[00:00:27] Speaker 03:
May it please the court, Edward McAllister of the Perlis law firm for the appellants.

[00:00:31] Speaker 03:
The Anti-Terrorism Clarification Act is only the latest in a long series of laws passed by Congress to deal with and protect the American people from acts of terrorism supported or sponsored by the PA and the PLO.

[00:00:45] Speaker 03:
Also this year, the Taylor Force Act was passed, which requires the PA and the PLO to cease payments to individuals who have been convicted of crimes against Israelis or Americans and to take credible steps to prevent acts of terrorism within their jurisdiction.

[00:01:01] Speaker 03:
The ATCA was passed unanimously by both chambers of Congress and then signed immediately by the president.

[00:01:09] Speaker 03:
The purpose of the ATCA is to enable Americans to access to courts to bring to justice the terrorists and their supporters who harm them.

[00:01:19] Speaker 03:
This is to facilitate the Anti-Terrorism Act, which was passed in 1991, and the case below is brought under the Anti-Terrorism Act.

[00:01:27] Speaker 03:
The purpose and the goal of the Anti-Terrorism Act

[00:01:29] Speaker 03:
was to stir terrorism by financially penalizing terrorists and their supporters by financially compensating their victims.

[00:01:37] Speaker 01:
We still have some factual uncertainty whether it will apply.

[00:01:43] Speaker 03:
Yes, Your Honor.

[00:01:46] Speaker 03:
What we would say is that we have identified, according to public records, a single financial account at least, which continues to float to the PA and the PLO.

[00:01:56] Speaker 03:
It's an INCEL account, which qualifies under the ATCA.

[00:02:01] Speaker 01:
Right, but suppose they stop taking Foreign Assistance Act funds.

[00:02:06] Speaker 03:
We have no reason to believe they will.

[00:02:08] Speaker 01:
Their briefs... Maybe yes, maybe no.

[00:02:10] Speaker 01:
My only point is we don't know yet.

[00:02:13] Speaker 01:
That's correct.

[00:02:13] Speaker 01:
Which seems we can't, at least as of right now,

[00:02:19] Speaker 03:
rule in your favor.

[00:02:39] Speaker 03:
There are two elements of the statute.

[00:02:41] Speaker 03:
One is whether the PA or the PLO are establishing, maintaining, or procuring an office or facility of any kind.

[00:02:49] Speaker 03:
And two is whether they're accepting aid under certain programs.

[00:02:53] Speaker 03:
And the status quo currently is that they are qualified under both components.

[00:02:58] Speaker 03:
But from their briefs, we don't know what the truth of the matter will be on January 31st.

[00:03:02] Speaker 01:
And the office is?

[00:03:05] Speaker 01:
An office in New York associated with United Nations activities?

[00:03:11] Speaker 03:
Yes, but the statute itself says maintenance of an office, which is more than just simply operating an office.

[00:03:21] Speaker 06:
I'm sorry, exactly what state you're drawing there.

[00:03:25] Speaker 03:
The language used in the ATCAs is quite broad.

[00:03:29] Speaker 03:
It's maintenance, establishment, or procurement of any office or facility.

[00:03:34] Speaker 03:
The PA would argue that the mere operation of the mission in New York is not a contact that can be taken into effect because it's there for the purpose of the peace process and under the United Nations.

[00:03:48] Speaker 03:
However, the act is drawn much more broadly than that, and we believe that we could find expenditure of funds revolving around the presence of the mission, which were qualified under the ATCA.

[00:03:59] Speaker 03:
But that is an issue that would probably be best decided by further fact-finding.

[00:04:05] Speaker 01:
Is there any argument that insofar as that office functions like an embassy, it's not within the jurisdiction of the United States?

[00:04:17] Speaker 03:
Your Honor.

[00:04:18] Speaker 03:
We would have to conduct fact-finding on that issue.

[00:04:22] Speaker 03:
We don't have that.

[00:04:23] Speaker 01:
I'm saying, assume it functions exactly like an embassy.

[00:04:28] Speaker 01:
Would that office be, I think this is a legal question, right?

[00:04:31] Speaker 01:
I mean, is the, whatever, United Kingdom's

[00:04:37] Speaker 01:
office in New York for their United Nations delegation within the jurisdiction of the United States, or is it different because of its diplomatic status?

[00:04:49] Speaker 03:
I don't know.

[00:04:49] Speaker 03:
I apologize for interrupting you.

[00:04:51] Speaker 03:
In the 90s, in the Klemhoffer case, the court there found that the mission, while it was operating as the UN mission, that there were other subsidiary activities going on surrounding that.

[00:05:02] Speaker 01:
Okay, so fact-finding on that.

[00:05:04] Speaker 01:
Yes.

[00:05:04] Speaker 01:
But just on the legal question, is it

[00:05:07] Speaker 01:
Do you have a rifle shot argument that that can't be right because they're not recognized as a foreign state?

[00:05:16] Speaker 03:
Well, it would not qualify as an embassy of another country.

[00:05:19] Speaker 03:
The question is whether the UN treaty, what exceptions the UN treaty would develop on that facility.

[00:05:28] Speaker 01:
And I guess I'm just making the point that we have a good bit of both legal and factual work to do before we could responsibly apply this.

[00:05:38] Speaker 03:
Yes, Your Honor.

[00:05:41] Speaker 03:
But if the status quo remains true on January 31st, then the law would allow for district work to assert jurisdiction under the ATC.

[00:05:52] Speaker 01:
Why would we remand rather than just order a submission

[00:05:57] Speaker 01:
supplemental submission to this court and if

[00:06:01] Speaker 01:
The answer to the questions I've been putting to you seem pretty straightforward.

[00:06:08] Speaker 01:
We could just resolve the issues ourselves, and if it looks messy, we could remand.

[00:06:13] Speaker 03:
Your Honor, this Court has procedures that it can take, which I'm sure would be much more, could be more efficient, and I leave that to the discretion of the Court.

[00:06:21] Speaker 03:
But to your point, there is further fact-finding that will have to be done, I believe, by January, before or on, after January 31st.

[00:06:33] Speaker 03:
When Congress and the President pass a law regarding foreign policy, it requires a respectful review by the courts.

[00:06:42] Speaker 03:
There is no national priority than combating terrorism.

[00:06:49] Speaker 03:
This statute is a statute that regulates the procedural rights of the parties.

[00:06:55] Speaker 03:
It does not regulate the primary conduct of the PA or the POO.

[00:06:59] Speaker 03:
As such, it applies immediately.

[00:07:00] Speaker 03:
The PA and the PLO tried to argue that the anti-retroactivity presumption of Landgraf applies in this case.

[00:07:08] Speaker 03:
However, it does not because this case only creates or takes away jurisdiction.

[00:07:14] Speaker 03:
Under US v. Alabama, where the Congress passed a law, while the case was pending before the Supreme Court, creating jurisdiction for the case,

[00:07:22] Speaker 03:
The Supreme Court found that that law only regulated the procedural rights of the parties, not their substantive rights.

[00:07:30] Speaker 03:
The same case we find here.

[00:07:34] Speaker 03:
Many of the PA and the PLO's constitutional challenges fall away

[00:07:40] Speaker 03:
when Daimler is examined and we see that the individual still maintains a right to consent or waive his or her right to a personal jurisdiction defense.

[00:07:50] Speaker 03:
In fact, in the Daimler case itself, one of the parties waived their right to a personal jurisdiction defense, and the court found that it was at home for the purposes of that case.

[00:08:01] Speaker 03:
Waiver is a form of consent.

[00:08:02] Speaker 01:
And the Irish insurance... It has to be voluntary, though.

[00:08:06] Speaker 03:
Yes, Your Honor, voluntary.

[00:08:07] Speaker 03:
Knowing and voluntary.

[00:08:09] Speaker 01:
And I can certainly imagine some statutes of deemed consent that don't look very voluntary.

[00:08:18] Speaker 03:
Yes, Your Honor, and there's an excellent opinion from the Second Circuit by Judge Carney, Brown v. Martin, Martin, Lockheed Martin in 2016.

[00:08:27] Speaker 03:
The judge there was looking at a statute which would have

[00:08:31] Speaker 03:
exposed a party to general jurisdictions of the courts of Connecticut had a business merely signed on to register in the state.

[00:08:38] Speaker 03:
And in fact, if they had not even been conducting business in the state, they were arguing that that created general jurisdiction over that corporation for any party, for any incident.

[00:08:50] Speaker 03:
The statute in the climbing case is much different.

[00:08:53] Speaker 03:
It only exposes the PA and the PLO to specific jurisdiction for this narrow band of cases.

[00:08:58] Speaker 03:
It is not a general jurisdiction statute.

[00:09:01] Speaker 03:
And furthermore, there is a 120-day period since the enactment of the law.

[00:09:05] Speaker 03:
The PA and the PLO have to make a decision.

[00:09:08] Speaker 03:
It will be a knowing and voluntary decision.

[00:09:12] Speaker 06:
In addition to the claimings, I understand that there's a tight relationship between the purpose of granting jurisdiction and the purpose behind the benefits allegedly conferred on the PLO and PA.

[00:09:29] Speaker 03:
Well, Your Honor, for decades there's been generous foreign aid given to the PA and the PLO by Congress.

[00:09:36] Speaker 03:
But with every grant of foreign aid to the PA or the PLO by Congress, there have also been conditions that require the PA and the PLO to renounce terrorism and to take active steps to combat terrorism within their jurisdiction, and repeated certifications of ongoing efforts.

[00:09:53] Speaker 02:
I'd like you to discuss the waiver of their personal jurisdiction, or I think forfeiture would be correct, the correct term, by waiting until after Daimler to raise it again.

[00:10:11] Speaker 02:
I'm sorry, Your Honor.

[00:10:13] Speaker 02:
By not raising the issue again after Goodyear, but waiting until Daimler?

[00:10:21] Speaker 03:
The central issue there is that the district court found that there was no prejudice to plaintiffs by defendants' decision to raise the Daimler decision a year after fact discovery when the Goodyear decision had come out prior to the end of fact discovery.

[00:10:36] Speaker 03:
This implies a great prejudice on planners because fact discovery had ended.

[00:10:40] Speaker 03:
And then because Daimler was now the rule in the case, planners were required to come up with a specific personal jurisdiction test.

[00:10:47] Speaker 02:
That also cost you a lot of money.

[00:10:48] Speaker 02:
So imagine this statute, second statute, either hadn't been passed, the HCA, either hadn't been passed or we rule that it doesn't help you for one reason or another.

[00:11:00] Speaker 02:
You would have not, and imagine,

[00:11:05] Speaker 02:
You also lose under Daimler.

[00:11:07] Speaker 02:
I assume if you knew all of that, if you knew that you were going to lose under Daimler, the case would have been over.

[00:11:13] Speaker 02:
You would not have spent another three years spending money on the discovery, which

[00:11:18] Speaker 02:
might not have helped you at all, certainly not on the merits discovery.

[00:11:22] Speaker 02:
Isn't that a prejudice to you, all the money that was spent and the time spent in the three years?

[00:11:27] Speaker 02:
Your Honor, we engaged in discovery for five years.

[00:11:29] Speaker 02:
No, but I'm talking about the time between Goodyear.

[00:11:32] Speaker 02:
What's the time between Goodyear and the time that they raised?

[00:11:36] Speaker 02:
June 2011 and January 2014.

[00:11:40] Speaker 02:
Okay, so for three years, you spent money, consumed resources, including your time,

[00:11:47] Speaker 02:
that you might not have spent if you had known that the case was over because of Daimler.

[00:11:54] Speaker 02:
Isn't that prejudice?

[00:11:55] Speaker 02:
Yes, Your Honor.

[00:11:59] Speaker 02:
What about the argument that they make that the at-home defense wasn't clear after Goodyear?

[00:12:09] Speaker 03:
Well, Your Honor, if it wasn't clear

[00:12:13] Speaker 03:
They would not have raised it in two separate filings, the same counsel for the same party.

[00:12:18] Speaker 03:
Admittedly, in the first filing, they did not go into great detail about the at-home defense.

[00:12:21] Speaker 03:
It was a couple of sentences and a Supreme Court brief, but that was two months after the Goodyear decision came out.

[00:12:30] Speaker 03:
Later, in another related case called Livnat v. Palestinian Authority in the Eastern District of Virginia,

[00:12:36] Speaker 03:
They spent five pages arguing why the Goodyear defense effectively destroyed the personal jurisdiction case of the plaintiffs there.

[00:12:45] Speaker 03:
The PA and the PLO clearly understood what the import of Goodyear was, and they could have raised it earlier, but they did not.

[00:12:51] Speaker 03:
They waited until a year after fact discovery had closed, and plans had just one critically important order to compel the PA and the PLO to produce documents, internal documents, that identified payments made by the PA and the PLO

[00:13:07] Speaker 03:
to so-called martyrs who are persons killed by Israeli security forces, but in this documentation they are identified by the PA and the PLO as al-Aqsa martyrs brigade members.

[00:13:20] Speaker 01:
Usually on the preservation issue, usually you have to

[00:13:25] Speaker 01:
preserve arguments, right, not citations, and just assume, I know you dispute this, but assume for purposes of argument that the general jurisdiction question what was properly preserved at the outset of the case.

[00:13:48] Speaker 01:
Why isn't this nothing more than just there's an issue preserved,

[00:13:55] Speaker 01:
then there's an intervening decision that makes the case more helpful for one side or the other, and they move for reconsideration.

[00:14:03] Speaker 01:
And it's no different from if Goodyear and Daimler had come down after district court proceedings are completely done, and they go up on appeal and cite Goodyear and Daimler, they're gonna win.

[00:14:17] Speaker 01:
They're not gonna lose on forfeiture grounds.

[00:14:19] Speaker 01:
They're gonna win on the preserved issue of general jurisdiction.

[00:14:24] Speaker 03:
Your Honor, they would have had to raise the issue in motion for summary judgment or prior to trial.

[00:14:31] Speaker 03:
This issue would have come up again.

[00:14:32] Speaker 03:
And there are decisions that find that technical compliance with Rule 12H1 does not

[00:14:37] Speaker 03:
relieve a party from its duty to raise the defense later.

[00:14:42] Speaker 03:
When the party engages in a lot of pretrial activity and then trial activity and does not raise a personal jurisdiction defense, especially when the law has changed and there's a new rule of law, this is sandbagging and it costs the plaintiffs a great deal of prejudice.

[00:15:01] Speaker 01:
But as we say... And the prejudice you're relying on, so your answer to

[00:15:07] Speaker 01:
Chief Judge Garland suggests that the prejudice is you spent all this time and effort that you might not have.

[00:15:21] Speaker 01:
That brings a little hollow where to this day you're vigorously pressing

[00:15:27] Speaker 01:
a specific jurisdiction argument.

[00:15:29] Speaker 03:
Yes, Your Honor.

[00:15:45] Speaker 03:
Regarding the Anti-Terrorism Clarification Act, I would just end on the question that the PA and the PLO have raised about fair warning.

[00:15:56] Speaker 03:
They argue that because the statute isn't being imposed now, they had no way of structuring their behavior properly in 2002.

[00:16:03] Speaker 03:
However, in 2002, they knew they could be sued for the conduct that they were sued for, and that's never been in question.

[00:16:10] Speaker 03:
And at that, I will sit down for rebuttal.

[00:16:20] Speaker 05:
Morning, may it please the Court.

[00:16:22] Speaker 05:
To answer Chief Judge Garland's question, Judge Katz's question, and Mr. McAllister's answer about the five years of discovery, not only is that not prejudice to the plaintiffs, it is precisely what they wanted.

[00:16:35] Speaker 05:
It is what they were begging Judge Friedman to do repeatedly, let us have more discovery.

[00:16:40] Speaker 05:
This from plaintiffs, whose primary argument in opposition to reconsideration was,

[00:16:46] Speaker 05:
We need more discovery because specific jurisdiction is intertwined with the merits.

[00:16:53] Speaker 05:
The five years of discovery does several things.

[00:16:55] Speaker 05:
Not only is it not prejudice, the money, Your Honor, that they spent on discovery is money they would have spent taking intertwined merits discovery, getting ready for trial.

[00:17:05] Speaker 05:
And it was a huge benefit for the parties and for the court.

[00:17:09] Speaker 05:
It is that five-year record of discovery

[00:17:12] Speaker 01:
Why isn't there prejudice for the second reason we were exploring, which is they're doing the discovery, they would have done it anyway, but they're operating on the assumption that personal jurisdiction is off the table, right?

[00:17:29] Speaker 01:
The only live issue is a merits question.

[00:17:33] Speaker 01:
for purposes of the merits, all they have to do is connect the attack to an attempt to influence Israeli policy.

[00:17:46] Speaker 01:
And that's pretty easy to do.

[00:17:47] Speaker 01:
That's a lot easier to do than what they would have to do for specific jurisdiction purposes, which is link the attack to an attempt to influence the United States.

[00:18:00] Speaker 05:
Well, Your Honor, first of all, I'd question the premise of the interpretation of the ATA, but let me start with this, precisely why the Abuse of Discretion Review Standard applies.

[00:18:11] Speaker 05:
Judge Friedman is much closer to that question, with all respect, to what discovery the parties were taking.

[00:18:18] Speaker 05:
And when the general jurisdiction standard was clarified by Daimler, Judge Friedman didn't steamroll the plaintiffs.

[00:18:25] Speaker 05:
He said, I'm going to give you every opportunity to tell me.

[00:18:27] Speaker 01:
They had a lot of discovery.

[00:18:30] Speaker 01:
And they went to great lengths.

[00:18:31] Speaker 01:
They deposed the trigger man in a prison in Israel.

[00:18:35] Speaker 01:
And he says something like, well, you know, I was sent to attack Israelis or whatever.

[00:18:41] Speaker 01:
Correct.

[00:18:42] Speaker 01:
That cinches up their merits case.

[00:18:46] Speaker 05:
I don't think so.

[00:18:48] Speaker 01:
Well, it's very helpful for their merits case, so why would they then need to go down this rabbit hole of

[00:18:54] Speaker 01:
trying to link the attack to attempts to influence the United States?

[00:18:59] Speaker 05:
Well, if I can answer the second question first, I think you put your finger on it precisely when you say it's Sinch's and Amarit's case.

[00:19:05] Speaker 05:
Well, the lesson that we have from Livna in this circuit and from Sokolo in the Second Circuit is that the liability standard under the ATA and the jurisdictional standard under the due process clause are not coterminous.

[00:19:18] Speaker 05:
To have jurisdiction as opposed to evidence showing an effort to influence Israeli policy

[00:19:24] Speaker 05:
That may be enough for the merits case, but it's not enough for jurisdiction.

[00:19:28] Speaker 05:
What Livnott tells us is there must be a link.

[00:19:30] Speaker 01:
Which may be the source of the prejudice here.

[00:19:33] Speaker 05:
Well, but at first, it's not linked to the United States.

[00:19:36] Speaker 05:
So that leaves it.

[00:19:36] Speaker 02:
Hold on.

[00:19:37] Speaker 02:
So they, at that time, thought they had general jurisdiction and didn't need specific jurisdiction.

[00:19:44] Speaker 02:
Had they known that they needed specific jurisdiction, then they might have sought evidence to show that these two figure men were lying.

[00:19:54] Speaker 02:
It's not particularly surprising

[00:19:56] Speaker 02:
that the people who killed people would say they were aiming at soldiers rather than civilians because the latter is a war crime.

[00:20:04] Speaker 02:
So their credibility on this question only matters, it doesn't matter with respect to the merits when they thought they had general jurisdiction, it only matters

[00:20:15] Speaker 02:
because they didn't know that they needed specific jurisdiction.

[00:20:19] Speaker 05:
So there's several points in there, Your Honor, if I might respond, which is this is precisely the set of inquiries that Judge Friedman undertook.

[00:20:27] Speaker 05:
He said, what is there out there?

[00:20:29] Speaker 05:
What else in the ocean haven't you fully boiled on discovery?

[00:20:32] Speaker 05:
It is more than just the attackers.

[00:20:34] Speaker 05:
It's not a question merely of credibility.

[00:20:36] Speaker 05:
There were seven depositions of the Palestinian Authority and the PLO, including three under Rule 30B6.

[00:20:44] Speaker 05:
This is not an issue as to whether the attackers can be held.

[00:20:47] Speaker 05:
liable under the ATA.

[00:20:49] Speaker 05:
It's a question of whether the PA and the PLO can.

[00:20:51] Speaker 05:
What Judge Friedman did, and he did it meticulously, was after the general jurisdiction standard changed and general jurisdiction no longer became possible.

[00:21:01] Speaker 05:
He said what a district judge should do, which is tell me what you have, tell me what you need.

[00:21:06] Speaker 05:
I'm going to give you every opportunity to crystallize your theory.

[00:21:09] Speaker 05:
I'm going to give you every opportunity to tell me what additional discovery you need.

[00:21:14] Speaker 05:
It was only when he went through that process

[00:21:17] Speaker 05:
that he held that, you know what, not only does the evidence uniformly show no link to the United States, he was applying Walden then, but he was anticipating correctly what this court ruled in Lebanon.

[00:21:30] Speaker 05:
You haven't shown a link to the United States, and in fact, you have proven the opposite of jurisdiction.

[00:21:36] Speaker 05:
You have proven consistently from every witness

[00:21:39] Speaker 05:
that there was no link to the United States.

[00:21:42] Speaker 05:
And that's the jurisdictional question as distinct Judge Katz's from the merits question.

[00:21:47] Speaker 05:
And that's why he acted well within his discretion in saying, you know what, after five years of discovery, enough is enough.

[00:21:54] Speaker 05:
I've given you every opportunity.

[00:21:56] Speaker 05:
And when you tell me you're prejudiced, that rings hollow in the sense that what else have you been asking me for for five years but more discovery?

[00:22:04] Speaker 05:
And he noted that in his decision when he said,

[00:22:06] Speaker 05:
The only thing that happened during the intervening years between Goodyear and Daimler was that they got... Yes, absolutely, Chief Judge Harlow.

[00:22:15] Speaker 05:
It cost money, but so does getting ready for trial under any circumstances cost money.

[00:22:19] Speaker 05:
That's not prejudice.

[00:22:21] Speaker 05:
That's just part of the litigation process.

[00:22:22] Speaker 02:
What about the other part of this argument that...

[00:22:25] Speaker 02:
It wasn't clear that Goodyear was the law until Dunwoody.

[00:22:29] Speaker 05:
Well, I think Judge Friedman did an excellent job of summarizing law.

[00:22:32] Speaker 05:
He said, first, Wright Miller got it wrong.

[00:22:35] Speaker 05:
Wright Miller says Goodyear didn't change the rules.

[00:22:37] Speaker 05:
It's just an application in stream of commerce, has really no general application.

[00:22:43] Speaker 05:
And then Judge Friedman pointed to other district court judges in this circuit.

[00:22:49] Speaker 02:
So here, the problem is, all very nice, but the Supreme Court thought it was absolutely plain.

[00:22:54] Speaker 02:
In Daimler, the court says we made it plain in Goodyear.

[00:22:58] Speaker 02:
The Supreme Court says Goodyear made it clear.

[00:23:03] Speaker 02:
And in Daimler, the court says

[00:23:07] Speaker 02:
Instructed by Goodyear, we look at the question of whether they were essentially at home.

[00:23:11] Speaker 02:
So at least from the Supreme Court's point of view, it was crystal clear.

[00:23:15] Speaker 02:
And with due respect, they are the ones we have to respect, and not district courts who didn't see what they had said in Goodyear.

[00:23:23] Speaker 05:
No question, Your Honor.

[00:23:24] Speaker 05:
As a matter of law, that's right.

[00:23:26] Speaker 05:
And I think with 2020 hindsight, we all see it, having read Daimler, what Goodyear was meant to be.

[00:23:32] Speaker 05:
The question, though, is not whether or not

[00:23:34] Speaker 05:
Goodyear changed the standard with all due respect.

[00:23:37] Speaker 05:
It's whether or not these defendants should have apprehended what other district judges and what Raiden Miller didn't apprehend that now was the time to make that motion.

[00:23:48] Speaker 05:
No, Your Honor, Gilmore dealt with a very different circumstance.

[00:23:51] Speaker 05:
I'm glad you asked me that question.

[00:23:52] Speaker 05:
Gilmore, we made the argument that even though no 12b2 defense was ever raised at the outset, we didn't know we should have raised one until after Daimler came out.

[00:24:04] Speaker 05:
This is very different.

[00:24:05] Speaker 05:
From the get-go, a 12b2 defense was waived.

[00:24:08] Speaker 02:
And to Judge Katz's point, once that has been raised... Well, let me ask about this language in Gilmore.

[00:24:15] Speaker 02:
Appellees also argue

[00:24:17] Speaker 02:
that their personal jurisdiction defense was not available to them until the Supreme Court's decision in Daimler.

[00:24:30] Speaker 02:
At the time of Appellee's pre-answer motion in 2002, the legal basis for their personal jurisdiction defense did exist.

[00:24:38] Speaker 05:
It did.

[00:24:39] Speaker 02:
And that's the distinction between Gilmore and this case.

[00:24:42] Speaker 02:
Why is that?

[00:24:42] Speaker 02:
Because they knew, they're saying that in 2002, their personal jurisdiction defense did exist.

[00:24:52] Speaker 02:
And their personal jurisdiction defense was that you have to show at home.

[00:24:56] Speaker 05:
The latter part is not correct, Your Honor.

[00:24:59] Speaker 05:
The distinction is, in Gilmore, no answer and no pre-answer motion raised a 12b2 defense.

[00:25:04] Speaker 05:
That is precisely the opposite of the scenario here, where 12b2 defenses were repeatedly raised.

[00:25:11] Speaker 02:
I understand where the waiver occurred, but I'm on the question of whether the at-home defense was available.

[00:25:18] Speaker 02:
And looking at what the district court said, the district court says, in Gilmore,

[00:25:24] Speaker 02:
Defendants based most of their argument on the allegation that until Daimler was decided, the specific argument asserted in their motion that their contacts with the District of Columbia do not render them at home was simply not available.

[00:25:39] Speaker 02:
The court says it was available.

[00:25:41] Speaker 02:
Our court said it was available.

[00:25:43] Speaker 05:
In the context of rebutting the argument made by my clients in that case, that they had no need to assert a 12b2 defense from the outset.

[00:25:52] Speaker 05:
And what this court said was that no, there was always a 12b2 defense.

[00:25:58] Speaker 05:
Perhaps you wouldn't have won, but you had no excuse for not asserting a 12b2 defense.

[00:26:02] Speaker 05:
That is a not only dramatically different.

[00:26:04] Speaker 02:
I know it's a different argument.

[00:26:06] Speaker 02:
with respect to what constitutes waiver.

[00:26:10] Speaker 02:
It's not a different argument as to what argument was available.

[00:26:15] Speaker 02:
The fact that Judge Friedman thought it wasn't available is rebutted by our holding in Gilmore that it was available.

[00:26:22] Speaker 02:
I get your point that it's different if you don't raise a pre-answer motion or you don't put it in your answer under 12B.

[00:26:31] Speaker 02:
But that's, on the question of whether

[00:26:36] Speaker 02:
It was available.

[00:26:37] Speaker 02:
It seems like we've already decided.

[00:26:38] Speaker 05:
No, I don't think so, Your Honor, because I don't think that's what Gilmore holds with all respect.

[00:26:42] Speaker 05:
What it says is it's dealing with the portion of the argument that there was no reason to assert a defense because it would have been futile.

[00:26:52] Speaker 05:
What the court held in Gilmore is it wouldn't have been futile.

[00:26:54] Speaker 05:
We recognize 12b2 defenses.

[00:26:56] Speaker 05:
It never held that that was the at-home standard in this circuit.

[00:27:02] Speaker 05:
Indeed, you would not find a decision out of this court or out of the district court in this circuit applying an at-home standard to a general jurisdiction argument before Daimler came out.

[00:27:15] Speaker 02:
But neither of that is relevant.

[00:27:20] Speaker 02:
There was no Supreme Court or in-circuit precedent rendering the personal jurisdiction defense for all practical purposes impossible.

[00:27:28] Speaker 05:
Your Honor, we're saying the same thing.

[00:27:30] Speaker 02:
In other words, the defense was available at the time.

[00:27:33] Speaker 05:
And all that availability goes to, and I think I'm talking past, Your Honor, so if you give me a moment, I'll try to be clear.

[00:27:40] Speaker 05:
The availability issue, which is what Gilmore addressed, was is there an excuse for not asserting 12b2.

[00:27:47] Speaker 05:
Gilmore did not decide that the standard at the time

[00:27:51] Speaker 05:
was at home.

[00:27:52] Speaker 05:
That is the distinction between Gilmore and this case, and indeed Judge Friedman, in his opinion on reconsideration, said Gilmore presents a totally different scenario.

[00:28:03] Speaker 05:
He's right, because the only issue that was dealt with in Gilmore, that portion that you're looking at, Your Honor, is why is that in Waldman-Socco, our second circuit case,

[00:28:14] Speaker 05:
why the court said, you know, it's okay that you belatedly raised a general jurisdiction defense, not an at-home defense, a general jurisdiction defense, because in the Second Circuit, if you had an office here, you were considered to be subject to general jurisdiction.

[00:28:29] Speaker 05:
All that Gilmore says is that's never been the standard in the District of Columbia circuit.

[00:28:33] Speaker 05:
It does not hold that the at-home standard was the standard pre-Daimler, and indeed it was not.

[00:28:40] Speaker 05:
Judge Friedman cited to a district court decision in a case called Alcanane,

[00:28:44] Speaker 05:
was an example of where another district court in this circuit cited... I don't understand why it matters what one district court or another district court did.

[00:28:53] Speaker 02:
That's not what determines whether at home is a defense.

[00:28:56] Speaker 02:
What determines whether at home is a defense is what the Supreme Court said in Goodyear.

[00:29:01] Speaker 05:
And the only way in which that arises in this case is whether or not that misapprehension of what Goodyear meant, which the Supreme Court reminded everybody about three years later, meant that there is no good excuse for having moved for reconsideration three years after Goodyear.

[00:29:20] Speaker 02:
It has to be an intervening change in law.

[00:29:22] Speaker 02:
That was the ground on which he resolved the matter, right?

[00:29:25] Speaker 02:
And he said there was an intervening change of law.

[00:29:29] Speaker 02:
The Supreme Court said there wasn't.

[00:29:31] Speaker 05:
I think the Supreme Court is perhaps went to the trouble in Daimler to explain what Goodyear meant because of the confusion.

[00:29:41] Speaker 05:
But this is not a strict liability issue for my clients in terms of waiver.

[00:29:46] Speaker 05:
The question is whether they acted reasonably and whether Judge Friedman in turn abused his discretion in saying that there was a reason for a three-year delay.

[00:29:55] Speaker 02:
It's not a question of law if you thought that there hadn't been an intervening change in law when there actually had been.

[00:30:02] Speaker 05:
Indeed, Your Honor, reconsideration is a matter, part of the reason why the abuse of discretion standard governs it.

[00:30:07] Speaker 02:
But isn't it an abuse of discretion to get the law wrong?

[00:30:10] Speaker 02:
That's what the court said in Coons.

[00:30:12] Speaker 05:
Yes, but that was not what the district court decided.

[00:30:16] Speaker 05:
What the district court decided was that given all of the misapprehension out there in the atmosphere among district courts, among commentators, among these defendants about what Goodyear meant, that they had a reasonable excuse for not moving for reconsideration until Daimler told everybody, you know, you've got this wrong.

[00:30:34] Speaker 05:
We've been trying to be clear about this that the at-home standard applies.

[00:30:38] Speaker 05:
That is the sole context.

[00:30:40] Speaker 05:
in which that issue arises in this case.

[00:30:43] Speaker 05:
And Gilmore, respectively, never held that the standard is the at-home standard prior to the time of dimer.

[00:30:50] Speaker 05:
So given that the one question where this matters is, did Judge Friedman abuse his discretion saying it was OK that you waited three years?

[00:30:59] Speaker 05:
It doesn't matter whether we read the law wrong.

[00:31:02] Speaker 05:
Indeed, it's helpful to us that we read the law wrong, because that explains the reasonableness of our behavior

[00:31:08] Speaker 05:
until not moving after diamond.

[00:31:11] Speaker 05:
And that is precisely why the Abuse of Discretion standard applies here also, because the district judge is closer to the record, closer to the proceedings, and that's what the courts rely upon district judges to do.

[00:31:29] Speaker 05:
Having upheld that there was not a forfeiture, let me do briefly with the waiver question.

[00:31:36] Speaker 05:
The waiver question

[00:31:38] Speaker 05:
in turn has been waived and this court was never asserted below despite litigation in 2005, 2006, 2007 on motions to dismiss

[00:31:47] Speaker 05:
The plaintiffs consistently acquiesced in the merits adjudication of the Rule 12b2 issue.

[00:31:53] Speaker 05:
They never argued there was a waiver because it wasn't sufficiently preserved.

[00:31:56] Speaker 05:
They can't make that argument for the first time in this court.

[00:32:00] Speaker 05:
And indeed, embedded in Judge Friedman's decision on forfeiture is the recognition that that defense was correctly preserved.

[00:32:08] Speaker 05:
In terms of jurisdictional discovery, I've already explained why that five years of discovery was beneficial.

[00:32:14] Speaker 05:
And indeed, it facilitated and indeed compelled Judge Friedman's decision that there is no specific jurisdiction.

[00:32:21] Speaker 05:
Again, Judge Katz, it's because of the distinction between the liability standard, which might be satisfied by proof of connection to Israel, versus the jurisdictional standard, which requires it.

[00:32:31] Speaker 05:
And candidly, Mr. McAllister spent the first 10 minutes of his argument talking about everything but what happened in the district court, so I think that should convey to this court how much confidence he has in his ability to overturn what Judge Friedman did.

[00:32:45] Speaker 05:
He should have no confidence in that because Judge Friedman then meticulously applied

[00:32:50] Speaker 05:
The results of discovery, to conclude, there was no specific jurisdiction precisely for the reasons that this court decided in Livnaught.

[00:32:57] Speaker 05:
Livnaught and the theory in this case are look-alikes.

[00:33:00] Speaker 05:
For all the reasons that the court said in Livnaught, there was no specific jurisdiction because of no link to the United States.

[00:33:07] Speaker 05:
There was no link to the United States here.

[00:33:09] Speaker 05:
That is what Judge Freeman considered meticulously, and that's why he had such extensive briefing

[00:33:15] Speaker 01:
I agree with you on all of that, but I'm just not sure they had a fair chance to try to develop that part of the case, just given the way the general jurisdiction issue had played out.

[00:33:30] Speaker 05:
And that's a reasonable question to ask Judge Katz.

[00:33:32] Speaker 05:
It's a question Judge Friedman asked, but it requires more than the plaintiff saying, you know what, I don't think I've been treated fairly.

[00:33:39] Speaker 05:
I want more.

[00:33:40] Speaker 05:
What the district judge is supposed to do and what the district judge did here is say, okay, what do you want?

[00:33:45] Speaker 05:
And they could never articulate anything other than, we want information about their lobbying in the United States and their fundraising in the United States.

[00:33:53] Speaker 05:
Jurisdictional discovery doesn't work by saying, I want more.

[00:33:57] Speaker 05:
It requires concrete articulation of what you want.

[00:34:00] Speaker 05:
What they asked for is a lookalike copy of what the plaintiffs asked for in Livnaught.

[00:34:06] Speaker 05:
And in Livnaught, this court said, it doesn't matter that zero discovery has been taken in that case.

[00:34:11] Speaker 05:
That's not sufficient to alter the jurisdictional outcome.

[00:34:14] Speaker 05:
So, Judge Friedman, a for sure, made the right decision when he looked at exactly the same jurisdictional discovery request.

[00:34:21] Speaker 05:
It is not either the defendant's job or the district court's job to cater to the plaintiffs and say, you know what, take whatever you want.

[00:34:27] Speaker 05:
He has to ask the question, as he did, to say, okay, what else and why does it matter?

[00:34:32] Speaker 05:
They couldn't move that.

[00:34:33] Speaker 05:
None of this, despite the long opening for Mr. McAllish, can be undone by act.

[00:34:38] Speaker 05:
You only have a few minutes.

[00:34:39] Speaker 05:
Do you want to talk about the statute?

[00:34:41] Speaker 05:
Yes.

[00:34:41] Speaker 05:
I was just turning to that, Your Honor.

[00:34:42] Speaker 05:
I will.

[00:34:43] Speaker 05:
First of all, to your question, Judge Katz, is the plaintiffs read the statute incorrectly in terms of the mission.

[00:34:50] Speaker 05:
What the statute says is anybody benefiting from a presidential waiver who then maintains a mission, that's irrelevant because there is no extant presidential waiver for the PA and the PLO.

[00:35:02] Speaker 05:
It hasn't been one for a couple of years.

[00:35:04] Speaker 05:
The PLO mission to the United States, which required a waiver, has been shuttered.

[00:35:09] Speaker 01:
The Second Circuit... It's a waiver of this 22 USC 5202, right?

[00:35:16] Speaker 01:
Correct.

[00:35:16] Speaker 01:
Which makes it unlawful for the PLO

[00:35:20] Speaker 01:
to establish or maintain any office headquarters, premises, et cetera.

[00:35:26] Speaker 01:
I assume there has to be a waiver in place or else have they have the New York

[00:35:30] Speaker 01:
mission or office?

[00:35:32] Speaker 05:
Because – I'm sorry to cut you off, Judge Cassidy.

[00:35:33] Speaker 01:
No, I'm sorry.

[00:35:34] Speaker 05:
Go ahead.

[00:35:34] Speaker 05:
The Second Circuit held in the Klinghoffer case and the Southern District of New York held in the U.S.

[00:35:39] Speaker 05:
versus PLO case that a presidential waiver is not required for the UN mission because of superseding anteceding obligations the United States undertook in the UN headquarters agreement.

[00:35:51] Speaker 05:
I see.

[00:35:52] Speaker 05:
So the waiver only ever applied to the U.S.

[00:35:54] Speaker 05:
mission, which has now been shuttered,

[00:35:56] Speaker 05:
The President must expressly issue a waiver.

[00:35:59] Speaker 05:
No such waiver exists as to the PA of the PLO.

[00:36:02] Speaker 05:
As to A, as Your Honor said, Judge Katz's.

[00:36:06] Speaker 05:
The PAN and PLR have not made any decisions.

[00:36:09] Speaker 01:
There's nothing you can tell us.

[00:36:11] Speaker 05:
Yeah, I can tell you that they're inclined not to take the aid.

[00:36:14] Speaker 05:
They are a government.

[00:36:16] Speaker 05:
Their deliberations continue.

[00:36:17] Speaker 05:
I don't think a remand is required.

[00:36:19] Speaker 05:
It's either a yes or no answer on that, and certainly in the first instance, to the extent the court wants to.

[00:36:25] Speaker 02:
You seem to have a dispute, though, about what constitutes aid, right?

[00:36:29] Speaker 02:
In your brief, you say,

[00:36:31] Speaker 02:
Certain money is not provided directly, it's provided indirectly and to somebody else.

[00:36:37] Speaker 02:
Are those not fact questions?

[00:36:39] Speaker 05:
I don't think so, Your Honor, because if the – it's a two-part question.

[00:36:42] Speaker 05:
Does the United States give – and that raises the issues that Your Honor asked – and does the recipient disclaim?

[00:36:48] Speaker 05:
All the PA and the PLO have to do is say, I disclaim all aid, however provided that meets the language of the statute.

[00:36:54] Speaker 05:
What we say is, even if they could get past those factual hurdles, which shouldn't trouble this court, there are legal reasons why AFCA can't alter the outcome here.

[00:37:03] Speaker 01:
First and foremost.

[00:37:04] Speaker 01:
So just on the mechanics, your position is the maintenance of the UN-related New York office can't be a triggering event under this statute, for reasons we've said.

[00:37:22] Speaker 01:
Yes, sir.

[00:37:24] Speaker 01:
relevant triggering event is whether or not your clients will continue to accept aid and that question is one you can't get answered.

[00:37:36] Speaker 05:
Well, they're trying not to accept.

[00:37:37] Speaker 05:
As Your Honor pointed out, they have another five, six weeks to make that decision.

[00:37:42] Speaker 05:
I think that's something we can easily inform the Court about.

[00:37:45] Speaker 05:
Your Honor, I worry that with your question, I want to call the Court's attention to the fact that even though the Court allowed the plaintiffs to file a supplemental brief on ATCA,

[00:37:53] Speaker 05:
We worry that there wouldn't be time for us to respond to that.

[00:37:56] Speaker 05:
We have an extensive discussion of ATCA in our opposition to their motion for leave to file a supplemental brief.

[00:38:03] Speaker 05:
Our authority to be answering those questions, Judge Katz, is found there as is our authority for our

[00:38:09] Speaker 05:
for other arguments as to why ATCA can't apply here.

[00:38:13] Speaker 05:
I recognize I'm out of time, but I would just ask to be able to... Why don't you make what's your strongest?

[00:38:17] Speaker 02:
We've read the pleadings, but do you want to make the strongest argument?

[00:38:20] Speaker 05:
I think, first and foremost, there's seven different reasons why, as a matter of statutory construction, a statute that says, in this relevant portion, this statute is effective upon the date of enactment, the Supreme Court in Landgraf

[00:38:35] Speaker 05:
said a statute that says it is effective upon enactment doesn't mean any retroactive application.

[00:38:45] Speaker 05:
There's no unambiguous directives.

[00:38:47] Speaker 02:
Does that presume the application of the retroactivity presumption?

[00:38:52] Speaker 05:
No, that's just the statutory interpretation part of Landgraf.

[00:38:55] Speaker 05:
Landgraf separately says, which would be my first point, there is no unambiguous directive requiring retroactive application.

[00:39:03] Speaker 05:
I'm starting here because of the constitutional avoidance doctrine, Your Honor.

[00:39:06] Speaker 05:
I don't actually believe our constitutional arguments are weaker than the statutory construction ones.

[00:39:11] Speaker 05:
But there's no unambiguous directive for retroactive application.

[00:39:17] Speaker 05:
Number two, even if there were any ambiguity, which I'm sure Mr. McAllister will say, you know, there was this kind of intent and it could be read this way, it's quite clear that ambiguity doesn't help them.

[00:39:27] Speaker 05:
In the Linde case, what the Supreme Court said was, it has to be perfectly clear that there's retroactive application.

[00:39:36] Speaker 05:
Ambiguity works against them, not in their favor.

[00:39:38] Speaker 05:
There's no rule of lenity here.

[00:39:40] Speaker 05:
that will allow ambiguity.

[00:39:41] Speaker 02:
But if we regard this as a jurisdictional and therefore procedural statute, as to which there is no constitutional question, then we don't have to do any avoidance.

[00:39:49] Speaker 02:
You only do avoidance if you think there's something to be avoided.

[00:39:52] Speaker 05:
Well, with respect, that would require contradicting the panel's decision in Lizna, which made it crystal clear that there is a substantive, not a procedural, right under due process to be free of jurisdiction

[00:40:04] Speaker 05:
in a forum where the defendant is not at home.

[00:40:07] Speaker 05:
That is not a procedural rule.

[00:40:08] Speaker 05:
That's not a subject matter jurisdiction rule.

[00:40:11] Speaker 05:
That is precisely what ATCA tries to undo.

[00:40:14] Speaker 05:
But that's a substantive right, because if it's not a substantive right, then live not doesn't mean what it says, which is when this court said in live not, Congress can't wish away a constitutional provision, can't wish away the substantive right under the due process clause to be free from jurisdiction in the United States

[00:40:33] Speaker 05:
where it's not at home.

[00:40:34] Speaker 05:
So that's another reason under our seven reasons of statutory construction.

[00:40:38] Speaker 02:
But Livnet didn't address the question of waver, of knowingly and freely waiving, did it?

[00:40:48] Speaker 02:
Livnet did not address it.

[00:40:49] Speaker 02:
The only jurisdictional hook there was general jurisdiction.

[00:40:52] Speaker 02:
That wouldn't be the jurisdictional hook here.

[00:40:54] Speaker 02:
The question here is whether Congress, through this act, can provide jurisdiction

[00:41:02] Speaker 02:
on contingent on acceptance of money.

[00:41:06] Speaker 05:
I'm thrilled you're going to ask me that question because that frames the unconstitutional conditions doctrine and why it applies here.

[00:41:11] Speaker 05:
Livnud says it's a substantive, enumerated constitutional right to be free under the due process clause from jurisdiction.

[00:41:19] Speaker 05:
But Congress is saying if you want aid, you've got to surrender that constitutional right.

[00:41:24] Speaker 05:
That is precisely what the unconstitutional conditions doctrine cases say Congress can't do.

[00:41:29] Speaker 05:
And I respectfully refer the court to Justice Alito's opinion in the Coons case, which says, you know what?

[00:41:35] Speaker 05:
Every time we go through unconstitutional conditions, somebody says, it's OK, because we don't have to give you this benefit.

[00:41:41] Speaker 05:
It's an act of legislative grace.

[00:41:42] Speaker 05:
It's a gratuity.

[00:41:43] Speaker 01:
And with Justice Alito, Congress surely has more latitude when they're addressing funding conditions.

[00:41:52] Speaker 01:
than when they're imposing direct requirements.

[00:41:56] Speaker 05:
Only when what they seek to do is either withhold funding or provide it.

[00:42:00] Speaker 05:
Your Honor's absolutely right.

[00:42:01] Speaker 01:
Congress doesn't have to give a penny.

[00:42:02] Speaker 01:
What's wrong with Congress saying that when we spend our foreign assistance money, to which no one has an entitlement, we want only people who have renounced terrorism and are making amends for any

[00:42:21] Speaker 05:
past terrorist acts.

[00:42:36] Speaker 05:
Every one of our unconstitutional conditions cases deals with gratuitous government benefits.

[00:42:42] Speaker 05:
But just because the government doesn't have to give it to you doesn't mean that it can make you surrender an enumerated constitution.

[00:42:50] Speaker 01:
No, but it's a sufficient answer to an unconstitutional conditions objection to say that the condition advances the purpose of the spending program.

[00:42:59] Speaker 05:
Respectfully, I disagree, because the cases that support that analysis, Your Honor, which are rational relationship cases,

[00:43:05] Speaker 05:
all deal with non-enumerated rights under the Constitution.

[00:43:09] Speaker 05:
The unconstitutional conditions doctrine says not when you get to enumerated rights.

[00:43:13] Speaker 05:
This is what Coons says.

[00:43:15] Speaker 05:
When it comes to enumerated rights under the Constitution, it doesn't matter that the government has a legitimate, rational relationship to this goal.

[00:43:24] Speaker 05:
They simply can't ask for it.

[00:43:25] Speaker 05:
It's a bargain on which the government cannot insist.

[00:43:28] Speaker 05:
And that's the distinction between those cases.

[00:43:33] Speaker 05:
Good questions?

[00:43:35] Speaker 02:
Questions?

[00:43:41] Speaker 02:
Thank you.

[00:43:48] Speaker 03:
Thank you, Your Honors.

[00:43:49] Speaker 03:
I'd like to address a few points made by opposing counsel.

[00:43:53] Speaker 03:
One point was Judge Kansas was asking a question about prejudice and the, and counsel stated, although I think Judge Kansas understood where the prejudice arose from, but opposing counsel stated again that

[00:44:05] Speaker 03:
We had five years of discovery and that was our chance.

[00:44:09] Speaker 03:
The point is that Judge Freeman made his request about the specific jurisdiction test and the Davila case was imposed after the five years of discovery.

[00:44:18] Speaker 03:
We didn't have any discovery on the connections between the terror campaign in and near Israel and the influence campaign which was occurring in the United States.

[00:44:28] Speaker 03:
Secondly, regarding the... But he did.

[00:44:31] Speaker 01:
He did at some point ask you what are the subjects on which you want further discovery.

[00:44:41] Speaker 01:
Yes, you're right.

[00:44:42] Speaker 01:
And you did not identify the missing link under LIVNOT, which is the connection between the particular attack

[00:44:54] Speaker 01:
and attempts to influence United States policy.

[00:44:58] Speaker 03:
Your Honor, in our briefs we made a different jurisdictional discovery request in the light of Lib-Mat.

[00:45:04] Speaker 03:
In our jurisdictional discovery request in our briefs, we addressed two points.

[00:45:08] Speaker 03:
One is, was the PA through the AAMB deliberately targeting Americans and killing Americans, launching attacks against Americans?

[00:45:16] Speaker 03:
And two was, what are the external communications by the PA and the PLO regarding those attacks on the Americans?

[00:45:22] Speaker 03:
Because this goes to the heart of the conspiracy that is at issue in this case.

[00:45:33] Speaker 04:
Yes, Your Honor.

[00:45:35] Speaker 04:
They are different than the requests listed at the district court.

[00:45:38] Speaker 02:
We may not... So in what form, I'm sorry, what format were these additional requests made?

[00:45:45] Speaker 03:
We articulated a more expansive view of the jurisdictional discovery in the briefs.

[00:45:49] Speaker 03:
In the district court?

[00:45:50] Speaker 03:
In the briefs, in this court.

[00:45:52] Speaker 03:
Yeah, but in the district court.

[00:45:53] Speaker 03:
In the district court, we requested jurisdictional discovery less sophisticated than the requests that we described at the appellate court level.

[00:46:03] Speaker 01:
Should we not cut that off as a new argument first raised on appeal?

[00:46:09] Speaker 03:
Well, Your Honor, the Court has discretion to review pure questions of law, and it's been well briefed by both sides.

[00:46:17] Speaker 03:
Thus, there's less prejudice.

[00:46:18] Speaker 01:
Pure questions of law, but this is about the nitty-gritty of what you're seeking, the subjects on which you're seeking discovery and why.

[00:46:28] Speaker 03:
Yes, Your Honor, but in this case, the Livnat decision is an intervening event, and we had to address the Livnat decision.

[00:46:34] Speaker 01:
And remind me, when did Livnat come down relative to the procedural history of this case?

[00:46:41] Speaker 03:
Livnat was decided by this court last year, 2017.

[00:46:45] Speaker 01:
After... Long after the close of the discovery?

[00:46:49] Speaker 02:
Long after.

[00:46:50] Speaker 02:
The judge's decision is in 2015?

[00:46:53] Speaker 02:
2015, yes, Your Honor.

[00:46:57] Speaker 03:
And I see that amount of time.