U.S. State Dept. Rejects Request from Nigerian Government to Support Its Sovereign Immunity Defense in ATS and TVPA Case

Ten plaintiffs from the Indigenous People of Biafra (IPOB) have filed a federal lawsuit against 16 Nigerian officials for their complicity in the alleged extrajudicial killings of hundreds of its members who protested in the wake of arrest and detention of their leader, Mazi Nnamdi Kanu, in 2016.

The lawsuit is grounded on the Alien Tort Statute and the Torture Victims Protection Act.   Both laws allow U.S. courts to assert long-arm jurisdiction beyond America’s borders.

The defendants have moved to dismiss the suit based on the act of state doctrine, lack of jurisdiction and sovereign immunity.  In opposition, the plaintiffs have noted that the U.S. State Department rejected a request from the Nigerian government to intervene in the action and to recognize the defendants’ claims of sovereign immunity.

The case — John Doe, et al v. Tukur Yusuf Buratai et al, No. 17-Civ-01033 (ESH) —  is pending before the United States District Court for the District of Columbia.


Man Sued in U.S. Court for Allegedly Leading Massacre that Killed 600 in Liberia in 1990

A federal lawsuit filed today under the Torture Victim Protection Act (TVPA) accuses Moses W. Thomas — who allegedly was a commander of a specialized unit in the Liberian military — of directing an assault on St. Peter’s Lutheran Church in the Liberian capital of Monrovia in July 1990, during Liberia’s first civil war.  The assault killed approximately 600 unarmed men, women and children.

The lawsuit was filed in U.S. District Court in Philadelphia on behalf of four of the church massacre’s survivors.  The suit does not identify the four plaintiffs, all Liberian citizens still residing there, because they fear retribution.  The suit alleges that Thomas knew the church was a shelter for civilians, and that he told dozens of soldiers that “their mission was to kill all the people in the Lutheran Church compound regardless of whether or not they were rebels.”

According to the lawsuit, Thomas fled Liberia and entered the U.S. in 2002, where he applied for immigration status under a program meant to assist victims of war crimes.  He now lives in suburban Philadelphia.

The name of the case is Jane W., et al. v. Moses W. Thomas, 18-Civ-569 (PBT) (E.D.Pa).

Germany Finally Appears in Case Based on Colonial-Era Genocide in Namibia … And Promptly Moves to Dismiss

Between 1904 and 1907, the German Empire engaged in a campaign of racial extermination in German South West Africa, which today is the Republic of Namibia.  Upwards of100,000 Herero people and 10,000 Nama people were exterminated by the Germans.  It is considered the first genocide of the 20th century.

In early 2017, members of the Herero and Nama filed a class action lawsuit in the Southern District of New York against Germany under the Alien Tort Statute, asserting that German colonial troops were responsible for the deaths, as well as for the taking and expropriation of Herero and Nama lands and other property without compensation, in violation of international law.  The name of the case is Rukoro, et al. v. Federal Republic of Germany.

The plaintiffs made several attempts to serve Germany through The Hague Service Convention, but Germany refused refused to accept service on procedural grounds. The plaintiffs consequently initiated diplomatic service on Germany by asking the U.S. State Department to send the summons and complaint directly to the German Foreign Ministry under diplomatic cover.  After their formal review of the matter, the U.S. State Department completed its service at the end of last year.

After fighting service of the summons and complaint for all of last year, Germany’ has recently accepted service of the complaint and appointed counsel to appear in the case.   On January 12, 2018, Germany filed a motion to dismiss, claiming that the court lacked jurisdiction to hear the case.  The plaintiffs’ deadline for filing an amended complaint is February 14, 2018.


2nd Circuit Vacates Verdict in ATA Case against Arab Bank Due to Improper Jury Instructions

The U.S. Court of Appeals for the Second Circuit Friday reversed a 2014 verdict that found the Jordan-based Arab Bank liable under the Anti-Terrorism Act for three separate Hamas-associated attacks in Israel between 2002 and 2003.  The court, in Linde v. Arab Bank, PLC, found that the jury instructions had incorrectly allowed for a guilty verdict simply because the Arab Bank handled financial transactions for Hamas and its supporters.   At the trial, the Arab Bank was found to have been used by Hamas to send payments to families of suicide bombers.

In reversing the verdict, the Second Circuit panel found that “the provision of material support to a terrorist organization does not invariably equate to an act of international terrorism,” and that in order to be found liable under the ATA, the person or entity providing the support must also be found to be involved in an act that constitutes international terrorism.

Although the Second Circuit remanded the case for a retrial, the parties had reached a settlement agreement before the decision was handed down.  According to the settlement agreement, the amount of the payout turned on whether the Second Circuit affirmed or reversed the verdict.  Thus, even with the reversal, the 597 plaintiffs are still set to receive payment from the Arab Bank.  While the specific terms of the agreement remain secret, media accounts relate that the Arab Bank has set aside at least $1 billion to cover its obligations under the settlement.


Serving Process at the Embassy in FSIA Cases…..Not So Fast, Says the Fourth Circuit

Under the Foreign Sovereign Immunities Act (FSIA),  American citizens are permitted to sue the limited number of foreign states that the U.S. State Department has designated as “State Sponsors of Terrorism” in a United States court if the plaintiff’s injury was caused by the state’s support of a terrorist organization.

But how do you get personal jurisdiction over the foreign state?

The Fourth Circuit, in Kumar v. Sudan, recently held that the FSIA does not permit service of process by mail to a foreign government’s embassy in the United States and consequently the Fourth Circuit vacated a $34 million default judgment entered against Sudan for damages related to Sudan’s alleged provision of material support to the al-Qaeda operatives who carried out the bombing of the U.S.S. Cole in 2000.

The FSIA provides that such service may be effectuated by:

“Sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.”

In Kumar, plaintiffs attempted to serve the government of Sudan under by mailing the relevant materials to the head of the Sudanese ministry of foreign affairs at the address of the Sudanese embassy in Washington DC. The Fourth Circuit held that this method of service did not comply with the requirements of the statute.

Although the court acknowledged that the statute “does not specify a geographic location for the service of process,” it reasoned that service at the embassy was likely impermissible under the plain language statute because the head of a foreign government’s ministry of foreign affairs “is rarely – if ever – present” at their embassy.

The court found that the FSIA’s legislative history — namely a congressional report that noted that the statute was designed to eliminate service “to” or “on” an embassy in order to avoid inconsistencies with the United States’ obligation to ensure the “inviolability” of foreign embassies under the Vienna Convention — supported the conclusion that service by mail to a foreign embassy was insufficient to obtain personal jurisdiction in an FSIA action.

An amicus brief from the U.S. government took the position that service at an embassy does not satisfy the FSIA’s service requirements, and that such service is, in fact, inconsistent with the Vienna Convention.  And,the government’s brief noted that the State Department routinely takes the position that personal jurisdiction is lacking when process is served on it through US embassies overseas.

Notably, a petition for certiorari on whether the FSIA permits service on a foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States is currently pending before the U.S. Supreme Court in Sudan v. Harrison.  The Kumar Court’s decision is in line with decisions out of the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits, but in direct conflict with the 2nd Circuit, which held that mailing process to the minister of foreign affairs via the relevant embassy in the United States was permissible because it “could reasonably be expected to result in delivery to the intended person.”

Dismissal of Anti-Terrorism Act Lawsuit against Twitter is Affirmed by the Ninth Circuit … but not on Section 230 Immunity Grounds

On January 31, 2018, the Ninth Circuit Court of Appeals in Fields v. Twitter, Inc. ruled unanimously to uphold a lower court’s dismissal of an Anti-Terrorism Act lawsuit that had been brought against Twitter after two American contractors were killed in Jordan in 2015 in an ISIS-related attack.  The plaintiffs in the case — the families of the victims — alleged that Twitter was responsible for the deaths because it had provided “material support” to the Islamic State by “knowingly and recklessly provid[ing] ISIS with accounts on its social network” and that “[t]hrough this provision of material support, Twitter enabled ISIS to acquire the resources needed to carry out numerous terrorist attacks.”  Under federal law, “material support”  is defined statutorily to include, among other things, any “service” and “communications equipment.” 18 U.S.C. §§ 2339A(b), 2339B(g)(4).

Specifically, the plaintiffs argued that ISIS used Twitter’s Direct Messaging feature to communicate with potential recruits and “for fundraising and operational purposes.”  Also, Twitter’s platform allowed ISIS to recruit publicly, by posting “instructional guidelines and promotional videos, referred to as ‘mujatweets.’”  According to the plaintiffs, within the year preceding August 2016, Twitter allowed ISIS to attract “more than 30,000 foreign recruits,” and that ISIS used Twitter to fundraise and to “spread propaganda and incite fear by posting graphic photos and videos of its terrorist feats.”

The lower court dismissed the action on the basis that Section 230 of the Communications Decency Act provides immunity from civil liability to operators of internet sites that host user-generated content.  Although the plaintiffs had contended that Twitter “materially supported” ISIS by permitting ISIS members to sign up for Twitter accounts — conduct that had nothing to do with the content that ISIS members published on the site —  the lower court rejected this argument, stating:

“[P]laintiffs attempt to plead around the CDA by asserting that Twitter provided ISIS with material support by allowing ISIS members to sign up for accounts, not by allowing them to publish content. But no amount of careful pleading can change the fact that, in substance, plaintiffs aim to hold Twitter liable as a publisher or speaker of ISIS’s hateful rhetoric, and that such liability is barred by the CDA.”

The Ninth Circuit affirmed the dismissal of the case, but did so without reaching the question of whether Section 230 protects Twitter from liability.  Instead, the Ninth Circuit found that the plaintiffs had not pleaded that Twitter’s provision of communication equipment to ISIS, in the form of Twitter accounts and direct messaging services, had any direct relationship with the injuries that the plaintiffs suffered.  The court held that the plaintiff’s complaint

“At most … establishe[d] that Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts. But [it did] not articulate any connection between Twitter’s provision of this aid and Plaintiffs–Appellants’ injuries.”

Thus, outside of the  it still remains an open question whether Section 230 of the the CDA protects operators of internet sites that host user-generated content from liability for materially supporting terrorist activity by providing terrorist organizations with a social media platform through which they can recruit members, raise money, and spread their hateful messages.

The Fields plaintiffs have not indicated whether they will petition the Ninth Circuit for a rehearing or whether they will seek review by the Supreme Court.

Ameer Benno Presents Lawline’s Second Annual SCOTUS Preview!

Last week, Erica Dubno and I presented Lawline’s Second Annual SCOTUS Preview.  We addressed the following critical cases that are to be decided by the Supreme Court of the United States in its 2018 Term:

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission
  • Gill v. Whitford
  • Class v. U.S.
  • Jesner v. Arab Bank
  • McCoy v. Louisiana
  • Christie v. NCAA
  • Carpenter v. U.S.
  • Jennings v. Rodriguez

If you missed the live webcast, you can watch the two-hour presentation On Demand by clicking here!

Phillipine Court of Appeals Refuses to Enforce $2 Billion Judgment Awarded by a U.S. Court in ATS and TVPA Case

The Court of Appeals of the Philippines has upheld its earlier decision against the enforcement of a Hawaii federal district court’s judgment granting Martial Law victims under the Marcos regime almost $2 billion in damages.

In refusing to enforce the judgment, the Philippines appellate court held that the case, which was a class action suit filed by 10,000 victims against the Marcos estate, gave “no opportunity for the … Estate [of former dictator Ferdinand Marcos] to confront each and every claimant,” and therefore the judgment was obtained in violation of Marcos’ constitutional due process rights.  The court declared that “rules of comity should not be made to prevail over our constitution.”

The Court of Appeals also concluded that the judgment against Marcos’ estate was “constitutionally infirm” because, although the complaint was filed under the Alien Torts Statute, the judgment was imposed under the Torture Victim Protection Act.

Chiquita Trial Set to Start in Colombian Terror Case Brought Under Anti-Terrorism Act

Trial is set to begin next month in the case of six Americans killed in the 1990s by the Columbian terrorist group Fuerzas Armadas Revolucionarias de Colombia, or FARC.  The plaintiffs are seeking to hold banana company Chiquita Brands International liable for the deaths because it allegedly paid the terrorist group about $288,000 over the course of nine years.  The lawsuit alleges that the payments constituted material support to the terrorist group, which is prohibited under the federal Anti-Terrorism Act.  The plaintiffs claim that Chiquita made the payments because it to assist it in expanding banana operations in Colombia.

U.S. District Judge Kenneth Marra declared that “[g]iven the widely reported news relating to the decades-long civil war in Colombia, and emergence of notoriously violent guerrilla groups in the context of that war, a reasonable juror could conclude that giving money to Colombian guerrillas, having no function other than the perpetration of violence, would enhance the terror capabilities of the guerrillas and lead to more violence,” and that the facts as alleged support the idea that Chiquita knew its payments would be used to fund kidnappings and murders.

In addition to the Anti-Terrorism Act claims of the six murdered Americans, families of Colombian nationals also filed suit against Chiquita under the Alien Tort Statute.  Those claims are in the discovery stage, however, and are not likely to go to trial for at least another year.

Notably, Chiquita pleaded guilty in 2007 to funding a different Colombian guerrilla group, the Autodefensas Unidas de Colombia, and paid a $25 million fine.

The trial is scheduled to begin on February 5, and to last six weeks.

Rubin v. Islamic Republic of Iran — SCOTUS to weigh in on whether terror victims can collect on judgments against state-sponsors of terrorism

In September 1997, three Hamas suicide bombers entered a crowded pedestrian mall in Jerusalem and blew themselves up, killing and injuring many people. Eight plaintiffs – comprised of victims or family members of victims of the Jerusalem attack – filed suit against the Islamic Republic of Iran alleging liability on the basis that Iran’s government, as a U.S-designated state sponsor of terror providing support to Hamas, were responsible for the attack.

In 2003, the U.S. District Court for the District of Columbia entered a default judgment in favor of the plaintiffs in the amount of $71.5 million, which Iran did not pay. In an effort to collect the $71.5 million, the plaintiffs initiated numerous other cases across the country over the course of 13 years as creditors attempting to seize and attach on Iranian assets located inside the United States.

The plaintiffs sought to seize four collections of ancient Persian artifacts, including a collection of tablets containing some of the oldest writings in the world – the Persepolis tablets.  These artifacts, which are allegedly owned by Iran, were loaned to Chicago’s Field Museum of Natural History and the Oriental Institute at the University of Chicago.

The District Court held, and the Seventh Circuit Court of Appeals agreed, that although the Foreign Sovereign Immunities Act (FSIA) allows plaintiffs to seize the property of a foreign state-sponsor of terror that is “used for a commercial activity in the United States,” the law requires the property to be used by the foreign government itself, not a third party like the museums here.

The Ninth Circuit, Second Circuit, and District of Columbia Circuits Court of Appeals, in separate cases, have all previously held that terror victims are able to attach and execute on any asset of a foreign state sponsor of terror.

The U.S. Supreme Court must now resolve the split among the Circuits and resolve a singular question: can United States citizen victims of terror sue foreign countries designated as state sponsors of terror, win judgments for money damages, and seize and sell ANY property of the foreign country to satisfy the judgment?

The plaintiffs argue that “private lawsuits brought directly against designated state sponsors of terror like” Iran have been “one of the most effective civil terror-fighting tools,” and that allowing the 7th Circuit’s ruling to stand “would thwart many such enforcement efforts, shielding assets that Iran and other state sponsors of terror hold in the United States.”

Oral argument was held on December 4th.

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