[00:00:12] Speaker 03: Mr. Gassman for the appellant, Mr. Silbert. [00:00:53] Speaker 02: May it please the court, I'm Paul Gaston appearing for plaintiffs of balance with me at council table for David Weinstein and Marcel from Jerusalem. [00:01:05] Speaker 02: And we are especially honored to also have attending today Rosalie Simon, one of our named plaintiffs and her daughter, Ruth Simon, a member of the New York and New Jersey bars. [00:01:19] Speaker 02: There are two issues presented to the court on appeal today. [00:01:23] Speaker 02: One is whether prudential exhaustion requires that survivors return to Hungary to seek relief there in the first instance. [00:01:31] Speaker 02: And the other is whether this case was properly dismissed on grounds of forum non-convenience. [00:01:39] Speaker 02: We have argued in our briefs that the first doctrine is not applicable and unsupported and that the second doctrine, FMC, is both misconstrued and misapplied. [00:01:49] Speaker 02: FMC allows dismissal in favor of a foreign forum only in exceptional circumstances and only where defendant challenging plaintiff's chosen forum meets its heavy burden of showing that the foreign forum is the strongly preferred forum for the litigation. [00:02:07] Speaker 02: Prudential exhaustion is not required by international law. [00:02:10] Speaker 05: Can we actually stay on the form of non-convenience for a second here? [00:02:15] Speaker 05: Tell me a little bit about, I'm trying to understand here, what did the district court know about, if anything, about what type of proof was going to be expected in this case? [00:02:27] Speaker 05: Was this going to be both on the plaintiff's side and, if you know, on the defendant's side? [00:02:32] Speaker 05: If not, they can answer that question. [00:02:34] Speaker 05: I'm not talking about laying out your pretrial [00:02:37] Speaker 05: lists of exhibits or witnesses, but at least for your purposes of your side of the case, was it expected to be witness testimony, record heavy, or lots of people in Hungary going to need to be called as witnesses to prove your case? [00:02:53] Speaker 02: No, I don't believe any people from Hungary will be called to approve our case. [00:02:57] Speaker 02: Our case will be proved by the testimony of plaintiffs themselves, four of whom of the named plaintiffs are United States residents. [00:03:07] Speaker 02: And it'll also be proven by reference to some documents, many of which are found here right across the mall in the Holocaust Memorial Museum. [00:03:21] Speaker 02: And frankly, as far as liability goes, Your Honor, I don't think this is a difficult case to prove. [00:03:27] Speaker 02: The opinion of this court on the Simon appeal already set out the historical background in great detail. [00:03:39] Speaker 02: to the extent that there will be any need for testimony from Hungary, I imagine it will be largely historical expert witness testimony. [00:03:51] Speaker 02: And expert witnesses, as we know, could come from anywhere. [00:03:54] Speaker 02: They don't even have to come from Hungary. [00:03:56] Speaker 04: Mr. Gassen, what about the law, choice of law? [00:04:02] Speaker 04: The claim, as we described it in Simon 1, is a common law claim. [00:04:10] Speaker 04: And then it has an international law, jurisdictional basis, but the claim itself is a common law claim. [00:04:17] Speaker 04: So if this were to, is that common law of Hungary or historical Hungarian law or? [00:04:25] Speaker 04: American law or where would a court adjudicating that look? [00:04:29] Speaker 02: We believe there is a well established body of law applicable to takings generally and what we would say is that general principles of international law will apply because those general principles of international law often apply in cases of takings of property and there's no reason obviously that's a fine point that will have to be hashed out in [00:04:54] Speaker 02: briefing about conflicts of law, but we will propose and we will advocate for the applicability of general principles of international law. [00:05:06] Speaker 04: Do you have any support for that? [00:05:08] Speaker 04: Any case support? [00:05:09] Speaker 04: I realize this isn't very unusual. [00:05:12] Speaker 02: Well, we do, Your Honor. [00:05:14] Speaker 02: I mean, there are many expropriation cases heard in international tribunals. [00:05:20] Speaker 02: And I'm not saying this is exactly that case, but there are many cases such as that from which these general principles of international law [00:05:29] Speaker 02: can be derived and which have been applied in such cases. [00:05:33] Speaker 02: And you're not talking about treaty-based decisions. [00:05:37] Speaker 02: You're talking about? [00:05:38] Speaker 02: I'm talking about cases like the Horschow factory case, various cases like that, which have always been held out as applying general principles of international law which call for full, fair, and adequate compensation. [00:05:55] Speaker 02: in the case of taking jurisprudence. [00:05:58] Speaker 00: But the merits claims, as described in Simon 1, were perfectly ordinary humdrum tort claims, right? [00:06:12] Speaker 00: Conversion, unjust enrichment, right? [00:06:14] Speaker 00: Had nothing to do with genocide and all of the difficult, all of those difficult aspects of the case. [00:06:24] Speaker 00: So is there any support for the proposition that there's some free-floating international common law claim for conversion? [00:06:35] Speaker 02: No, I'm not claiming that, Your Honor. [00:06:38] Speaker 02: I'm claiming that because of the unique [00:06:41] Speaker 02: takings that issue here, the genocidal expropriation, that these claims can be subject to what I would call principles derived from international law. [00:06:54] Speaker 02: I'm not saying they're subject to international law. [00:06:57] Speaker 02: but that they are subject to principles derived from international law and those principles clearly call for full fair and adequate compensation in these circumstances. [00:07:08] Speaker 05: If in the end we lose that argument... Is your theory that Hungary would have at the time of these events been subject to these derived from international law rules? [00:07:22] Speaker 05: Or that Hungary itself had in place [00:07:26] Speaker 05: at the time, at least for non-Jewish people, laws against these types of expropriations? [00:07:33] Speaker 05: I'm just trying to understand whether it's essentially Hungarian common law that was supposed to be consistent with international law at the time? [00:07:40] Speaker 02: I can't answer that, Your Honor, as to what the Hungarian law in the 1940s would have said. [00:07:48] Speaker 02: I can say that Hungarian defendants have claimed in this case and have submitted a declaration of an expert witness, which says that Hungary recognizes international law and considers international law to be part of their law. [00:08:07] Speaker 02: Their own expert witness, Dr. Sannavand, submitted a declaration to that effect. [00:08:13] Speaker 02: Whether that was also the case in the 1940s, I'm just not sure, Your Honor. [00:08:17] Speaker 05: And you'd want to talk about the exhaustion doctrine as well? [00:08:20] Speaker 02: Excuse me? [00:08:21] Speaker 05: You wanted to talk about the exhaustion, the prudential exhaustion point as well? [00:08:25] Speaker 02: I'm sorry, I'm having a hard time. [00:08:27] Speaker 05: You wanted to talk about prudential exhaustion as well. [00:08:29] Speaker 02: Prudential exhaustion, of course. [00:08:30] Speaker 02: I waylaid you onto it. [00:08:30] Speaker 02: No, of course. [00:08:31] Speaker 02: I'm sorry, Your Honor. [00:08:32] Speaker 02: I misunderstood what you were saying. [00:08:34] Speaker 02: Our position is that it's not required by international law, not required by international comedy, contrary to the purposes and intent of Congress in enacting the comprehensive framework of the FSIA, and contrary to the unflagging obligation of the federal courts to exercise their jurisdiction when they have it. [00:08:55] Speaker 02: The NML securities case is an important case recently decided by the Supreme Court and it traced the history and purposes of the FSIA in some detail. [00:09:08] Speaker 02: As set forth there, the FSIA was intended to replace [00:09:12] Speaker 02: the ad hoc case-by-case decision-making concerning immunity that existed prior to its enactment, and it replaced it with a comprehensive and consistent set of rules for when a foreign sovereign could be sued in the United States and when it couldn't. [00:09:28] Speaker 00: Concerning immunity, but not exhaustion, those doctrines are different. [00:09:35] Speaker 02: Absolutely, Your Honor, but what we're saying is the only basis that either this court or the Seventh Circuit ever looked to for trying to invoke this exhaustion doctrine, and it is unprecedented and no other court has ever endorsed it, the only basis that this court or the Seventh Circuit ever looked to were considerations of international comedy. [00:10:01] Speaker 02: And what we're saying is international comedy was really the basis for immunity originally, and it is the underlying principle informing the FSIA. [00:10:13] Speaker 02: It is part of the underlying purpose, the reason why the FSIA was enacted. [00:10:19] Speaker 02: We have two Supreme Court cases that, in fact, both sides cite Pimentel and Verlinden, both saying that foreign sovereign immunity is a matter of grace and comedy. [00:10:30] Speaker 02: Mr. Justice Scalia set this out very clearly that if there is an interest toward comedy or toward immunity expressed, it must be in the act. [00:10:47] Speaker 02: If there isn't, that's the end of the consideration. [00:10:51] Speaker 02: What we are really saying is that these considerations of international comedy are baked in the cake of the FSIA. [00:11:00] Speaker 02: any requirement to impose additional comedy considerations on the courts, even after they have fully considered and applied the FSIA, undermines the comprehensive structure that Congress enacted and invites a return to precisely the same sort of ad hoc approach that enactment of the FSIA was intended to cure. [00:11:23] Speaker 04: Is this purely then, in your view, a statutory interpretation determination? [00:11:31] Speaker 04: Not purely. [00:11:33] Speaker 02: Am I right that you're... It ultimately comes down to that, yes, Your Honor, but we understand the argument that the other side makes and we understand the argument that the Seventh Circuit makes in its holding that there are these free-floating comedy considerations that somehow go beyond what was incorporated into the FSIA, but we believe that that isn't [00:11:58] Speaker 02: invalid and wrong argument because ultimately comedy is the principle that underlines the affording of immunity from one state to another. [00:12:09] Speaker 04: I guess my concern is that the United States, there's sort of almost a separation of powers question there for us as a court. [00:12:17] Speaker 04: Should we get the views of the United States on this question? [00:12:22] Speaker 04: Does Congress have the authority to sort of [00:12:26] Speaker 04: package and exhaust the comedy interest that typically we associate with the executive, and push the executive out of the equation, or what if the executive thinks otherwise? [00:12:38] Speaker 02: Well, precisely, Your Honor, that is the purpose of the Foreign Sovereign Immunities Act. [00:12:42] Speaker 02: As the NML v. Argentina case held in some detail, you can go through, step by step, every single [00:12:53] Speaker 02: interest and it's all resolved in the FSIA. [00:12:58] Speaker 02: What we are really saying about comedy, Your Honor, is that whatever considerations of comedy apply, they're already baked in the cake of the FSIA. [00:13:08] Speaker 00: Well, unless there was a background rule and tradition of exhaustion, right? [00:13:18] Speaker 00: If there were, suppose there were, and I know you dispute this, but to me this case comes down to the question whether there was a background. [00:13:28] Speaker 00: rule or practice of exhaustion, whether based on international law or comedy. [00:13:33] Speaker 00: If that were true, I don't know why we would read the FSIA as kind of superseding that background doctrine any more than we would read it as superseding the background doctrine of foreign nonconvenience. [00:13:51] Speaker 02: Well, a couple of things, Your Honor. [00:13:53] Speaker 02: First of all, the doctrine of foreign nonconvenience was expressly acknowledged and recognized in the legislative history of the FSIA. [00:14:01] Speaker 02: Nothing related to prudential exhaustion was. [00:14:04] Speaker 02: In fact, where the framers of the FSIA wanted to include an exhaustion requirement, they knew how to do it, and they put it in there. [00:14:14] Speaker 02: In the terrorism exception, there is [00:14:16] Speaker 02: a requirement to arbitrate any terrorist attacks that occur in the territory of the defendant. [00:14:23] Speaker 00: To arbitrate. [00:14:24] Speaker 00: Excuse me? [00:14:25] Speaker 00: To arbitrate. [00:14:26] Speaker 00: To arbitrate. [00:14:26] Speaker 00: Which is a little bit different from the local remedies rule, which would send the plaintiff to the domestic courts of the offending country. [00:14:39] Speaker 02: It is a little different, but the arbitration might have to take place in the offending country's territory. [00:14:45] Speaker 02: At any rate, Your Honor, it is similar to the exhaustion requirement, and they knew how to put it in there when they needed to. [00:14:52] Speaker 02: But to get back to your underlying point, there is no background requirement ever for these kinds of claims. [00:15:01] Speaker 02: The only credential is gone. [00:15:03] Speaker 00: So let's just pursue that a little bit. [00:15:07] Speaker 00: You said earlier that you anticipate your, you will try to make out your underlying merits claims in international law terms rather than under Hungarian common law. [00:15:22] Speaker 00: And it seems to me that cuts against you on prudential exhaustion because then you have [00:15:30] Speaker 00: you have an individual plaintiff seeking to pursue claims against a sovereign government under international law. [00:15:42] Speaker 00: And that sounds a lot like circumstances in which the local remedies rule applies and tells the plaintiff [00:15:53] Speaker 00: before you make an international incident out of something, at least go to the home courts and see what you can do. [00:16:02] Speaker 00: And that would clearly be true if the United States were espousing these claims. [00:16:07] Speaker 00: So why shouldn't it be true when the aggrieved victims are bringing the claims directly? [00:16:14] Speaker 02: Well, Your Honor, if I said that, I misspoke slightly. [00:16:17] Speaker 02: I thought I said, and I hope I said, general principles derived from international law. [00:16:22] Speaker 00: We do not think... It's either international law or it's Hungarian common law. [00:16:27] Speaker 00: It's got to be one or the other. [00:16:29] Speaker 02: Or potentially federal common law. [00:16:31] Speaker 02: That's another possibility. [00:16:33] Speaker 02: But... U.S. [00:16:34] Speaker 02: federal common law? [00:16:35] Speaker 02: Yes. [00:16:37] Speaker 00: Applied extraterritorially to stuff that happened in Hungary? [00:16:43] Speaker 02: Your Honor, there's a treaty that is expressly applicable to these kinds of claims. [00:16:48] Speaker 02: So yes, I think an argument could be made. [00:16:51] Speaker 02: Once again, we're getting way ahead of ourselves on what law should apply. [00:16:55] Speaker 02: I posited one possibility, Your Honor. [00:16:59] Speaker 00: Go ahead. [00:17:00] Speaker 00: Let's just focus on the possibility that your merits claims will arise from international law. [00:17:09] Speaker 00: And I understand you might have theories, you might have other theories, but just as to that piece of it, that seems pretty close to a lot of situations in which a local remedies rule would apply. [00:17:23] Speaker 02: I disagree, Your Honor. [00:17:25] Speaker 02: Let me tell you why. [00:17:26] Speaker 02: International law, properly so called, is public international law, which governs the relationship between states. [00:17:35] Speaker 02: The local remedies rule, the exhaustion rule, only applies in two situations under international law, where the United States might espouse or a nation might espouse [00:17:46] Speaker 02: the claims of one of its claimants, or if you're going to an international tribunal. [00:17:52] Speaker 00: It has never been applied. [00:17:54] Speaker 00: Let's take your number one. [00:17:56] Speaker 00: Some of these plaintiffs are now United States citizens, and I assume the United States, if it chose, could espouse their claims. [00:18:08] Speaker 00: And that would configure the case of United States espousing the claim of these plaintiffs versus Hungary. [00:18:18] Speaker 02: But that's a very different legal regime. [00:18:20] Speaker 00: It's the same underlying claims. [00:18:22] Speaker 00: It's the identical underlying claims. [00:18:25] Speaker 00: and they would be subject to the local remedies rule. [00:18:28] Speaker 00: And I'm not sure why exhaustion should come out differently based on whether it's Mrs. Simon against Hungary or the United States on behalf of Mrs. Simon versus Hungary. [00:18:44] Speaker 00: What's the relevant difference for exhaustion purposes? [00:18:47] Speaker 02: The relevant difference is comedy considerations come into play when you have a nation-to-nation kind of contest or a nation-to-nation litigation or a nation-to-nation claim. [00:18:59] Speaker 02: And effectively, when you have espoused the claim of one of your plaintiffs, you are saying, we, the United States, are making this claim against Hungary. [00:19:10] Speaker 02: You're not saying the plaintiff is anymore making the claim. [00:19:13] Speaker 02: That is a proper subject of international law and the [00:19:17] Speaker 02: exhaustion rule has been held to apply in such cases. [00:19:20] Speaker 00: However, under the foreign sovereign... I would think you could make an equally compelling argument. [00:19:27] Speaker 00: You might think comedy concerns are worse when a state has to go against not another sovereign that's co-equal on the international plane, but just a single individual citizen of a foreign sovereign. [00:19:43] Speaker 00: That might be a greater affront. [00:19:45] Speaker 02: But that is exactly why the Foreign Sovereign Immunities Act was enacted. [00:19:49] Speaker 02: That is exactly why it is a comprehensive scheme. [00:19:52] Speaker 02: And that is exactly why, although the default general assumption is that the foreign sovereign will be immune, there are certain exceptions. [00:20:00] Speaker 02: And all of those common concerns are already accommodated within the language and the application of those exceptions. [00:20:10] Speaker 02: the lower court completely ignored two other decisions of the same court by Judges Huvel and Judges Kolar-Katelli, holding to that effect. [00:20:22] Speaker 02: Not a single court anywhere has ever suggested that there should be an exhaustion requirement in these circumstances the way the Seventh Circuit did. [00:20:32] Speaker 05: When you say these circumstances, are you saying that no court apart from the Seventh Circuit has ever [00:20:40] Speaker 05: resigned plaintiffs in a genocide case to exhausting processes in the genocidal state? [00:20:49] Speaker 02: I'll go further, Your Honor. [00:20:50] Speaker 02: No court anywhere has ever applied an exhaustion requirement to an FSIA case, regardless of whether it involved genocide or not. [00:21:02] Speaker 02: Other than the Seventh Circuit. [00:21:03] Speaker 02: Other than the Seventh Circuit. [00:21:05] Speaker 00: How much authority is there the other way? [00:21:08] Speaker 00: We have the two district courts in our district, but we don't have courts of appeals. [00:21:12] Speaker 00: But these are very recent decisions, and the ultimate... I understand. [00:21:16] Speaker 00: It just seems like it's a case of early impression. [00:21:20] Speaker 00: One court of appeals has weighed in, and it's gone against you. [00:21:24] Speaker 02: That's true, Your Honor. [00:21:25] Speaker 02: And we're hoping that this court of appeals will go the other way. [00:21:29] Speaker 05: All right. [00:21:29] Speaker 05: We'll hear from the other side. [00:21:30] Speaker 05: They might have a different view on that question. [00:21:43] Speaker 01: Morning, I'm Greg Silbert from Wild for Hungary. [00:21:47] Speaker 01: I'll start with forum non-committee ends and specifically the issues that you asked my friend Mr. Gaston about, the evidence in Hungary and the choice of law questions, and then I will turn to exhaustion. [00:21:58] Speaker 01: So first with respect to evidence, when you think about what Hungarian evidence or witnesses would be presented in this litigation, I think it helps to first look at the kinds of properties that the plaintiff's claim were expropriated. [00:22:14] Speaker 01: Those properties include [00:22:16] Speaker 01: bank accounts, they include businesses, they include artworks, they include jewelry. [00:22:23] Speaker 01: So how would a plaintiff establish in a court of law [00:22:27] Speaker 01: those kinds of losses you would look at. [00:22:30] Speaker 01: Testimony. [00:22:31] Speaker 01: Yeah. [00:22:32] Speaker 01: Well, testimony plus records, Your Honor. [00:22:34] Speaker 05: If you say... Well, they have them. [00:22:35] Speaker 05: A lot of the records were destroyed as well. [00:22:37] Speaker 01: I'm sorry, they have them. [00:22:38] Speaker 01: I'm sure their personal records were all destroyed as well, so... Well, if you had a bank account, there could be bank records. [00:22:44] Speaker 01: If you had a business, there would be business records. [00:22:47] Speaker 01: There could be tax records. [00:22:49] Speaker 05: There could be... Do you have a sense of what the defendants in this case... Again, we're not asking for a pretrial conference, but is there a sense that [00:22:57] Speaker 05: of what kind of evidence they would anticipate or just kind of evidence comes on as a defense in a case like this. [00:23:06] Speaker 05: It's a long, [00:23:07] Speaker 05: time has passed, I don't know how many records will still be available other than in sort of national archives that are largely accessible from any location. [00:23:18] Speaker 01: I couldn't give you a sense of precise numbers, but here's what the plaintiffs themselves allege about that, and you'll find this at page 155 of the Joint Appendix, they say [00:23:27] Speaker 01: that there are voluminous records in Hungary that are vital to their case, and that's what their experts said as well, as the district court noted. [00:23:36] Speaker 01: So I think the plaintiffs have pled themselves out of the argument that there is not going to be [00:23:43] Speaker 01: relevant or important evidence in Hungary. [00:23:45] Speaker 01: And with respect to witnesses, we know that the plaintiff's counsel here traveled to Hungary for the purpose of examining a witness who they described as a key witness in this case. [00:23:58] Speaker 01: And that when they did so, the Hungarian court cooperated and assisted them to try to perform that. [00:24:05] Speaker 05: So that was one witness. [00:24:07] Speaker 05: All right. [00:24:07] Speaker 05: So I'm trying to get a sense again of it seems to me this is either going to be [00:24:13] Speaker 05: documents that are kept by some higher authority than individuals would have had in a case like this, presumably governmental or maybe banking records, which can be acquired in either jurisdiction through subpoenas or letters of regulatory or whatever it is one needs to do for an international dispute. [00:24:29] Speaker 05: This happens all the time in international commercial disputes. [00:24:33] Speaker 01: Remember, too, though, the scale of this case. [00:24:38] Speaker 01: This is a punitive worldwide class, and so it would be, when you're talking about, you know... There's worldwide bankruptcy actions. [00:24:46] Speaker 05: These things happen. [00:24:47] Speaker 05: They happen. [00:24:48] Speaker 05: It gets done. [00:24:49] Speaker 05: Courts manage to do this. [00:24:51] Speaker 05: We're in 2018. [00:24:53] Speaker 05: They have ways of getting documents across borders. [00:24:56] Speaker 05: It's not, unless... [00:24:59] Speaker 05: You're telling me that there's an expectation that there'd be a long line of Hungarian human witnesses testifying who would not be able to travel. [00:25:10] Speaker 05: That would be sort of the harder thing on your end. [00:25:12] Speaker 05: But the documentation thing seems to be not a strong point either way. [00:25:18] Speaker 01: Fair enough, Your Honor. [00:25:19] Speaker 01: I think also that the documentation would be in Hungarian. [00:25:22] Speaker 01: So it's not just a matter of getting it here. [00:25:24] Speaker 05: And remember, it has to get translated anyhow for the plaintiffs. [00:25:27] Speaker 05: A lot of them don't speak Hungarian. [00:25:28] Speaker 01: Many of them don't speak English. [00:25:30] Speaker 05: So you're going to have translation issues either way. [00:25:32] Speaker 05: That seems to be a wash. [00:25:34] Speaker 01: Okay, I think for the point of this factor is not, is it impossible to get the documents? [00:25:41] Speaker 01: The question is, does it point more towards a Hungarian forum or more towards a US forum? [00:25:46] Speaker 01: I think clearly if it points anywhere, it points to Hungary. [00:25:50] Speaker 01: Same with choice of law as the questioning brought out. [00:25:54] Speaker 01: The claims in this case are pure common law claims. [00:25:57] Speaker 01: They look like claims you would see in a state court. [00:26:00] Speaker 01: They're like, [00:26:01] Speaker 01: unjust enrichment, conversion. [00:26:04] Speaker 01: There's something about a fiduciary duty owed by common carriers. [00:26:10] Speaker 04: What law, in your view, applies? [00:26:13] Speaker 01: Hungarian law. [00:26:14] Speaker 04: Historical Hungarian law? [00:26:16] Speaker 01: Well, yes, I think it would be probably the law of Hungary that applied at the time of the events with the caveat that Hungary, by constitutional amendment, has waived any statute of limitations. [00:26:28] Speaker 01: with respect to those claims, so there is some modification there. [00:26:32] Speaker 04: That's hard to imagine that there was a law at the time in Hungary that would respect any property right of any Jew. [00:26:44] Speaker 01: Fair enough. [00:26:45] Speaker 04: So why isn't the plaintiff's counsel correct when he says that we just look to sort of basic law of expropriation that applies in international fora? [00:26:57] Speaker 01: And if there is such a law in international fora, which I don't know, then it would be applicable in the Hungarian courts because as [00:27:07] Speaker 01: My friend also mentioned, Dr. Sanovin, the defense witness testified international law is enforceable in a Hungarian court. [00:27:17] Speaker 05: Is this going to be a case where Hungary says we had a right to take, that we had some lawful right to take their property, or is this just going to be a case about [00:27:26] Speaker 05: what was taken, sort of value damages. [00:27:28] Speaker 05: Surely this isn't going to be a we can test liability. [00:27:31] Speaker 05: We have a right to take their property case under Hungarian law or international law. [00:27:35] Speaker 01: Yeah, I don't imagine an offense is going to be, you know, we had a right to do it. [00:27:39] Speaker 05: The law is probably going to be that there's no dispute that there was no legal right to do this. [00:27:45] Speaker 05: And it's going to be, I think, as you started, who had what that was taken that needs to be proved. [00:27:52] Speaker 05: So isn't that where the forum non-convenience analysis needs to focus? [00:27:56] Speaker 01: Well, that's part of the analysis. [00:27:58] Speaker 01: Another part of the analysis is interest. [00:28:01] Speaker 01: Which jurisdiction has a stronger interest in resolving the controversy? [00:28:05] Speaker 01: That's front and center in the exhaustion analysis, but it's also a factor in the FNC analysis and the public factor. [00:28:13] Speaker 05: And what gives the government of Hungary a greater interest in having this decided on their turf? [00:28:22] Speaker 05: than the plaintiffs in not having to return to the turf of the people who committed genocide. [00:28:28] Speaker 05: The government and the governmental processes of the government that is official policy committed genocide. [00:28:34] Speaker 05: Why is that any weightier? [00:28:36] Speaker 01: Well, Your Honor, let's look at both of the interests, okay? [00:28:41] Speaker 01: So, Hungary's interest in resolving the controversy is, you know, one, this was conduct by Hungary against Hungarian nationals on Hungarian soil, events of great historic significance to Hungary and its history. [00:28:57] Speaker 05: I don't get why you get to cry about your rights when what you did was in violation of [00:29:04] Speaker 05: international law, basic laws of humanity. [00:29:07] Speaker 05: I just don't understand why that outweighs the victims in a case like this. [00:29:12] Speaker 05: This isn't like Pimentel when you had Philippine, where the plaintiffs as well as defendants, and it was about a former Philippine official. [00:29:20] Speaker 05: This was official Hungarian governmental policy, and it seems a little odd to say we were so outrageously in violation of [00:29:30] Speaker 05: every law that governs international law and crimes against humanity that we somehow have a right to force those people, the victims, to come back to Hungary and to our governmental system and to submit to our government again. [00:29:47] Speaker 01: Judge, it was official governmental policy of over 70 years ago. [00:29:51] Speaker 05: I certainly don't disagree with you that the... Well, is there a certain time when that right kicks in, so five years after the war ended and a new government was set up, we wouldn't make them come back, but somehow 70 years, when they're too frail to travel, we'll make them come back? [00:30:08] Speaker 01: I think it depends on the facts of each case, and that's exactly the kind of... Do you assume the emotional trauma dissipates over time? [00:30:16] Speaker 05: I don't know if it does, but I think, again, it's for the district court to... Can you assume for these purposes that it doesn't, since you have the burden on form nonconvenience? [00:30:25] Speaker 05: I think the emotional trauma is a real issue, and the district court considered it and balanced it against the other factors that... I know, but I'm asking about one of those factors, which she thought Hungary had some weighty claim to controlling where this is litigated, and I haven't seen that factor given [00:30:42] Speaker 05: this type of weight in a case when it's purely in a defensive posture by a government. [00:30:50] Speaker 05: They don't have citizens on the... [00:30:53] Speaker 05: plaintiff side of the case. [00:30:54] Speaker 05: It's purely in a defensive posture. [00:30:56] Speaker 05: And they are a government that committed amongst the worst atrocities known in the history of humankind. [00:31:02] Speaker 05: It just seems quite chutzpah, I guess, to say we have the greatest interest here, greater than their interest. [00:31:09] Speaker 05: I mean, that's the only question, greater than the victim's interest in picking their location. [00:31:14] Speaker 01: So no dispute about, you know, among the worst atrocities of all time, and they're atrocities that every nation, every person on earth can and should condemn. [00:31:24] Speaker 01: That does not give the United States any unique interest in hosting these claims. [00:31:29] Speaker 05: Well, am I asking where the plaintiffs chose? [00:31:31] Speaker 05: Four of the plaintiffs are American, right? [00:31:34] Speaker 05: Zero plaintiffs are Hungarian. [00:31:36] Speaker 05: At least zero named plaintiffs are Hungarian. [00:31:39] Speaker 01: As far as we know, none of the named plaintiffs. [00:31:41] Speaker 05: Again, you had the burden. [00:31:42] Speaker 05: So there's no identified plaintiffs that are Hungarian. [00:31:45] Speaker 05: So four American, I think two are Canadian. [00:31:49] Speaker 05: It's a lot more convenient to come here than to go there. [00:31:52] Speaker 05: Folks in Israel, they've made a judgment that it's more convenient to come here. [00:31:55] Speaker 05: That's the rest of the plaintiffs. [00:31:57] Speaker 05: And the Australian, leave it to them to decide where they want to go. [00:32:00] Speaker 05: But I don't understand why you're saying the US has no interest. [00:32:04] Speaker 05: There's four Americans. [00:32:06] Speaker 05: The United States says, [00:32:09] Speaker 05: it has an interest in ensuring compensation for victims of a Holocaust during their lifetimes. [00:32:19] Speaker 05: And so transferring and starting over again counters that government. [00:32:23] Speaker 05: That's what the U.S. [00:32:23] Speaker 05: said in its statement of interest in this case. [00:32:26] Speaker 05: And it seems to me the FSIA exemption that's at issue here [00:32:30] Speaker 05: is a statement, a powerful statement, by both political branches of the United States in legislation that they don't want blood money spent in the United States. [00:32:39] Speaker 05: So that is a pretty powerful U.S. [00:32:42] Speaker 05: interest, is it not? [00:32:43] Speaker 01: I don't view just the jurisdictional commercial nexus of the FSIA as itself a U.S. [00:32:51] Speaker 05: interest that is sufficiently forceful that it could override what we do think is... I'm putting all these factors together on the plaintiff's side because the district court said, yeah, yeah, emotional trauma, but then labeled it, she gave the plaintiff's minimal deference. [00:33:06] Speaker 05: Not on emotional trauma, on the mere fact that this... Overall, their interest after acknowledging the emotional trauma is that it all adds up and gets minimal deference in a case like this. [00:33:18] Speaker 01: I'm sorry, go ahead. [00:33:19] Speaker 05: No, no, you go ahead. [00:33:20] Speaker 05: You can answer. [00:33:21] Speaker 01: I think what the district court said is that the plaintiff's choice of home form deserves less deference here because there is less of a connection to the United States. [00:33:30] Speaker 01: But that, in fact, is what plaintiffs' own cases say, like Carahano, plaintiff's site [00:33:35] Speaker 01: Carano, a Ninth Circuit case for the proposition that, well, if you have at least one U.S. [00:33:40] Speaker 01: plaintiff and other foreign plaintiffs, doesn't mean that the U.S. [00:33:44] Speaker 01: plaintiff's choice of forum gets less deference. [00:33:46] Speaker 01: If you continue reading that decision, what it says is, well, it can mean that there's reduced deference if there are reasons to think. [00:33:54] Speaker 01: that the choice of the U.S. [00:33:57] Speaker 01: forum is not based on factors of convenience or connection to the forum, but in that case, there was a U.S. [00:34:03] Speaker 01: defendant and a strong connection. [00:34:05] Speaker 05: No, but in this case, there's plenty of reasons to understand why they don't want to be in Hungary. [00:34:09] Speaker 05: These are case-specific determinations. [00:34:11] Speaker 05: And the question for now, no one's thrown out door number three, is U.S. [00:34:17] Speaker 05: or Hungary [00:34:18] Speaker 05: And we could sit here for quite some time while we give a list as to why they don't want to go to Hungary for this case and why that's a very powerful interest to be respected. [00:34:29] Speaker 05: And then I was just responding when you say there's no U.S. [00:34:32] Speaker 05: interest, and I think the district court said the same thing, and that just strikes me as wrong when you've got four plaintiffs. [00:34:39] Speaker 05: A third of the plaintiffs are Americans. [00:34:44] Speaker 05: You've got a statement by the United States government in this case that says it wants expeditious relief for victims of Nazi-era genocide and genocidal practices, which won't happen if it's transferred. [00:34:57] Speaker 05: And you've got a statute that says we don't want that money spent on that type of money. [00:35:04] Speaker 05: assuming the outcome in this case. [00:35:06] Speaker 05: For these present purposes, we don't want it spent on our turf. [00:35:09] Speaker 05: That seems like a powerful interest. [00:35:10] Speaker 01: Maybe that's the statute I think you're referring to as the FSIA. [00:35:14] Speaker 01: So maybe that's a good segue to the exhaustion question. [00:35:19] Speaker 01: I think what the FSIA is saying is here, remember, the FSIA is codifying the so-called restrictive theory of sovereign immunity. [00:35:32] Speaker 01: And so it's saying, look, for acts that are considered public acts, [00:35:37] Speaker 01: you are immune, okay? [00:35:39] Speaker 01: The U.S. [00:35:40] Speaker 01: courts cannot touch you, foreign sovereign. [00:35:42] Speaker 01: For acts that are, you know, were non-public or so-called commercial or private, then there may be jurisdiction. [00:35:50] Speaker 01: And so that line that the FSIA is drawing is, and where it takes account of comity for that purpose, the immunity purpose, is [00:36:00] Speaker 01: You know, what can we look at as on the jurisdictional side of the line, somehow commercial or private? [00:36:07] Speaker 01: What can we look at on the immunity side of the line as a public act that is beyond the reach of the United States courts? [00:36:15] Speaker 01: Nothing in the FSIA says, hey, you know, you Article 3 judges, every time, you must go right up to that line every time and exercise jurisdiction in every case. [00:36:27] Speaker 05: We're not going up to any line. [00:36:28] Speaker 05: The political branches made the judgment when they wrote the FSIA. [00:36:33] Speaker 05: They included their judgments on both international law and comity. [00:36:38] Speaker 05: That's what the Supreme Court has told us anyhow, that the statutory judgments reflected. [00:36:43] Speaker 05: those principles. [00:36:44] Speaker 05: And so it seems to me as the branch least qualified to opine on matters of international law and international relations, it seems to me our job is to [00:36:56] Speaker 05: follow their direction, trust their judgments rather than superimposing our own judgments. [00:37:00] Speaker 01: Isn't that right? [00:37:01] Speaker 01: No, Your Honor, it isn't. [00:37:02] Speaker 01: They made a judgment about a different question that is not before you today. [00:37:06] Speaker 01: They made a judgment about where a foreign sovereign is completely immune from jurisdiction and where jurisdiction would be available with a question before you. [00:37:16] Speaker 01: which is one that courts are institutionally competent to answer is, when is there a comedy interest for the courts of the United States to decline jurisdiction even when they have it? [00:37:26] Speaker 01: And that is something that the courts regularly do without specific instructions from the political branches. [00:37:33] Speaker 01: In many cases, it's what the... I'm sorry. [00:37:35] Speaker 01: No, no. [00:37:36] Speaker 01: It's what the United States Supreme Court did with respect to tribal exhaustion in La Plante. [00:37:41] Speaker 01: It looked at comedy. [00:37:42] Speaker 01: It's what a number of different federal courts do based on international comedy concerns in other circumstances. [00:37:50] Speaker 01: It's what we intend to do. [00:37:51] Speaker 05: But when it comes to dealing with foreign governments, foreign sovereigns, when it comes to dealing with foreign sovereigns, we follow the political branch's lead. [00:38:01] Speaker 05: That's the safest course for the courts. [00:38:05] Speaker 05: Is it not? [00:38:07] Speaker 01: Yes, Your Honor, but when the court is asked to exercise jurisdiction over a foreign sovereign or in a case that would predictably create friction with a foreign sovereign, it can take account of those common concerns. [00:38:21] Speaker 01: The Supreme Court did so. [00:38:23] Speaker 05: So we can say, I mean, I guess the question, I think you're assuming that plaintiffs are asking us to take jurisdiction. [00:38:28] Speaker 05: I think my questions are assuming Congress is telling us to take jurisdiction when plaintiffs ask. [00:38:32] Speaker 01: Congress is telling you whether you have jurisdiction. [00:38:35] Speaker 01: It's not telling you that in every case you must exercise it. [00:38:39] Speaker 01: Yes. [00:38:39] Speaker 04: It seems like there's a bit of a double counting in the sense that under as Justice Breyer's opinion recognized in Altman. [00:38:52] Speaker 00: Altman, thank you. [00:38:54] Speaker 04: Yeah. [00:38:57] Speaker 04: In order to show an expropriation in violation of international law, which is what's required to even be actionable under the Foreign Sovereignty Act, one typically would have to show that they had exhausted, in this case, Hungarian remedies. [00:39:12] Speaker 04: But because this is a genocidal expropriation, that [00:39:18] Speaker 04: exhaustion requirement falls away, right? [00:39:21] Speaker 04: And so it seems to me like you're kind of doing a double counting and saying like, yeah, the exhaustion such as it is, is encompassed within the FSIA, except where it's not, as here, and then we're going to graft it on top. [00:39:35] Speaker 04: And that just seems to me like fighting against Simon 1, that basically that's a done deal. [00:39:44] Speaker 04: If this is an expropriation and violation of international law, the next question, foreign nonconvenience, [00:39:52] Speaker 04: And there's no additional comedy exhaustion requirement. [00:39:57] Speaker 01: I don't think it is fighting against Simon 1 for two reasons. [00:40:01] Speaker 01: Judge Pillard, first of all, remember that Judge Sreenivasan, the Simon 1 panel itself, [00:40:07] Speaker 01: in that decision recognized that the district court should decide on remand whether exhaustion based specifically on international comedy should be applied in this case. [00:40:18] Speaker 01: So if that panel understood its decision to preclude comedy based exhaustion, its remand instruction would make sense. [00:40:26] Speaker 01: Number two, the exhaustion that you're talking about [00:40:29] Speaker 01: The exhaustion under international law for a takings requirement is a mandatory jurisdictional kind of exhaustion, right? [00:40:38] Speaker 01: That's not the kind that's before you today. [00:40:40] Speaker 01: The kind of exhaustion that's before you today is a discretionary, comedy-based, non-jurisdictional exhaustion that applies based on the facts of a particular case, not in every case. [00:40:51] Speaker 05: It is not exhaustion. [00:40:53] Speaker 05: It is not exhaustion. [00:40:57] Speaker 05: In any sense in which I recognize it, it is closing the courthouse doors unless they can force them open, having tried every other forum that anyone can think of, right? [00:41:10] Speaker 05: They have to go back. [00:41:12] Speaker 05: and do the various sort of exhaustion procedurally, that substantively international law doesn't require them to, right? [00:41:20] Speaker 05: That's what Judge Pillard was saying. [00:41:21] Speaker 05: Substantively international law doesn't require you to go back to the genocide perpetrator and ask them to pay first. [00:41:29] Speaker 05: But now we're saying as a matter of procedure, [00:41:32] Speaker 05: even though Congress didn't write it anywhere in the text of the FSIA, we're supposed to superimpose that and say you only get to pry this door open after you have gone back to the perpetrators first. [00:41:44] Speaker 01: Well, and if their path to remedy in Hungary is unreasonably or arbitrarily barred, then the doors of the United States courts do remain open. [00:41:56] Speaker 05: I get that, but presumably, so on the front end, the form of inconvenience and prudential exhaustion of utility requirements going to do that analysis. [00:42:05] Speaker 05: So the only way they're going to get to come back here, who knows how much longer down the road, [00:42:11] Speaker 05: is if they've got an argument and they're asking us to write an opinion deciding that the Hungarian courts, we sit and review of the Hungarian court process and say, it wasn't good enough. [00:42:23] Speaker 05: Now, that's where I want to get back to my political brand, but the only way it's not going to be raised judicata is if we say the Hungarian courts did a terrible job here. [00:42:34] Speaker 05: We would have to say they did not give them fair process or something went wrong in the process. [00:42:40] Speaker 05: And that's where I don't understand how we can write into the FSIA. [00:42:44] Speaker 05: this very extraordinary intrusion on international affairs that would put this court in the position of reviewing, grading the homework of the Hungarian courts after the fact. [00:42:56] Speaker 05: Can we write that in and assume we can do that on our own? [00:43:00] Speaker 01: Judge, whatever intrusion or international friction might result from this court saying that another court's judicial process was unreasonable, [00:43:10] Speaker 01: there would be a much greater intrusion and potential for friction for this court to impose potentially massive liability on a foreign sovereign for events that, while yes, unbelievably horrific, happened decades ago, where plaintiffs here seek remedies that, proportionate to the Hungarian economy, could be quite— You know, the Hungarian government's going to get that upset when U.S. [00:43:36] Speaker 05: citizens get compensated in U.S. [00:43:39] Speaker 05: courts? [00:43:40] Speaker 05: for a genocidal taking? [00:43:42] Speaker 01: This is a worldwide class. [00:43:48] Speaker 05: Would your position be the same if it was just the U.S. [00:43:52] Speaker 05: plaintiffs? [00:43:53] Speaker 01: If the, I think if it was a U.S. [00:43:55] Speaker 01: plaintiff who felt the injury in the United States at the time of the taking, as in, for example, the... Oh, okay, so that's a very, you're getting way more nuanced than I am. [00:44:04] Speaker 05: What I'm asking is, if the only identified or named plaintiffs in this case were U.S. [00:44:09] Speaker 05: citizens, would your position be different? [00:44:11] Speaker 01: I think there would, in that case, I think the grounds for exhaustion would still be strong, not as strong as... I'm talking about how affronted Hungary is going to be that our courts provide a remedy. [00:44:22] Speaker 01: I think if you had former U.S. [00:44:25] Speaker 01: citizens or the descendants of people who had suffered a wrong at the United States' hands in the United States' borders, and some of those people moved to another country, pick your country, sought a remedy there, and that foreign court imposed very substantial damages on the United States, would that create a comedy issue? [00:44:45] Speaker 01: Yeah, I think it would. [00:44:47] Speaker 04: So what, just backing up, what are the remedies available to these plaintiffs in Hungary, and when did they become available? [00:44:56] Speaker 01: So there's kind of two categories of remedies that are discussed in Dr. Sonovan's declaration. [00:45:04] Speaker 01: One of them has to do with the kinds of claims that these plaintiffs could bring now. [00:45:08] Speaker 01: The other one has to do with other attempts and remedies provided by Hungary to provide compensation for these injuries, even though some of those processes are no longer available. [00:45:20] Speaker 01: So I understood your question to be about what kinds of claims would they assert now. [00:45:25] Speaker 01: What Dr. Sadovan discusses there are unjust enrichment type claims. [00:45:31] Speaker 01: These would be under Hungarian law, of course, but they would be, he describes them as like unjust enrichment type claims, property claims, contractual damages, extra contractual damages. [00:45:41] Speaker 01: So, you know, things that you'd have to translate from Hungarian law to U.S. [00:45:46] Speaker 01: law, but I think they're not so different from the kinds of legal claims that we have seen. [00:45:53] Speaker 05: current law will apply and not the law that existed at the time of these takings? [00:45:57] Speaker 01: I think, again, I don't know under Hungarian law exactly what law would apply. [00:46:05] Speaker 01: I do think it would be a question under Hungarian law. [00:46:07] Speaker 05: So if there's a question, so if it's not at all settled whether they would apply the law that existed in Hungary at the time. [00:46:13] Speaker 05: If one option is that the law that would be applied would be the law that existed in Hungary at the time of the genocide, does that factor? [00:46:20] Speaker 01: Does that factor? [00:46:21] Speaker 01: I'm sorry. [00:46:21] Speaker 01: If what Your Honor is asking is would Hungary say, well, although these are like the worst things anyone could ever do at the time they were done under some kind of legal process and therefore these takings are legal, no, that's not going to be the position. [00:46:37] Speaker 01: And in fact, I'm sorry. [00:46:39] Speaker 04: I have just a much more sort [00:46:42] Speaker 04: particular question. [00:46:44] Speaker 04: In the process of holding that the plaintiffs hadn't shown that exhaustion in Hungary would be futile, the district court so found that the plaintiffs hadn't met their burden to show that it would be futile to go to Hungary. [00:47:02] Speaker 04: And then in assessing the forum non-convenience in which the burden is on your client. [00:47:10] Speaker 04: That's correct. [00:47:11] Speaker 04: She cross referred to the lack of a showing that there was any futility and arguably that failed to properly account for the proof burden. [00:47:23] Speaker 04: Am I right about that? [00:47:25] Speaker 01: No, she did account for the proof burden, and that's clear for two reasons. [00:47:30] Speaker 01: First of all, if you look a page or two earlier, the district court specifically states that the defendant spared the burden of proof of forum non-convenience. [00:47:39] Speaker 01: So there's no doubt that she knows who's carrying the burden. [00:47:41] Speaker 04: But did she cash it out? [00:47:43] Speaker 01: She did cash it out. [00:47:45] Speaker 01: When you look at the actual analysis that she made for both futility and for adequate and available forum, that analysis begins with defendant's evidence. [00:47:57] Speaker 01: And the evidence that defendant submitted on this point is extremely extensive. [00:48:01] Speaker 01: It talks about basic protections under [00:48:04] Speaker 01: Hungarian's basic law talks about amenability to process. [00:48:08] Speaker 01: It talks about the independence of the judiciary, the kinds of claims that could be brought, remedies that have already been provided in Hungary, including $38 million for compensation vouchers for property claims, $178 million for [00:48:23] Speaker 01: loss of life claims, another $14 million given to a Jewish foundation. [00:48:29] Speaker 01: It talks about the enforceability of international law. [00:48:32] Speaker 01: It talks about recent claims by Holocaust survivors in Hungary that were successful and that did recover lost property. [00:48:41] Speaker 01: So there is a great deal of evidence by defendants [00:48:46] Speaker 01: that the district court cited and relied on. [00:48:50] Speaker 01: It then looked at Mr. Hanek's declaration submitted by plaintiffs and other evidence, and it asked whether that shows that nonetheless the Hungarian forum would not be adequate and available, and she found that it doesn't. [00:49:07] Speaker 01: So she applied the right analysis. [00:49:10] Speaker 01: including relying extensively on defendant's evidence. [00:49:13] Speaker 01: It's not a case where she said, you know, gee, these two sides are in aqua poise, but the tie goes to the runner. [00:49:19] Speaker 01: So I'm going to find that, you know, the plaintiffs have not met their burden here. [00:49:24] Speaker 04: And in terms of, oh, go ahead. [00:49:26] Speaker 00: Just back to exhaustion for a second. [00:49:27] Speaker 00: Yes. [00:49:28] Speaker 00: My instinct is that exhaustion and immunity are very different. [00:49:34] Speaker 00: But the other side has this pretty good argument that here, [00:49:38] Speaker 00: They may not be so different to the extent that when you go to you go to Hungary, unless something really strange happens in the Hungarian courts. [00:49:50] Speaker 00: that adjudication will have race judicata effect such that these plaintiffs won't be able to come back here or go anywhere else. [00:50:00] Speaker 00: And so the upshot is they never get to come back here. [00:50:03] Speaker 00: That starts to maybe look more like an immunity concept than like an exhaustion concept. [00:50:09] Speaker 01: Just like a forum non-convenience dismissal, it may be that those claims never return to the United States, but it doesn't make a forum non-convent, an FNC dismissal tantamount to immunity anymore than it makes this exhaustion. [00:50:27] Speaker 00: No, but FNC has tougher requirements for you to meet. [00:50:35] Speaker 01: The burden is different, but as your question of, isn't this like immunity? [00:50:40] Speaker 00: The burden is different, and you have to show a lot of things. [00:50:43] Speaker 00: You have to show that the center of gravity of the litigation is over there. [00:50:48] Speaker 01: And we think that did show that. [00:50:50] Speaker 01: I get that. [00:50:52] Speaker 01: To your point, the thing about the immunity that is defined by the FSIA, it is immunity that applies in every case, and it is jurisdictional and non-discretionary, meaning that when you have it, and by the way, we still do argue that we haven't, the district court never reached that issue, but if you have it, it means that the federal courts cannot touch the foreign sovereign on this case ever under any circumstances. [00:51:20] Speaker 01: Even at the strongest iteration of the exhaustion doctrine that we're discussing here, it is a discretionary doctrine that depends on the facts of a particular case when the comedy. [00:51:33] Speaker 00: When they try to come back here and you plead race judicata, how do we get around that? [00:51:43] Speaker 01: You would apply preclusion principles, and if we win, we win, and if they win, they win. [00:51:47] Speaker 01: That sort of makes it seem more like an immunity. [00:51:52] Speaker 01: I agree with you to this extent, Judge Katz. [00:51:55] Speaker 01: The result of the exhaustion dismissal may be that they never have their claims litigated on the merits in the United States courts, but that's true of [00:52:06] Speaker 01: of any kind of dismissal, FNC or any other kind. [00:52:10] Speaker 04: No, not an international forum. [00:52:12] Speaker 04: That's the whole point, right? [00:52:14] Speaker 04: I mean, that's the dodge brief that an international forum doesn't recognize a race-judicata forum. [00:52:22] Speaker 01: Proclusion. [00:52:23] Speaker 04: Yeah. [00:52:23] Speaker 04: And that's the principle forum in which this doctrine is alive and kicking. [00:52:29] Speaker 01: Fair enough. [00:52:31] Speaker 01: Again, I think where comedy directs that another court or another sovereign has a stronger interest in adjudicating controversy, what it means is [00:52:46] Speaker 01: that other sovereign has the right to adjudicate the controversy in its courts under the framework of its own laws to say, well, you know, we under, even where there is a comedy interest in allowing that, yeah, we're going to let you make the decision, but then, you know, then we're going to ignore it in every case doesn't necessarily give effect to the comedy interest that [00:53:10] Speaker 01: direct exhaustion in the first place, and I think, you know, your point. [00:53:16] Speaker 05: Is this exhaustion principle, I don't even think we should call it exhaustion, but I'll do that for now. [00:53:22] Speaker 05: Is your exhaustion theory, other than the South Circuit, has it ever been applied to cases of genocide, or is it applied in other kinds of commercial disputes and things like that? [00:53:34] Speaker 05: Has it ever been applied by anyone? [00:53:37] Speaker 05: in an international tribunal or anywhere in genocide cases? [00:53:42] Speaker 01: Yes, so in the Ongaro-Binagas case in the 11th Circuit, international comedy was the basis for an exhaustion dismissal for World War II era cases involving Holocaust assets like this one. [00:53:58] Speaker 01: Now that was not, I think Mr. Gaston said it had not been applied in an FSIA case, and that's correct because the defendants in that case were private entities, but [00:54:09] Speaker 01: as Justice Katz has said earlier, if anything, the comedy interests are even stronger when the United States hails a co-equal sovereign into its courts and takes money out of the public fist. [00:54:23] Speaker 05: Well, it might be, but the difference is, of course, that Congress has already made a comedy judgment in the FSIA that you didn't have in that case. [00:54:31] Speaker 05: That's what I'm struggling with. [00:54:32] Speaker 01: And I think our response there, and I think Judge Katz has mentioned it earlier, is that the judgment that Congress made about comedy in the FSIA is a judgment about immunity. [00:54:44] Speaker 01: It doesn't cash out any comedy interest. [00:54:48] Speaker 04: But it goes beyond a judgment about [00:54:53] Speaker 04: Immunity, I mean, it's a fundamental judgment about how we're going to treat acts as whether they're sovereign acts or whether they're the commercial acts of a sovereign, right? [00:55:05] Speaker 04: And to the extent that they're commercial acts of sovereign, the theory that the FSIA codifies is they don't, that sovereign for those types of functions is no longer entitled to the immunity. [00:55:18] Speaker 04: And in a way, you're bringing it back in by saying, but we still have to recognize that it's a sovereign and therefore give it the comedy-based immunity or exhaustion that you're advocating, no? [00:55:31] Speaker 01: So again, comedy-based exhaustion has been applied not only to sovereigns by the Seventh Circuit in Fisher, but to non-sovereign private defendants in other cases. [00:55:45] Speaker 01: Obviously, those aren't FSIA cases, because the FSIA applies only to sovereigns. [00:55:50] Speaker 01: But in Rio Tinto, in Ongaro-Banagas, there are other international comedy documents, too. [00:55:56] Speaker 01: There's the Foreign Commission. [00:55:58] Speaker 00: Ongaro is an ATS case. [00:56:00] Speaker 01: I believe it was ATS, yeah. [00:56:04] Speaker 04: And there we don't have the, I mean that's just a bare tort claim, so there's very different arguments for taking account of, but I get your point, which is the theoretical point, which is what I was asking you, so I see that that's a responsive answer because you're saying, well, [00:56:19] Speaker 04: even where an entity is being sued qua commercial actor that the courts have looked at. [00:56:27] Speaker 01: And remember that comedy and reciprocity go hand in hand. [00:56:30] Speaker 04: Comedy and reciprocity what? [00:56:31] Speaker 01: And reciprocity go hand in hand. [00:56:33] Speaker 01: And so what the Supreme Court said in Keyabell, which was an ATS case, is look, if our courts can hail foreign corporations [00:56:46] Speaker 01: into our jurisdiction and impose liability on them for acts that they did to foreigners on foreign soil, then other courts will do the same to us. [00:56:57] Speaker 01: And the court made a very similar point about foreign sovereigns in the [00:57:02] Speaker 01: Venezuela v. Helmer case that was decided just last term, which came out of this court, it said, look, if we embroil other sovereigns in expensive time-consuming litigation, they will do the same to us. [00:57:18] Speaker 01: And so that's the question. [00:57:19] Speaker 01: The comedy interest is ultimately a reciprocity interest. [00:57:24] Speaker 01: And yes, these events are horrible beyond imagination. [00:57:30] Speaker 01: You know, they occurred 70 years ago in Hungary against Hungarians. [00:57:36] Speaker 01: And the question is, can another court, another country's courts, correct historical wrongs that occurred in the United States to American nationals in prior generations and impose remedies that if the plaintiffs get... Of course, Hungary's had 70 years to compensate these plaintiffs and hasn't. [00:57:57] Speaker 05: Nothing stops Hungary. [00:57:59] Speaker 05: from addressing their claims on its own while they're litigating here. [00:58:03] Speaker 01: So, Your Honor, in 1992, Hungary enacted the Second Compensation Act, which again resulted in $38 million paid out to claimants. [00:58:11] Speaker 05: It then enacted... How many claimants? [00:58:13] Speaker 01: There were 61,000, I believe, whose claims were recognized, about 70,000 who submitted claims. [00:58:20] Speaker 01: That was for property loss. [00:58:22] Speaker 05: Then it enacted... There's nothing that stops you. [00:58:24] Speaker 05: And again, I don't mean to assume the merits here, but if Hungary [00:58:28] Speaker 05: had an interest in compensating these plaintiffs, then nothing about doing litigation here would stop that, would it? [00:58:38] Speaker 01: Well, I think these plaintiffs would pursue these claims of the United States courts irrespective of the compensation that has already been provided by Hungary and whatever other compensation could be. [00:58:52] Speaker 01: These claims are, if the plaintiff's claims go forward and if there's jurisdiction, they're going to seek a recovery from the United States courts. [00:58:59] Speaker 01: And whatever else happens, I think, you know, happens. [00:59:03] Speaker 05: But I don't think the plaintiffs are here saying, well, you know, we're going to sue unless... Since you keep talking about 70 years ago, and it's, I mean, 70 years Hungary's had to give them what they consider adequate compensation. [00:59:17] Speaker 01: Fair enough, Your Honor, but I think, you know, to your point about, well, is it, can you, can you ask these plaintiffs to return to Hungary, the place where these horrible things happened to them, the fact that it happened, you know, it was 70 years, over 70 years ago, you had the fascist Hungarian regime, then you had the [00:59:38] Speaker 01: communist Hungarian regime than you had, you know, a more open government than you have today. [00:59:43] Speaker 01: Hungary is a member of the United Nations, it's a member of the European Union. [00:59:48] Speaker 01: I think we should be reluctant to say that in other countries' courts, because it committed a past wrong, are somehow permanently unavailable or inadequate [01:00:00] Speaker 01: to address their own conduct. [01:00:02] Speaker 01: Again, you know, the question is, as a matter of reciprocity, do we want another country's courts making the same judgment about the United States and imposing remedies on behalf of people who were American nationals at the time of the events they complain of who, for one reason or another, go to another country's courts and say, you know, whatever we should have gotten from the United States, we didn't get it. [01:00:29] Speaker 01: or we got something, but it wasn't enough. [01:00:32] Speaker 01: And so, you know, you courts of Hungary or any other country in the world, you closed the gap. [01:00:38] Speaker 01: I think, you know, in those circumstances, we would think that the first stop for the plaintiffs ought to be the United States courts. [01:00:47] Speaker 01: And for the same reason, the first stop for the plaintiffs in this case ought to be the courts of Hungary. [01:00:52] Speaker 05: All right. [01:00:52] Speaker 05: Thank you very much. [01:00:53] Speaker 01: Thank you. [01:00:56] Speaker 05: Mr. Gaston, do you have any time left? [01:01:00] Speaker 05: We'll give you two minutes. [01:01:01] Speaker 02: Thank you. [01:01:02] Speaker 02: Thank you, Your Honor. [01:01:04] Speaker 02: One point I'd like to start out with is this question of sitting in judgment on the other states' courts. [01:01:11] Speaker 02: Well, I would submit that we have already done that by entering into a treaty which required Hungary to pay the exact same compensation that we are asking for here today. [01:01:21] Speaker 02: That was the 1947 treaty, which [01:01:23] Speaker 02: originally was thought to have preclusive effect against this lawsuit, but which this court held did not have such effect. [01:01:32] Speaker 02: Nonetheless, it did cover the same subject matter and it did cover Hungarians who were seeking compensation from their own government. [01:01:39] Speaker 02: And it required that payment. [01:01:41] Speaker 02: So it's a prima facie indication that the United States felt and still feels, I believe, that it does have a vital interest here in seeing the rule of law carried out, even in Hungary. [01:01:57] Speaker 02: I'd like to also touch very briefly on this idea that [01:02:01] Speaker 02: whatever problem there was with the allocation of the burden of proof is essentially a harmless error. [01:02:09] Speaker 02: That is not the case. [01:02:10] Speaker 02: The record in this case contained two declarations by our expert witness on the Hungarian legal regime, Dr. Hanak, who concluded that for plaintiffs in this case, meaningful remedies are simply not available and that because of the toxic anti-Semitic environment in Hungary, [01:02:27] Speaker 02: Hungarian Jews have a legitimate concern that they cannot receive a fair and unbiased hearing. [01:02:33] Speaker 02: In response, their experts said nothing. [01:02:38] Speaker 02: In fact, you would have to look at the record long and hard to find anything responding to that. [01:02:43] Speaker 02: I believe there is absolutely nothing. [01:02:45] Speaker 02: So what did the district court do? [01:02:47] Speaker 02: The district court, one, credited some newspaper article that was attached to Hungary's reply brief. [01:02:55] Speaker 02: not talking about any sort of genocidal expropriation similar to what we have here, but essentially a bailment case where some family had entrusted to a museum some of its property and then it couldn't get it back. [01:03:09] Speaker 02: And this was including its property in the 1950s. [01:03:12] Speaker 02: So what I'm trying to make, the point I'm trying to make, Your Honor, is not so much the detail, but the fact that [01:03:19] Speaker 02: Misallocating the burden of proof hurt us and prejudiced us severely in this case because otherwise you can't just disregard what an expert witness says. [01:03:31] Speaker 02: This wasn't a battle of the witnesses. [01:03:33] Speaker 02: This was a battle of our expert witness and nothing on the other side. [01:03:38] Speaker 02: And nonetheless, the nothing on the other side prevailed. [01:03:41] Speaker 00: You've alleged a worldwide class. [01:03:44] Speaker 00: Do you have any rough estimate of how many class members live in the US, how many live in Hungary, and how many live somewhere else? [01:03:56] Speaker 02: Well, there are very few, if any, in Hungary. [01:03:58] Speaker 02: We don't believe there are too many surviving Holocaust [01:04:02] Speaker 02: There are too many Holocaust survivors who still chose to go back to Hungary and live there. [01:04:08] Speaker 02: We do believe there is a locus here in the United States, a clump of important group of survivors. [01:04:17] Speaker 02: There are some, as the court noted, in Canada, maybe one or two in Australia, and another clump in Israel. [01:04:24] Speaker 02: Not a single person, if you ask them, would ever want to go back to Hungary [01:04:28] Speaker 02: to seek compensation in these circumstances. [01:04:31] Speaker 02: We have on the record statements from some of our clients that they did try back in the 1990s and were treated with abuse and ridicule. [01:04:43] Speaker 00: But very small number currently in Hungary. [01:04:46] Speaker 00: Is it fair to assume that there are more class members outside the U.S. [01:04:54] Speaker 00: than there are inside the U.S.? [01:04:56] Speaker ?: ? [01:04:57] Speaker 02: Possibly, Your Honor. [01:04:58] Speaker 02: I have no way of really making that determination. [01:05:00] Speaker 02: I know there are these clusters, and certainly the United States is one major cluster, Canada perhaps, and certainly Israel. [01:05:10] Speaker 02: But I doubt there are any class members. [01:05:12] Speaker 02: We certainly don't know of any in Hungary. [01:05:15] Speaker 00: Just one more question from me. [01:05:17] Speaker 00: To the extent your merits theory is an international one, [01:05:24] Speaker 00: Is there any international tribunal that could hear that claim? [01:05:29] Speaker 02: I don't believe so your honor. [01:05:31] Speaker 00: And is there any precedent for the domestic courts adjudicating international claims of that nature? [01:05:42] Speaker 00: Usually it happens in international tribunals. [01:05:45] Speaker 02: Well, Your Honor, once again, we are not saying that this is an international claim. [01:05:50] Speaker 02: You asked me earlier what law would apply, and I said general principles derived from international law. [01:05:57] Speaker 02: That does not mean that international law or public international law applies to our claim, and we're not claiming that. [01:06:04] Speaker 02: And also, if we have to go under Hungarian law, we can and will, Your Honor. [01:06:09] Speaker 02: That is a determination yet to be made. [01:06:11] Speaker 02: We have no problem with that. [01:06:13] Speaker 02: However, we don't think that the Hungarian law of 1945, which deprived Jews of all their rights and which allowed, should apply, of course. [01:06:22] Speaker 02: And that's really what we're trying to avoid. [01:06:28] Speaker 02: The bottom line, Your Honor, is that we believe that there's no way to justify the conclusion that defendants have met their heavy burden of showing that Hungary is the strongly preferred forum for this litigation. [01:06:40] Speaker 02: Accordingly, we ask that you reverse and remand with clear instructions to the district court that there is no basis for FNC dismissal. [01:06:49] Speaker 05: Thank you. [01:06:51] Speaker 05: Thank you. [01:06:51] Speaker 05: Thanks to both counsel for excellent arguments. [01:06:53] Speaker 05: The case is submitted.