Justia U.S. 2nd Circuit Court of Appeals Opinion Summaries

Plaintiffs filed suit under the Anti-Terrorism Act (ATA), 18 U.S.C. 2333(a), the Alien Tort Statute Act (ATS), 28 U.S.C. 1350, and federal common law, seeking judgments against Arab Bank for allegedly financing and facilitating the activities of organizations that committed the attacks that caused plaintiffsʹ injuries. The district court entered judgments on the pleadings as to the ATS claims. On appeal, plaintiffs argued principally that this Circuitʹs opinion in Kiobel v. Royal Dutch Petroleum Co. (Kiobel I), when analyzed in light of the Supreme Courtʹs decision in Kiobel II, which was affirmed on other grounds, is no longer ʺgood law,ʺ or at least, does not control this case. The court declined to conclude that Kiobel II overruled Kiobel I on the issue of corporate liability under the ATS. The court noted that Kiobel II appears to suggest that the ATS allows for some degree of corporate liability. The court went on to say that one panelʹs overruling of the holding of a case decided by a previous panel is perilous. The court affirmed on the basis of Kiobel I. Finally, the court concluded that the district court acted within its discretion in declining to permit the plaintiffs to amend their complaints. View "Jesner v. Arab Bank" on Justia Law

Petitioner, a citizen of the United Kingdom who resides in Northern Ireland, appealed from the denial of her petition filed under the International Child Abduction Remedies Act (ICARA), 22 U.S.C. 9001 et seq. Respondents filed a motion to dismiss the appeal as moot, claiming that a New York court's custody determination resolved the parties dispute. The court denied the motion to dismiss where holding that the petition is moot because respondents received a favorable custody determination in a potentially friendlier New York court could encourage the jurisdictional gerrymandering that the Hague Convention was designed to prevent. View "Tann v. Bennett" on Justia Law

Plaintiffs, injured sailors and their spouses, filed suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., alleging that al Qaeda was responsible for the attack of the U.S.S. Cole and that the Republic of Sudan had provided material support to al Qaeda. Plaintiffs subsequently registered the default judgment and then sought to enforce it against funds held by New York banks. The district court issued three turnover orders. The court affirmed and held that (1) service of process on the Sudanese Minister of Foreign Affairs via the Sudanese Embassy in Washington, D.C., complied with the FSIAʹs requirement that service be sent to the head of the ministry of foreign affairs, and (2) the District Court did not err in issuing the turnover orders without first obtaining either a license from the Treasury Departmentʹs Office of Foreign Assets Control or a Statement of Interest from the Department. View "Harrison v. Republic of Sudan" on Justia Law

Plaintiffs, owner of Fiscal Agency Agreement (FAA) bonds that were not restructured, filed suit against BCRA seeking to recover their unpaid principal and interest. The district court held that the FAA's express waiver of sovereign immunity, pursuant to 28 U.S.C. 1605(a)(1), also waived BCRA's immunity because BCRA is Argentina’s “alter ego.” The district court further held that BCRA’s use of its account with the Federal Reserve Bank of New York (FRBNY) constituted “commercial activity” in the United States, which waived BCRA’s sovereign immunity under 28 U.S.C. 1605(a)(2). The court concluded that it has jurisdiction over the appeal under the collateral-order doctrine; Argentina’s sovereign‐immunity waiver in the FAA may not be imputed to also waive BCRA’s independent sovereign immunity; and BCRA’s use of its FRBNY account is too incidental to the gravamen of plaintiffs’ claim to serve as the basis for waiving BCRA’s sovereign immunity under the commercial‐activity exception to the FSIA. Accordingly, the court reversed and remanded with instructions to dismiss the complaint. View "EM Ltd. v. Banco Central de la Republica Argentina" on Justia Law

Plaintiffs, investment funds, filed suit seeking, by ex parte application, to discover certain documents from the defendant American and international accounting firms relating to audits conducted by their Middle Eastern affiliates. 28 U.S.C. 1782 provides assistance to litigants in proceedings before foreign and international tribunals. The statute authorizes a district court, “upon the application of any interested person,” to order a party “found” in the judicial district in which the court sits to produce discovery “for use” in a foreign proceeding. The court concluded that (1) assuming arguendo that the funds were “interested person[s]” in ongoing foreign proceedings, the funds did not establish that the evidence they sought was “for use” in those proceedings; and (2) the district court did not err in finding that additional proceedings that the funds asserted they intended to initiate were not “within reasonable contemplation” at the time the application was made. Accordingly, the court affirmed the district court's denial of the application. View "Certain Funds v. KPMG LLP" on Justia Law

Plaintiffs filed suit under the Alien Tort Statute (ATS), 28 U.S.C. 1350, against various corporations for allegedly aiding and abetting crimes committed during apartheid by the South African government against South Africans within South Africa's sovereign territory. The court held that knowledge of or complicity in the perpetration of a crime under the law of nations (customary international law) - absent evidence that a defendant purposefully facilitated the commission of that crime - is insufficient to establish a claim of aiding and abetting liability under the ATS; it is not a violation of the law of nations to bid on, and lose, a contract that arguably would help a sovereign government perpetrate an asserted violation of the law of nations; allegations of general corporate supervision are insufficient to rebut the presumption against extraterritoriality and establish aiding and abetting liability under the ATS; and, in this case, plaintiffs’ amended pleadings do not establish federal jurisdiction under the ATS because they do not plausibly allege that defendants themselves engaged in any “relevant conduct” within the United States to overcome the presumption against extraterritorial application of the ATS. The court affirmed the judgment of the district court. View "Balintulo v. Ford Motor Co." on Justia Law

Plaintiffs filed suit under the Alien Tort Statute (ATS), 28 U.S.C. 1350, against various corporations for allegedly aiding and abetting crimes committed during apartheid by the South African government against South Africans within South Africa's sovereign territory. The court held that knowledge of or complicity in the perpetration of a crime under the law of nations (customary international law) - absent evidence that a defendant purposefully facilitated the commission of that crime - is insufficient to establish a claim of aiding and abetting liability under the ATS; it is not a violation of the law of nations to bid on, and lose, a contract that arguably would help a sovereign government perpetrate an asserted violation of the law of nations; allegations of general corporate supervision are insufficient to rebut the presumption against extraterritoriality and establish aiding and abetting liability under the ATS; and, in this case, plaintiffs’ amended pleadings do not establish federal jurisdiction under the ATS because they do not plausibly allege that defendants themselves engaged in any “relevant conduct” within the United States to overcome the presumption against extraterritorial application of the ATS. The court affirmed the judgment of the district court. View "Balintulo v. Ford Motor Co." on Justia Law

Defendant, while in Venezuela, was convicted in absentia in Colombia of drug manufacturing and trafficking. Defendant was later extradited from Venezuela to Colombia and then the United States later transmitted a formal request to Colombia for the arrest and extradition of defendant to face the charge of conspiracy to manufacture and import five kilograms or more of cocaine into the United States. Defendant subsequently pled guilty to the conspiracy count and was sentenced to 648 months imprisonment, as well as fined $1 million. Defendant, currently 46 years old, challenged his sentence on the ground that it violates the United States government’s assurance that “a sentence of life imprisonment will not be sought or imposed” because the sentence exceeds defendant's life expectancy. The court concluded that any individual right that defendant may have under the terms of his extradition is only derivative through the state. Therefore, defendant would only have prudential standing to raise the claim that his sentence violated the terms of his extradition if Colombia first makes an official protest. Because defendant lacked prudential standing in this case, the court affirmed the judgment. View "United States v. Suarez" on Justia Law

From 1987 to 2001, Bengis and Noll engaged in a scheme to harvest large quantities of South Coast and West Coast rock lobsters from South African waters for export to the United States in violation of both South African and U.S. law. Defendants, through their company, Hout Bay, harvested rock lobsters in amounts that exceeded the South African Department of Marine and Coastal Management’s quotas. In 2001, South Africa seized a container of unlawfully harvested lobsters, declined to prosecute the individuals, but charged Hout Bay with overfishing. Bengis pleaded guilty on behalf of Hout Bay. South Africa cooperated with a parallel investigation conducted by the United States. The two pleaded guilty to conspiracy to commit smuggling and violate the Lacey Act, which prohibits trade in illegally taken fish and wildlife, and to substantive violations of the Lacey Act. Bengis pleaded guilty to conspiracy to violate the Lacey Act. The district court entered a restitution order requiring the defendants to pay $22,446,720 to South Africa. The Second Circuit affirmed, except with respect to the extent of Bengis’s liability, rejecting an argument the restitution order violated their Sixth Amendment rights. View "United States v. Bengis" on Justia Law

Appellee, a Swiss criminal complainant, sought from appellants the production of documents relating to the examination of Rajiv Jaitly to provide to a Swiss investigating magistrate overseeing a criminal inquiry into a Bernard Madoff feeder fund in Switzerland. At issue was whether 28 U.S.C. 1782, which authorizes federal courts to order document production for use in certain foreign proceedings, permits discovery for use in a foreign criminal investigation conducted by a foreign investigating magistrate. The court held, based on the plain reading of the statute, as well as the statute's legislative history, that the statute applies to a foreign criminal investigation involving an investigating magistrate seeking documents in the United States. Accordingly, the court affirmed the district court's order. View "Optimal Investment Serv. v. Berlamont" on Justia Law