1,000 euros in costs.

De Fontbrune then initiated proceedings in California state court seeking recognition of the 2012 Judgment under the Uniform Recognition Act. Wofsy removed the action to federal court ' on diversity grounds, and filed a motion to dismiss under Rule 12(b)(6).

Wofsy’s motion contested the. characterization of astreinte as “damages” in the English versions of the 2001 and 2012 Judgments attached to de Fontbrune’s complaint. Wofsy argued that astreinte functions as a penalty—not as an award, of damages—and is thus not cognizable under the Uniform Recognition Act. In sup: port of this assertion, Wofsy supplied a declaration by a French lawyer, Vonnick le Guillou. De Fontbrune countered with a declaration from Ms own expert on French law, Christopher Mesnooh, explaining that, in the French system, astreinte can function as an award of damages. De Font-brune also argued that the district court should strike Guillou’s declaration as evidence outside the pleadings impermissibly filed in support of a motion to dismiss.

Faced with conflicting information about the function of astreinte in French law, the district court initially denied Wofsy’s motion in part, concluding that determining whether astreinte is a “fine, a penalty, damages, or something else ... require[d] an analysis of French law” that would be “premature at [the] pleadings stage.” The district court also declined to consider Guillou’s declaration under Rule 44.1, on the grounds that the Rule did not “expressly allow the Court to consider evidence outside the pleadings on a Rule 12(b)(6) motion,” and that a party relying on foreign law bears the burden of proving the content of that law.

After Wofsy filed a motion for reconsideration, together with a reply declaration from Guillou, the district court reversed course. This time around, the district court concluded that “its previous finding concerning judicial 'notice of foreign law was in error” and vacated the order denying Wofsy’s motion to • dismiss. In a complete volte face, the district court reasoned that Rule 44.1 permits judicial consideration of any relevant material or source in determining foreign law, irrespective of its admissibility as evidence. Because “determinations of foieign law are issues of law, not fact,” the court also concluded that it could take judicial notice of the declarations of the French legal experts, “insofar as they relate to French law.”

Taking these declarations into consideration, the court determined that the primary purpose of the astreinte was not to compensate de Fontbrune for the damages he suffered, but to compel Wofsy’s compliance with the 2001 Judgment. The court concluded that the astreinte thus functioned as a penalty and so was not cognizable under the Uniform Recognition Act. De Fontbrune now appeals from the district court’s dismissal of the action with prejudice.

Analysis

The district court’s vacillation illustrates the lingering uncertainty surrounding the role of foreign law in domestic proceedings, even after the advent of Rule 44.1. We take this opportunity to address a question that no circuit has yet answered directly, perhaps because the answer is implicit in the rule: whether Rule 44.1 authorizes district courts to consider foreign legal materials outside the pleadings in ruling on a motion to dismiss. Our answer is yes, because Rule 44.1 treats foreign law determinations as questions of law, not fact.'

I. Foreign Law under Rule 44.1

Rule 44.1 provides:

A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.

The adoption of Rule 44.1 in 1966 marked a sea change in the treatment of foreign law by the federal courts. See Twohy v. First Nat’l Bank of Chi., 758 F.2d 1185, 1192-93 (7th Cir. 1985). Prior to its adoption, foreign law was viewed as a question of fact to “be proved like other facts.” Church v. Hubbart, 6 U.S. (2 Cranch) 187, 187, 2 L.Ed. 249 (1804) (Marshall, C.J.). The treatment of foreign law as fact reflected understandable judicial discomfort with questions of foreign law due to inevitable unfamiliarity with the substance and nuance of the legal systems of other countries. Arthur R. Miller, Federal Rule JM..1 and the “Fact” Approach to Determining Foreign Law: Death ' Knell for a Die-Hard Doctrine, 65 Mich. L. Rev. 613, 619-20 (1967).

Rule 44.1 endeavored to lay to rest this antiquated conception of foreign law as “a question of fact that must be proved at trial and reviewed on appeal only for. clear error." Rationis Enters, Inc. of Pan. v. Hyundai Mipo Dockyard Co., 426 F.3d 580, 585 (2d Cir. 2005). The Rule achieved this transformation by making the process of ascertaining foreign law equivalent to the process for determining domestic law, insofar as possible. 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2444 (3d ed. 2008); see also Matter of McLinn, 739 F.2d 1395, 1398 (9th Cir. 1984) (analogizing treatment of foreign law and treatment of laws of sister states).

Rule 44.1 thus unshackles courts and litigants from the evidentiary and procedural requirements that apply to factual determinations. It accordingly permits courts to consider “any relevant material, including testimony, without regard to its admissibility under Rule 43,” authorizes the court to “engage in its own research,” eschews any requirement that the court formally take judicial notice of foreign law, and obviates the need for the court to provide “formal notice to the parties of its intention to engage in its own research on an issue of foreign law which has been raised by them, or of its intention to raise and determine independently an issue not raised by them.” Fed. R. Civ. P. 44.1 advisory committee’s note.

The Rule’s requirements are intended to be “flexible and informal” to “encourage the court and counsel to regard the determination of foreign law as a cooperative venture requiring an open and unstructured dialogue among all concerned.” Wright & Miller at § 2444. Rule 44.1 exhorts trial and appellate courts alike to make the most of this flexibility to independently research and analyze foreign law—particularly as such issues will undoubtedly continue coming “to the federal courts with increasing frequency as the global economy expands and cross-border transactions increase.” Curley v. AMR Corp., 153 F.3d 5, 13 (2d Cir. 1998); see also Twohy, 758 F.2d at 1193 (“In determining [questions of foreign law], both trial and appellate courts are urged to research and analyze foreign law independently.”).

We have likewise stressed the district court’s independent obligation to adequately ascertain relevant foreign law, even if the parties’ submissions are lacking. See Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036, 1039 (9th Cir. 1999) (noting “it is not novel for an appellate court ... to- determine that a district court performed an inadequate inquiry” into foreign law (citing Twohy, 758 F.2d at 1193)). Independent research, plus the testimony of foreign legal experts, together with extracts of foreign legal materials, “has been and will likely continue to be" the basic mode” of determining foreign law. Id. at 1038. Importantly, such material and testimony may be considered “at any time, whether or not submitted by a party.” Stuart v. United States, 813 F.2d 243, 250 (9th Cir. 1987), rev’d on other grounds by United States v. Stuart, 489 U.S. 353, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989); cf Kaho v. Ilchert, 765 F.2d 877, 881 (9th Cir. 1985) (noting that the traditional' prohibition against considering materials not before an agency does not apply to consideration of foreign legal materials under Rule 44.1).

Yet despite Rule 44.1’s seemingly clear language, federal courts have largely remained hesitant to engage with questions of foreign law as fully and independently as they do with questions of domestic law—confusion and contradiction continue to plague the application of Rule 44.1. See, e.g., Peter Hay, The Use and Determination of Foreign Law in Civil Litigation in the United States, 62 Am. J. Comp. L. Supp. 213, 235 (2014) (noting the lack of uniformity in application of Rule 44.1).

The application of Rule 44.1 has also been beset by semantic sloppiness. Courts continue to refer to the “burden of proving foreign law.” See, e.g., McGee v. Arkel Int’l, LLC, 671 F.3d 539, 546 (5th Cir. 2012) (referencing the plaintiffs “burden of proving foreign law” and requiring that litigants “present to the district court clear proof of the relevant legal principles”-(internal quotations and citations omitted)); Ferrostaal, Inc. v. M/V Sea Phoenix, 447 F.3d 212, 216 (3d Cir. 2006) (explaining that, because Rule 44.1 does not impose a duty on courts to conduct independent research into foreign law, the parties “carry the burden of proving” it). Imposing a burden of proof on the parties is at odds with the mandate of Rule 44.1. To be sure, under Rule 44.1, a party raising a foreign law issue “must give notice by pleading on other writings.” But this nptice is not tantamount to a burden of proof.

In light of the lingering conflicts in the application of Rule 44.1—and in the absence of any guiding precedent from the higher courts—it is unsurprising that uncertainty surrounds the precise issue of whether it is appropriate for a district court to consider foreign legal materials outside of the pleadings in ruling on a motion to dismiss. District courts addressing this question have—predictably— adopted differing approaches. Compare Abdallah v. Int’l Lease Fin. Corp., 2015 A.M.C. 1137, 1160 (C.D. Cal. 2015) (acknowledging practical considerations that “often require” reliance on evidence concerning substance of foreign law at Rule 12(b)(6) stage), with United States v. 591,-161 Pounds of Salmon, More or Less, 687 F.Supp. 525, 526 (W.D. Wash. 1987) (treating a motion to dismiss “in accordance with Fed. R. Civ. P. 12(b) as one for summary judgment,” and explaining reluctance to rule on foreign legal questions without “a more complete picture of the [foreign] legal and regulatory system”).

Since matters outside the pleadings are often required to determine foreign law, summary judgment may appear at first blush to be the appropriate mechanism for dismissing a claim when foreign law applies. Grice v. A/S J. Ludwig Mowinckels, 477 F.Supp. 365, 367 (S.D. Ala. 1979). The continued misplaced emphasis on the parties’ burden of proving foreign law, the frequently intertwined factual questions, and' the sheer complexity of ascertaining foreign law all might superficially support this conclusion. But it would be antithetical to the language and purpose of Rule 44.1 to prohibit courts from considering relevant materials beyond the pleadings in ruling on a Rule 12(b)(6) motion when the claim depends on a determination of foreign law. This does not preclude the possibility that there may be situations where factual matters underlie the legal determination and that, in such a case, summary judgment may be the appropriate procedural mechanism for resolution.

The general prohibition against looking at matters beyond the complaint to resolve a Rule 12(b)(6) motion ensures that parties have adequate notice to present additional evidence and establish whether there are any genuine issues of material fact to be resolved. See, e.g., Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (noting that the rule requiring the conversion of a Rule 12(b)(6) motion to a motion for summary judgment when materials outside the pleadings are considered ensures “that the party against whom the motion to dismiss is made may respond” with evidence of its own). These concerns are not implicated by the consideration of foreign legal materials at the pleading stage. Under Rule 44.1, rulings on foreign law are determinations of law, not of fact. Accordingly, “even differences of opinion on the content, applicability, or interpretation of [a] foreign provision may not be characterized as a ‘genuine issue as to any material fact’_” Banco de Credito Indus., S.A. v. Tesorería General, 990 F.2d 827, 838 (5th Cir. 1993) (quoting John R. Brown, H.1 Ways to Prove Foreign Law, 9 Mar. L. Rev. 179,194 (1984)).

The Rule authorizes courts to conduct independent research outside the parties’ submissions in determining foreign law. Its deliberately “flexible procedures for presenting and utilizing material on issues of foreign law,” Fed. R. Civ. P. 44.1 advisory committee’s note, likewise cut against a determination that district courts should be prohibited from considering relevant foreign legal materials at the motion to dismiss stage.

Importantly, because foreign law interpretation and determination is a question of law, independent judicial research does not implicate the judicial notice and ex parte issues spawned by independent factual research undertaken by a court. See Edmund M. Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 270-72 (1944) (explaining that, while the “judge is unrestricted in his investigation and conclusion” in determining the content of legal rules, “[t]he situation as to disputed and disputable issues of fact is different,” and. the judge is not “permitted to make an independent investigation”); see also Rowe v. Gibson, 798 F.3d 622, 641 (7th. Cir. 2015) (Hamilton, J., dissenting) (noting that looking at facts outside the record “turns the court from a neutral decision-maker into an advocate for one side”); Blunt v. United States, 244 F.2d 355, 365 (D.C. Cir. 1957) (warning that adding to the record “flakes] on the aspect of advocacy”).

Judicial research into domestic law provides an appropriate analog. Although our common law system relies heavily on advocacy by the parties, judges are free to undertake independent legal research beyond the parties’ submissions. It is no revelation that courts look to cases, statutes, regulations, treatises, scholarly articles, legislative history, treaties and other legal materials in figuring out what the law is and resolving legal issues. Independent judicial research into the content of foreign law thus leaves undisturbed a bedrock principle of our adversarial system—that “adversarial testing is the surest route to truth,” and the failure to expose facts to such rigorous testing “can undermine the quality- of [factual] findings.” Brianne J. Gorod, The Adversarial Myth: Appellate Court Extrar-Record Factfinding, 61 Duke L. J. 1, 3, 6 (2011). Rather, determining foreign law—like determining domestic law—requires . “adequate study,” without which there can be neither the “adequate reflection” nor “that fruitful interchange of minds which is indispensable to thoughtful, unhurried decision and its formulation in learned and impressive opinions.” Salve Regina Coll. v. Russell, 499 U.S. 225, 232, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991) (quoting Dick v. N.Y. Life Ins. Co., 359 U.S. 437, 458-59, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959) (Frankfurter, J., dissenting)).

Two of our sister circuits appear to' have tacitly endorsed this interpretation of Rule 44.1, without explicitly addressing the question before us. In Baloco ex rel. Tapia v. Drummond Co., the Eleventh Circuit considered an expert affidavit on Colombian law that had been submitted to the district court as part of a response to a motion to ■ dismiss under Rule 44.1. 640 F.3d 1338, 1349 n.13 (11th Cir. 2011). Similarly, in Twohy, in considering an appeal arising out of a Rule 12(c) motion for a claim arising under Spanish law, the Seventh Circuit chided the district court for considering only “a series of affidavits of foreign law experts concerning issues of Spanish law relevant to the case,” and not “fully me[eting] its duty to ascertain foreign law under Rule 44.1.” 758 F.2d at 1192-93.

Thus, we hold that courts do not transgress the broad boundaries established by Rule 44.1 when considering foreign legal materials—including expert testimony and declarations—at the pleading stage, and the district court here did not err in considering expert declarations on the content of French law in ruling on Wofs/s Rule 12(b)(6) motion,

II. California’s Uniform Recognition Act

The district court erred in concluding that “the award of an astreinte in this case constitutes a penalty for purposes of the [Uniform Recognition Act].” To explain why this is so, we first review the requirements governing the recognition of Foreign-Court monetary judgments under California law and then consider the nature of the astreinte in the judgment at issue. See Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (all questions of law, including questions of foreign law, are reviewed de novo).

California’s Uniform Recognition Act governs the enforcement of foreign-country judgments that (1) grant or deny monetary recovery and (2) are “final, conclusive, and enforceable” under the law of the jurisdiction where rendered. Cal. Civ. Proc. Code § 1715(a). A judgment that constitutes “[a] fine or other penalty,” however, is not cognizable under the statute. Id. § 1715(b)(2). The statutory exclusion of fines or penalties reflects an ancient maxim of international law that “[t]he Courts of no country execute the penal laws of another.” The Antelope, 23 U.S. (10 Wheat.) 66, 123, 6 L.Ed. 268 (1825) (Marshall, C.J.); Hyundai Sec. Co. v. Lee, 232 Cal.App.4th 1379, 182 Cal.Rptr.3d 264, 269 (2015).

The prescription against recognizing or enforcing penal laws focuses on whether the character of the foreign judgment is essentially punitive or compensatory. See, e.g., Restatement (Second) of Conflicts of Laws § 89 & cmt. a (1971) (explaining that the “narrow” prohibition “applies only to actions brought for the purpose of punishing the defendant for a wrong done by him” and “does not apply to actions brought by a private person ... to i'eeover compensation for a loss”); Restatement (Third) of Foreign Relations Law § 483 cmt. b (1987) (“A penal judgment ... is ... primarily punitive rather than compensatory in character.”). The prohibition “reflect[s] a reluctance of courts to subject foreign public law to judicial scrutiny ... combined with reluctance to enforce law that may conflict with the public policy of the forum state_[and] distrust of foreign criminal procedures.” Restatement (Third) of Foreign Relations Law § 483 n.2.

Adopting the test articulated by the Supreme Court in Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123 (1892), the California courts likewise concentrate on the character of a foreign judgment. Java Oil Ltd. v. Sullivan, 168 Cal.App.4th 1178, 86 Cal.Rptr.3d 177, 183 (2008). In Huntington, the Supreme Court explained that determining whether a foreign law is “a penal law, in the international sense, so that it cannot be enforced in the courts of another state, depends upon ... whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act.” 146 U.S. at 673-74, 13 S.Ct. 224. This inquiry entails consideration of whether the harm the foreign judgment seeks to redress is private or public. Private harms “are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals,” whereas public harms “are a breach and violation of public rights and duties, which affect the whole community, considered as a community.” Id. at 668-69, 13 S.Ct. 224 (quoting 3 William Blackstone, Commentaries *2).

The Court acknowledged the elasticity of the terms “penal” and “penalty” in both the British and American systems, noting that, while these terms “[s]trictly and primarily ,,. denote punishment .., imposed and enforced by the state for a crime or offense against its laws,” they also commonly encompass “any extraordinary liability, to which the law subjects a wrongdoer in favor of the person wronged.” Id. at 666-67, 13 S.Ct. 224. The Court emphasized that, for purposes of recognition and enforcement, “[pjenal laws, strictly and properly, are those imposing punishment for an offense committed against the state, and which ... the executive of the state has the power to pardon;” Id. at 667, 13 S.Ct. 224. In contrast, “[statutes giving a private cause of action against the wrongdoer are sometimes spoken of as penal in their nature, but ... neither the liability imposed nor the remedy given is strictly penal.” Id.

The Court cautioned against being misled by nomenclature, emphasizing that the crux of the analysis is not whether a judgment is termed penal or a penalty by “the courts of the [country] in which it was passed, but whether it appears, to the tribunal which is called, upon to enforce it, to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person.” Id. at 683, 13 S,Ct. 224. This .admonition recognizes that translation will always be incomplete, because the “resonances from centuries of legal, political, and literary use” that necessarily accompany any legal term can never be fully transferred by. translation alone. John E. Joseph, Indeterminacy, Translation and the Law, in 8 Translation and the Law 13, 17 (Marshall Morris ed., 1995).

In undertaking the Huntington inquiry, California uses a nuanced balancing test to determine whether the “essential character and effect” of án award is penal—an approach that acknowledges that courts must consider more than how a term is translated to understand the nature of a foreign judgment. The Java Oil test thus looks to a number of factors, including: (1) whether the purpose 'of the award is to compensate an individual-or to “provide an example” or punish “an offense against the public”; (2) whether the award is payable to an individual or to the state or one of its organs; (3) whether the judgment arose in the context of a civil action or through the enforcement of penal laws; and (4) whether the award was a “mandatory, fine, sanction, or multiplier.” Java Oil, 86 Cal.Rptr.3d at 183-84; see also Hyundai, 182 Cal.Rptr.3d at 270-71 (relying on Java Oil factors in determining whether a foreign judgment was a penalty).

No one factor is determinative, and, not surprisingly, the same factors may point in differing directions. In Hyundai, for example, Hyundai Securities sought enforcement of a Korean judgment that included indemnification for a criminal fíne the company had paid on behalf of Ik Chi Lee, its former CEO. 182 Cal.Rptr.3d at 266-67. Lee argued that, because the indemnification order was based on a criminal fine, it was penal in nature and not cognizable under the Act. Id. at 267. The California Court of Appeal disagreed, reasoning that the purpose of the Korean judgment was “to compensate Hyundai for the damages it suffered from having to pay a fine,” and that “the prohibition against the recognition of a judgment based on a fine ... does not include an award to compensate a plaintiff.” Id. at 1387,1389.

III. The Nature of the Astreinte in the French Judgment against Wofsy

With the Java Oil factors in mind, we turn to the nature of the astreinte in the French legal system generally and more particularly in.. the judgment against Wofsy. Heeding our own- advice, we consider the judgment itself, the expert declarations and materials on the astreinte submitted to the district court by de Fontbrune and Wofsy, as well as our own research into American and French law.

At the outset, we note that the astreinte is a “device that may appear rather strange” to common law lawyers. An Introduction to French Law 234 (George A. Bermann & Etienne Picard eds., 2008). It currently occupies a role of considerable procedural and substantive complexity. M.P. Mitchell, Imperium by the Back Door: The Astreinte and the Enforcement of Contractual Obligations in France, 51 U, Toronto Fac. L. Rev. 250, 259 (1993). Unsurprisingly, then, the astreinte cannot be neatly categorized as either essentially penal or wholly civil in nature. It is hybrid, with elements that cut both ways.

To begin, we emphasize that we cannot ascertain whether the astreinte is a “fine or other penalty” simply by turning to translations or dictionary definitions. Citing the Dictionnaire Jmidique Fran-qais-Anglais and the Council of Europe French-English Legal Dictionary, Wofsy’s counsel argued that “astreinte means a fine for ñoncompliance with a judgment.” But the test is not whether astreinte is translated as “fine” or “penalty.” Rather, we must look to “whether it appears, to the tribunal which is called upon to enforce it, to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person.” Huntington, 146 U.S. at 683, 13 S.Ct. 224. Dictionaries may be a starting point, but in this case are of limited utility in looking beneath the surface to determine the “essential character and effect” of the foreign judgment. Indeed, the limitations of terminology for understanding the character and purpose of a foreign award is reflected in the nuanced nature of the Java Oil test. Although the Uniform Recognition Act prohibits recognition of a “fine[] or other penalty,” the Java Oil factors do not rely on this vocabulary to determine what judgments fall within the Act’s exception to enforcement. We must accordingly be cautious about falling back on bald nomenclature as providing a definitive category in lieu of undertaking the in-depth analysis of foreign judgments required by Java Oil.

The declarations of the parties’ French-law experts illustrate the variegated character of the astreinte. The statements of the experts and argument by counsel conjure up an image of one side pointing a finger one way, and the other side pointing a finger in the opposite direction. On the one hand, the Guillou declarations take the position that the astreinte is awarded “independent of damages,” calculated based on the behavior of the defendant rather than injury to the plaintiff. Its purpose is thus not, strictly speaking, to compensate for actual pecuniary harm. Rather, it operates as a sort of “private penalty,” intended to deter and punish noncompliance with the court’s judgment. Although Guillou describes the astreinte as a means to vindicate the public interest in compliance with court orders, she does not suggest that the order was intended to punish an “offense against the public.” Thus, Guillou characterizes the astreinte as a “private penalty” that is a “personal legal measure of constraint.” But of course, invoking the word “penalty” without benchmarking it against the Java Oil analysis does not answer the question.

On the other hand, the Mesnooh declaration states that the astreinte is “imposed by a judge, always for an amount of money, ordering a party which is subject to a court order to do something ... to comply with such order.” An astreinte can thus be awarded only in connection with a valid and enforceable legal duty. According to Mesnooh, the astreinte is a “personal remedy,” payable entirely to the party seeking enforcement of an astreinte, not to the court or any other part of the French State. The amount is “within the discretion of the judge,” and “can be modified before it is reduced to judgment.” Although not “a grant of a civil right to a private person,” the astreinte is not a punishment for a crime against the public, either. It is awarded, rather, “for the sole benefit of’ the party seeking the remedy.

The experts’ recitations, which sometimes overlap, are useful in laying out some of the characteristics of the ast-reinte. However, with the exception of parts of the Mesnooh declaration, they do not provide the answer to our state law inquiry. Additional explanatory materials indicate that French judges devised the astreinte as a “coercive sanction which operates in its own right to secure enforcement of a judgment.” Michael Chester-man, Contempt: In the Common Law but not the Civil Law, 46 Int’l & Comp. L. Q. 521, 545 (1997). The astreinte is now widely used in the French legal system “to obtain the performance of any type of obligation ... for matters civil or commercial, and also in administrative matters including those in which the party owing performance is the state or a public body.” James Gordley & Arthur von Meh-ren, An Introduction to the Comparative Study of Private Law 533 (2006). In this regard, as Guillou noted, astreinte can be seen as analogous to contempt of .court. The protean nature and wide applicability of astreinte warns against a blanket determination that the device is always either punitive or compensatory. Rather, we must consider a particular astreinte in the context in which it was awarded.

Turning to the first Java Oil factor, the context of the French orders here persuades us that the purpose of the ast-reinte awarded to de Fontbrune was not to punish “an offense against the public” or make an example of Wofsy, see 86 Cal. Rptr.3d at 183, but to safeguard de Font-brune’s copyright. The 2001 Judgment prohibited Wofsy from using the Zervos photographs “under penalty of [astreinte] of 10,000 francs” per violation. The court concluded that Wofsy had infringed de Fontbrune’s copyright in the Zervos Catalog in violation of Articles L335-2 and L335-3 of the French Intellectual Property Code. According to these articles “any reproduction by any means of a work of the mind, any edition of writings, musical compositions, drawings, paintings, or any other printed or engraved production made in violation of rules protecting the authors’ right is an infringement: any infringement is an offence.” Nicolas Bouche, Intellectual Property Law in France ¶ 294 (2d ed. 2014). Such infringements “may entail criminal and civil sanctions” as remedies. Id. at ¶ 324. The criminal sanctions include “a term of three years imprisonment and a fíne of EUR 300,000.” Id. at ¶325. We note that the word translated here as “fine” is “amende”—not ast-reinte—in the original French version. Code de la propriété intellectuelle [Intellectual Property - Code] art. L335-2. The civil remedies include both damages and an order requiring “cessation - of the infringing acts.” Bouche, supm, at ¶333. Such an order enjoining the infringing acts may be made, if necessary, under “ast-reinte.” Code de la propriété intellectuelle [Intellectual Property Code] art. L331-1-2. .

In the 2001 Judgment, the Paris Court of Appeal awarded both forms of civil remedies—that is, pecuniary damages for de Fontbrune’s injury and an injunction against future reproductions of the Zervos Catalog images under an astreinte. The court did not, however, impose any of the criminal sanctions provided for in the Intellectual Property Code. Thus, the ast-reinte was not awarded, pursuant to the court’s authority to criminally punish copyright violations under the Intellectual Property Code through- imposing an amende.

The astreinte was awarded separately and apart from the pecuniary damages awarded by both the Paris Court of Appeal and the enforcement judge. The enforcement judge expressly referenced Articles 35 and 36 of the Law of 9 July 1991, pursuant to which any French judge could order liquidation d’astreinte, “taking into consideration the behaviour of the party to whom the injunction has been addressed, and the difficulties that he or she has encountered in executing it.”

Ultimately, the purpose of the ast-reinte was to set a sum, per violation, for Wofsy’s failure to comply with the judicial prohibition on the continued use of de Fontbrune’s copyrighted photographs. In this sense, it may be likened to a civil contempt order. The California Supreme Court has clarified that the primary objéct of civil contempt “is to protect the rights of litigants_ Civil contempt is a forward-looking remedy imposed to coerce compliance with a lawful order of the court.” In re Nolan W., 45 Cal.4th 1217, 91 Cal.Rptr.3d 140, 203 P.3d 454, 466 (2009) (internal quotations and citations omitted). Civil contempt orders are thus “remedial, and for the benefit of the [plaintiff].” Bagwell, 512 U.S. at 828-29, 114 S.Ct. 2552 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797 (1911)). Here, as Guillou pointed out, the astreinte was a “personal legal measure of constraint,” for de Fontbrune’s benefit; in other words “a forward-looking remedy imposed to coerce compliance with” the Paris Court of Appeal’s lawful order to stop Wofsy using de Fontbrune’s copyrighted images.

Cast in another light, the astreinte here may also be seen as fulfilling a function akin to statutory damages in American copyright law, although we acknowledge that de Fontbrune was awarded damages separately. In the U.S. system, a party may opt for an award of statutory damages rather than actual damages. 17 U.S.C. § 504(c)(1). Such damages are intended to induce copyright holders to enforce their copyrights and to deter infring-ers by preventing unjust enrichment, even where actual damages are unproved. Roger D. Blair & Thomas F. Cotter, An Economic Analysis of Damages Rules in Intellectual Property Laiv, 39 Wm. & Mary L. Rev. 1585, 1651-52 (1998). Here, too, the astreinte was awarded without determining the actual amount of pecuniary harm suffered by de Fontbrune as a result of Wofs/s continued use of the Zervos Catalog images. Nevertheless, the purpose of the award was not to punish a harm against the public, but to vindicate de Fontbrune’s personal interest in having his copyright respected and to deter further future infringements by Wofsy.

The remaining Java Oil factors weigh in favor of our conclusion that the astreinte was not essentially penal in nature. Significantly, the astreinte awarded was payable directly to de Fontbrune, rather than to a court or the French state. As the Mesnooh declaration noted, an astreinte creates a “debt belonging to the party which is condemned [to pay the astreinte].” The result is that “the beneficiaries of the underlying award [for damages] becomes a creditor for the amount of the astreinte.” See Francois Chabas, Regime de la Reparation: JurisClasseur Civil Code Article 1382-1386 ¶ 97 (2001).

Turning to the nature of the proceedings, the astreinte here was awarded in the context of a civil action in order to enforce a civil remedy provided for in the French Intellectual Property Code. No criminal or penal proceedings were involved. And, finally, the award was not a mandatory' fine, sanction or multiplier. Indeed, an astreinte’s “effectiveness is ... a function of the choice of the amount which is freely determined by the judge.” Gord-ley & von Mehren, supra, at 532. In fact, the enforcement judge accepted a reduction of the astreinte to 2,000,000 euro, which is consistent with the notion that she retained final discretion to determine the amount. In all, the astreinte was not essentially “a punishment of an offense against the public;” rather, it “afford[ed] a private remedy to [de Fontbrune,] a person injured by the wrongful act.” See Huntington, 146 U.S. at 673-74, 683, 13 S.Ct. 224.

■' Our conclusion is buttressed by contrasting the nature of the astreinte awarded here with another case - in which our court considered in dicta the character of an astreinte imposed under French criminal law and in a different context. The case of Yahoo! Inc. v. La Ligue Contre Le Racisme Et L’Antisemitisme arose from the availability in France of Nazi-related memorabilia on Yahool’s auction site. 433 F.3d 1199, 1202 (9th Cir. 2006) (en banc) (per curiam). A French court issued an injunction ordering Yahoo! to remove access to the memorabilia or pay 100,000 euros per day of delay. Id. at 1203. Yahoo! claimed that “the threat of a monetary penalty h[ung over it] like the sword of Damocles.” Id. at 1218. We stated that “even if the French court were to impose a monetary penalty against Yahoo!,” it is “exceedingly unlikely” that it would be an enforceable penalty under the Uniform Recognition Act. Id. at 1218.

Four factors suggested that the ast-reinte at issue in Yahoo! was penal rather than compensatory in . character. First, the word astreinte was consistently translated as “penalty.” Id. at 12Í9. Second, the sanctions were imposed for violations of the French Penal Code, “which declares it a ‘crime’ to exhibit or display Nazi emblems, and which prescribes a set of ‘criminal penalties,’ including fines.” Id. In other words, the penalty in Yahoo! was imposed for “a breach and violation of public rights and duties, which affect the whole community, considered as a community.” Huntington, 146 U.S. at 668-69, 13 S.Ct. 224 (quoting 3 William Blackstone, Commentaries *2). Third, the penalties imposed by the French court were expressly intended to deter Yahoo! from creating a “threat to internal public order”—obviously, an issue of public interest affecting the whole community, not solely related to a private dispute. Yahoo!, 433 F.3d at 1220. As we noted, such judgments “designed to deter conduct that constitutes a threat to the public order are typically penal in nature.” Id. Finally, the astreinte was payable to the government and not a private individual or group—further underscoring the public nature of award. Id. Here, in contrast, the astreinte was imposed in the context of a civil action for contravening an injunction against the use of copyrighted materials and was payable to the individual copyright holder.

For the foregoing reasons, we hold that the astreinte awarded by the French courts to de Fontbrune falls within the Uniform Recognition Act as a judgment that “[gjrants ... a sum of money.” Cal. Civ. Proc. Code § 1715(a)(1). In this case» the astreinte was not a “fine or other penalty” for purposes of the Act, id. § 1715(b)(2), and accordingly the district court erred in concluding otherwise.

REVERSED AND REMANDED.

      . A catalogue raisonné is "[t]he complete published catalogue of an artist’s work. Such catalogues ... are normally regarded as standard publications on the subject.” The Concise Oxford Dictionary of Art Terms Online (Michael Clarice & Deborah Clarke eds., 2d ed. 2010).

      . The original judgments are in French. These translations come from the translated versions provided by de Fontbrune.

      . While his appeal was pending, de Font-brune died. His wife and children filed a motion for substitution of party to continue these proceedings as de Fontbrune’s successors in interest pursuant to California Civil Procedure Code § 377.32. We grant this motion. For convenience, we refer to the appellants collectively as “de Fontbrune.”

      . The functional similarity between the ast-reinte and contempt of court of course does not answer whether the astreinte here is designed to "punish an offense against the public,” or is in the nature of a "grant of a civil right to a private party.” Contempt may be civil or penal, and even within our own system, "parsing coercive civil and criminal contempt” orders is no easy matter. Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 836, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). Superficial comparisons between judicial devices in divergent legal systems cannot answer that question.

      , We note that the Law of 9 July 1991 was modified in 1992 and abrogated in 2011, See Loi 92-644 du 13 juillet 1992, Journal Officiel de la République Frangaise, July 14, 1992, art. 3; Ordonnance 2011-1895 du 19 décem-bre 2011, Journal Officiel de la République Frangaise, Dec. 20, 2011, art. 4.

      . While the French characterization of the astreinte is not determinative of whether the astreinte is penal or remedial under U.S. law, we note that our conclusion is reinforced by a décision of the French high court noting the civil nature of the device. The French case centered on the enforceability of a $13 million penally imposed on an American citizen and French resident, Richard Blech, for his role in a Ponzi scheme. The scheme resulted in an estimated $200 million in damages to the victims. S.E.C. v. Credit Bancorp, Ltd., No. 99 CIV 11395 RWS, 2000 WL 1752979 (S.D.N.Y. 2000). A U.S. court ordered Blech to cooperate with the receiver appointed to trace Blech’s assets under penalty of $100 dollars per day, doubled each day for noncompliance. Order, Credit Bancorp, No. 99 CIV 11395 RWS, 2000 WL 1752979 (S.D.N.Y. 2000) (No. 188). Four months later, the receiver applied for an accounting and the U.S. court ordered Blech to pay approximately $13 million in penalties. Order, Credit Ban-corp, No. 99 CIV 11395 RWS, 2000 WL 1752979 (S.D.N.Y. 2000) (No. 333). The receiver sought to enforce the award in France. In reasoning that mirrors oür own, the Coivr de cassation characterized the $13 million penalty as an astreinte, and concluded that, because an astreinte is civil in. nature, the penalty was enforceable. See Cour de cassation [Cass.] [supreme court for judicial matters] le civ., Jan. 28, 2009, Bull. civ. I, No. 15 (Fr.) (calling the $100 daily penalty "une ast-reinte” and explaining "la condemnation ... au paiement d’une somme. d’argent & titre de sanction du non respect,d’une injonction du juge étranger constituait une décision de nature civile”). For a translation of the relevant portions of the French opinion, see Benjamin West Janke & Frangois-Xavier Licari, Enforcing Punitive Damage Awards in France after Fountaine Pajot, 60 Am. J. Comp. L. 775, 799 (2012).

      . We emphasize again that translation alone is insufficient to capture the "essential character and effect” of a foreign judgment. The translation of astreinte as “penalty” in the French order at issue in Yahoo! does not compel a conclusion that the astreinte at issue here is essentially penal in character. We decline to hold that an astreinte is necessarily penal in nature; instead, future courts should be left to consider under Java Oil whether an astreinte operates to punish or to compensate in the context of a particular case.


author: THOMAS,- Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Melvin MARTINEZ-LOPEZ, AKA Jorge Lopez, AKA Melvin Miscael Martinez, AKA Miguel Angel Rodriguez, AKA Manuel Rodriguez-Pena, Defendant-Appellant.
    No. 14-50014
    United States Court of Appeals, Ninth Circuit.
    Filed September 26, 2016
    Jean-Claude Andre, L. Ashley Aull, Assistant U.S. Attorneys, Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
    Matthew Brady Larsen, David Lee Menninger, Deputy Federal Public Defenders, FPDCA—Federal Public Defender’s Office (Los Angeles), Los Angeles, CA, for Defendant-Appellant.
   ORDER

THOMAS,- Chief Judge:

Upon the vote of a majority of nonre-cused active judges, it is ordered that this case be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3.

Judge Ikuta did not participate in the deliberations or vote in this case.