[00:00:01] Speaker 00: Case number 20-7040, Broidy Capital Management, ALC and Elliot Broidy versus Nicolas D. Muzin et al. [00:00:08] Speaker 00: at balance. [00:00:09] Speaker 00: Mr. Obermeyer for the at balance, Mr. Coffin for the at police. [00:00:18] Speaker 03: Good morning, Council. [00:00:19] Speaker 03: Mr. Obermeyer, you may proceed when you're ready. [00:00:22] Speaker 05: Good morning, your honor. [00:00:22] Speaker 05: Thank you, and may it please the court. [00:00:24] Speaker 05: My name is Steve Obermeyer, and I represent Appellants Nicholas, Muzzin, and Stonington Strategies LLC. [00:00:30] Speaker 05: I'm also arguing today on behalf of Appellants Joseph Alloham and Gregory Howard. [00:00:36] Speaker 05: This case challenges the legality of diplomatic decisions made by the foreign sovereign state of Qatar. [00:00:43] Speaker 05: The Ninth Circuit has now held that Qatar is entitled to immunity for the exact same wrongful conduct that is alleged in this case. [00:00:51] Speaker 03: But Mr. Obermeyer, Cutter's not a party here, and there's no evidence that the defendants in this case were employed by Cutter or that Cutter chose them as its agents here. [00:01:06] Speaker 03: In fact, I'm not even sure why you have a right to appeal given those facts. [00:01:15] Speaker 03: Can you first address our appellate jurisdiction? [00:01:17] Speaker 05: Yes, I'd be happy to, Your Honor. [00:01:19] Speaker 05: First of all, [00:01:20] Speaker 05: What's been alleged is that appellants are agents of cutter acting at the direction of cutter. [00:01:27] Speaker 05: The whole theory of of Mr boys case is that cutter decided to do not to target Mr body but to do a hacking and dissemination. [00:01:38] Speaker 05: scheme, which he directed appellants to do. [00:01:43] Speaker 05: Those are the allegations in the complaint. [00:01:44] Speaker 05: So the absence of evidence at this point, I don't think is an issue because that's what Mr. Gordy says happened. [00:01:49] Speaker 05: He pled himself through that. [00:01:51] Speaker 03: In subject matter jurisdiction, we don't always just go on the pleadings. [00:01:55] Speaker 03: And the records suggest the lack of even a formal agency relationship between defendants and Qatar, the contract that [00:02:05] Speaker 03: is in the record said that the embassy doesn't acknowledge these people as their agents. [00:02:12] Speaker 05: Well, the contract, the contract in the record, your honor says that that appellants were hired to to do various lobbying and diplomatic work on behalf of cutter. [00:02:21] Speaker 05: And then Mr. Brody goes farther and alleges that appellants were directed to conspire to hack and then distribute that distribute materials from the hat from the hack in order to advance its political [00:02:35] Speaker 05: agenda against Mr. Broidy. [00:02:37] Speaker 03: I'm reading from Mr. Muzzin's opening brief on the motion to dismiss, which the other briefs incorporated by reference on page 23, note 11, he says, the Qatari embassy states that does not establish an agency relationship between Qatar and Stonington. [00:02:52] Speaker 03: And it states to an exhibit in the California litigation. [00:02:55] Speaker 05: That's correct. [00:02:56] Speaker 05: And that's what the contract says. [00:02:57] Speaker 05: But what's alleged is that what's alleged in the case is that the relationship started off doing lobbying [00:03:04] Speaker 05: and turned into, I don't know the exact word, something worse when Qatar directed appellants to participate in a hacking conspiracy. [00:03:12] Speaker 03: Well, you're going to help us out. [00:03:13] Speaker 03: The complaint alleges you're going to help us out in all these various ways. [00:03:18] Speaker 03: But it also says, and you're not our agent, by the way. [00:03:21] Speaker 05: Well, the contract said that, but the complaint alleges that they are Qatari agents. [00:03:27] Speaker 05: And I would point you to, [00:03:28] Speaker 05: Actually, Mr. Brody's own words in his opposition to the interlocutory appeal motion on page eight, he says that appellants were plainly agents for Qatar. [00:03:37] Speaker 05: And he also says that he alleges that defendants acted at Qatar's direction. [00:03:42] Speaker 05: He also says in his opposition brief here that Qatar and appellants sought to isolate and marginalize Brody's influence through a tried and true Qatari tactic, an illegal hacking and media distribution. [00:03:55] Speaker 05: So that's Brody's own characterization of his complaint. [00:03:58] Speaker 03: I understand that you're relying on the characterizations in the complaint, but there's something peculiar about basing our jurisdiction on those allegations when we have reason to believe, when we don't have any reason to believe that Qatar has actually sought to assert its immunity for your client. [00:04:21] Speaker 05: Well, I guess a few things, Your Honor. [00:04:23] Speaker 05: On the jurisdictional point, this court has been clear that foreign sovereign immunity is a collateral order doctrine issue. [00:04:31] Speaker 05: Conduct-based immunity, that is what we're dealing with here, is immunity of the foreign sovereign. [00:04:38] Speaker 03: So what case do you have where there's interlocutory appellate jurisdiction and there's no foreign state or, in the case of Samantar, putative [00:04:50] Speaker 03: voice on behalf of a period of sovereign involved in any way. [00:04:55] Speaker 05: I'm not sure about the absence of the sovereign in any way, but the cases I'm thinking of are Farhang, I believe it's the Malani or Matani decision in the 11th Circuit, Farhang is- Mamani? [00:05:05] Speaker 05: Mamani, right. [00:05:07] Speaker 05: Farhang is- I'm sorry, Farhang is in the 9th Circuit, and then also Samantar. [00:05:14] Speaker 03: The cases you cited, I thought, were P&ID versus Nigeria and Kilburn versus Libya from this court. [00:05:22] Speaker 03: And those cases both involve sovereigns, claims against sovereigns. [00:05:28] Speaker 05: Yes, Your Honor. [00:05:29] Speaker 05: Specifically, this court, we cite Kilburn, we cite P&ID. [00:05:34] Speaker 05: But those cases, like I said, say that foreign sovereign immunity satisfies the standard for collateral order doctrine. [00:05:42] Speaker 05: and conduct-based foreign sovereign immunity is the immunity of the foreign sovereign. [00:05:49] Speaker 05: So it's our position that that's covered. [00:05:51] Speaker 05: And the cases I was referring you to from other circuits are cases that have held that conduct-based immunity is immediately appealable under the collateral order doctrine. [00:06:01] Speaker 02: Mr. Obermeyer, on this point, you have some burden when it comes to the jurisdiction question here and some burden when it comes to your assertion of immunity. [00:06:12] Speaker 02: put aside the complaint and put aside the contract. [00:06:16] Speaker 02: Do you represent that Musen was an agent of Cutter? [00:06:26] Speaker 05: I don't know that I can represent anything beyond what's been alleged at this point, Your Honor. [00:06:30] Speaker 02: Do you represent, so you can't represent that Stonington is an agent of Cutter? [00:06:35] Speaker 05: They were acting as contractors for Cutter, sure. [00:06:38] Speaker 05: That's not my question. [00:06:39] Speaker 02: Right, they registered them. [00:06:41] Speaker 05: They registered under Farah as agents of Qatar, yes. [00:06:45] Speaker 02: So are you representing that they are agents of Qatar? [00:06:50] Speaker 05: Yeah, they registered under Farah. [00:06:51] Speaker 05: They are agents of Qatar. [00:06:54] Speaker 03: OK. [00:06:55] Speaker 03: And you have not requested an opportunity, if we were to look beyond the pleadings, an opportunity to establish the direction by Qatar in the district court. [00:07:05] Speaker 03: You never asked for that in the district court. [00:07:08] Speaker 05: Your Honor, no, because again, [00:07:11] Speaker 05: Mr body was was his, his burden to start was to plead an objection to the state's immunity, he pled that the objection comes down to the fact that the agents here are us citizens. [00:07:23] Speaker 05: He. [00:07:27] Speaker 05: we're operating under the complaint. [00:07:29] Speaker 05: And Mr. Board, he's never really pushed back on that, Your Honor. [00:07:32] Speaker 05: I believe there was a request for agents for 12B1 discovery, maybe in a footnote at the motion to dismiss stage. [00:07:39] Speaker 05: But going back to those quotes I read you from his own briefing, he has agreed with us that that is what he's pleading. [00:07:46] Speaker 03: And that's what- Our jurisdiction is not something that the two of you can agree on. [00:07:53] Speaker 03: Well, if there's any waiver here, the waiver is by Qatar, which I mean, why shouldn't we just hold that, you know, that the immunity emanates in one way or another from Qatar? [00:08:03] Speaker 03: It never has asserted anything in this case. [00:08:06] Speaker 05: Well, this is something I would need to get to. [00:08:08] Speaker 05: We've gotten sidetracked a little bit, but what the Supreme Court said in Samantar is that in the absence of a statement of immunity, like the case here, [00:08:18] Speaker 05: It's not that the inquiry ends there. [00:08:20] Speaker 05: It's on the court to look to the established principles of the State Department and the common law to understand the agent's immunity. [00:08:28] Speaker 05: And that's what we're asking the court to do here. [00:08:30] Speaker 05: I mean, keep in mind when the case was initially decided in California a couple of years ago, the court found right away that Cutter was immune. [00:08:38] Speaker 05: You have the allegations in his own complaint that we're the agents of Cutter. [00:08:43] Speaker 05: So at that point, [00:08:44] Speaker 05: from a 12B1 perspective, there's no more to do. [00:08:47] Speaker 05: I mean, the pleading standard for him at that point is similar to a 12B6 standard. [00:08:53] Speaker 05: There's been no request for discovery, no further factual development, and that's the record. [00:08:58] Speaker 05: That's why your jurisdiction, I don't think, is affected by the fact that we're on the complaint. [00:09:03] Speaker 01: But Cutter never communicated with the State Department to request a finding of immunity for these defendants, correct? [00:09:14] Speaker 05: That's correct, your honor. [00:09:15] Speaker 05: But my response to that would be they had the rolling right away that they were immune. [00:09:22] Speaker 05: They had the allegations that we're acting at their direction. [00:09:27] Speaker 05: And if you look at the Heaney case from the Second Circuit, from Judge Friendly, he says, in the absence of a statement of immunity, when you're talking about the heart of political acts, diplomatic acts like you have here, [00:09:40] Speaker 05: The court doesn't need a statement of immunity to find jurisdiction. [00:09:47] Speaker 05: What diplomatic acts are you talking about? [00:09:53] Speaker 05: The ones that the Ninth Circuit said here, that the hacking and distribution of hacked materials, the Ninth Circuit said are diplomatic activities of a sovereign, that the use of irregular operatives to hack an enemy and distribute those materials are, quote, uniquely sovereign. [00:10:09] Speaker 03: to the extent they're engaged in by Qatar, but these laws, these statutes and the California law that was alleged are, they all apply also to private individuals who want to go in and hack. [00:10:25] Speaker 03: And for example, if your clients had done what they did and then turned around and offered their wares to Qatar, there would be no claim of immunity. [00:10:37] Speaker 05: I think that's right, Your Honor, but that's not what happened here. [00:10:40] Speaker 05: I mean, there's no daylight between what Cutter is immune has been the Ninth Circuit held Cutter is immune from doing and what Mr. Broidy alleges we did. [00:10:49] Speaker 05: The state can only act through its agents. [00:10:51] Speaker 05: I mean, that's a sort of a fundamental proposition of foreign sovereign immunity that goes back 200 years. [00:10:59] Speaker 05: State can only act through its agents. [00:11:00] Speaker 05: The agents here as alleged by Mr. Broidy, [00:11:03] Speaker 05: our appellants. [00:11:04] Speaker 05: And so what he's challenging, what a litigation of this case would be, would be a judgment on how Qatar, A, decided to implement its diplomatic acts, as the Ninth Circuit said. [00:11:18] Speaker 05: And also, it would be an adjudication of Qatar's decision to use US agents to do that. [00:11:24] Speaker 03: How would exercising jurisdiction here, how does the district court's order that it wants to exercise jurisdiction here have the effect of enforcing a rule of law against the state of Qatar? [00:11:35] Speaker 03: I don't see that. [00:11:37] Speaker 03: If the district court is careful about discovery and respecting Qatar's immunity, it can apply the domestic law to these individuals without any attention to the role of the state. [00:11:50] Speaker 05: Well, two things your honor respectfully that that that standard is from the restatement 66 which you know we contend is not the scope of conduct based immunity in the common law. [00:12:02] Speaker 05: So when Lewis is talking about that, for instance, that's under the assumption that section 66 is the scope of conduct based immune common law. [00:12:10] Speaker 05: So that's not what we're saying. [00:12:10] Speaker 05: So I want to be clear about that. [00:12:12] Speaker 05: But in this case is still even different than Lewis if you apply that, because in this case, the agents are doing what CUTR has been held to be immune to do. [00:12:22] Speaker 05: I said that correctly. [00:12:25] Speaker 05: But the actions that the agents are taking, they are the state when they're doing them, when they're directed by the state. [00:12:31] Speaker 05: And so this is where you sort of, it's not about the individuals. [00:12:34] Speaker 05: That's what conduct-based community is about, the immunity of the state. [00:12:38] Speaker 05: And again, that's my mental premise. [00:12:42] Speaker 01: If you take the allegations as true of the complaint, would you agree with me they make out a criminal offense under federal law? [00:12:53] Speaker 05: Honestly, I'm not a criminal lawyer, but it sounds criminal to me. [00:12:57] Speaker 01: Yeah. [00:12:57] Speaker 01: And isn't it also true that an individual committing criminal offenses is not entitled to immunity? [00:13:10] Speaker 05: Well, that's true, Your Honor. [00:13:11] Speaker 01: And in fact, and then and then doesn't it follow then that if we accept the allegations in the complaint, [00:13:19] Speaker 01: as you have just agreed, making out criminal offenses, there's no way that these individuals are entitled to immunity. [00:13:29] Speaker 01: Because if they were, then I think there's some indictments that have to be dismissed of some Russian hackers that occurred during the previous election, not this one. [00:13:40] Speaker 05: Well, I think it's to say I'm not sure I'm trying to find your honor but I think it's two separate things I mean what we're saying here is that they are immune for the civil claims in this case and you know what's left our misappropriation of trade secrets seat of stolen property and conspiracy for basically hacking. [00:13:56] Speaker 05: We're not saying there's a meeting from criminal and in fact as we said in our briefs I mean you know the executive. [00:14:02] Speaker 05: retains the authority in these cases to basically decide they're not going to recognize immunity here and pursue them criminally. [00:14:09] Speaker 01: Why does it make sense if the same action would make out a criminal offense? [00:14:17] Speaker 01: If they were indicted first and convicted, and then a civil case was brought, there's no possible way they could have immunity. [00:14:27] Speaker 05: Well, I'm not sure why it makes sense, though, because this is, you know, you're in the province of the executive here, at least in terms of understanding foreign sovereign immunity and so when the when the executive decides we're going to prosecute this case they're making a judgment on foreign sovereign immunity, what you have here is you have another US citizen. [00:14:46] Speaker 05: you know, arguably with an agenda of his own, bringing a civil claim against other US citizens, and that civil liability where the foreign sovereign is at the mercy of an individual bringing a case at the mercy of the courts, that's what is sort of at the heart of foreign sovereign immunity. [00:15:07] Speaker 01: Put aside, I'm not asking you now, I have one more question at least. [00:15:12] Speaker 01: put aside the jurisdictional question, the appellate jurisdiction. [00:15:17] Speaker 01: Is it your position that every individual or company, I guess, for that matter, that is registered under the Foreign Agents Registration Act has immunity for anything that it does in compliance with the wishes of the particular government that they're representing? [00:15:35] Speaker 05: No, absolutely not, your honor. [00:15:36] Speaker 05: I mean, what I'm saying is something narrow. [00:15:39] Speaker 01: What I'm saying is that- But you said that because two of your clients at least registered under FARA, that that shows that they're agents of Qatar. [00:15:51] Speaker 01: And anything they do that Qatar asks them to do comes within the sphere of immunity. [00:15:59] Speaker 05: But let me be clear, your honor. [00:16:00] Speaker 05: So I was asked a question by Judge Walker about outside of the complaint, are they agents? [00:16:05] Speaker 05: Having registered under FARA, they are agents of the foreign sovereign. [00:16:09] Speaker 05: Their FARA registration is not what we're saying is the scope of the agency for what happened in this case. [00:16:16] Speaker 05: What we're saying is the narrow point that because they were pled to have done what Qatar directed them. [00:16:23] Speaker 05: So it's not an issue of discretion. [00:16:25] Speaker 05: It's what they were directed to do. [00:16:26] Speaker 05: Those are the same acts that Qatar has been held to be immune, for which Qatar is held to be immune. [00:16:33] Speaker 05: it has to be that the people, because the foreign sovereign acts through individuals, it has to be that they are immune too. [00:16:40] Speaker 05: There's no daylight between them and the individuals. [00:16:42] Speaker 05: And that's not a problem. [00:16:43] Speaker 03: I don't follow that. [00:16:44] Speaker 03: So imagine you have, I mean, I understand the core cases, all the cases with, you can point out the exceptions to me, but most of these cases involve employees or officials of the state. [00:16:58] Speaker 03: And when we talk about, [00:17:00] Speaker 03: foreign official sovereignty. [00:17:02] Speaker 03: We're talking about people who have a relationship as the arm of the government that's immune. [00:17:10] Speaker 03: It's a very different situation where you have somebody that's hired to sketch out a plan and maybe take action and where, as appears, there's a disclaimer of an agency relationship. [00:17:24] Speaker 03: in the contract and to say that Hutter would be immune to the extent, assuming for purposes of the jurisdictional question that Hutter would be immune for its action if it did this, it's very different to say that individuals whose relationship to Hutter has only been pleaded and not established are entitled based on that pleading to immunity. [00:17:54] Speaker 03: I don't know of any case that goes nearly that far. [00:17:58] Speaker 03: Nearly that far. [00:18:00] Speaker 05: Well, Your Honor, I think you've got five cases where, and it starts with butters and I can go through them all right, where the fact that they're contractors, what was key was that they were directed to do what they did, not their status. [00:18:14] Speaker 05: And I think the issue is that this is not status-based immunity. [00:18:19] Speaker 05: This is conduct-based immunity. [00:18:21] Speaker 05: And if you look at the common law, if you look at what the State Department has said, if you look at the foreign sources that the State Department incorporates, it's clear that the fact that you're not an official in the sense that you're working under some sort of a status with a foreign government is not where you draw the line here. [00:18:42] Speaker 05: Agents of the foreign sovereign, those working at their direction, [00:18:45] Speaker 05: are entitled to that derivative of immunity. [00:18:48] Speaker 05: It's conduct-based immunity as opposed to status. [00:18:50] Speaker 05: That's why I think thinking about them in terms of, well, those cases involve officials, that's not conduct-based immunity. [00:18:59] Speaker 03: Your best case is Butters? [00:19:02] Speaker 05: I think Butters is our best case, yeah, and Moriah, and also Ivy, Rishikoff, Alacog, but fundamentally it's Butters. [00:19:13] Speaker 05: And I think Mariah is very helpful, too. [00:19:15] Speaker 05: And to be clear about Mariah, I mean, the individual in that case, he was a former Israeli minister or something of some sort, official of some sort. [00:19:24] Speaker 05: But in that case, he was acting at the point when he was a US resident barred in New York, I think ahead of a New York hedge fund. [00:19:33] Speaker 05: And there was being in that case, well, and Mariah cited Butters favorably. [00:19:38] Speaker 05: And then in the Ben Haim statement of interest, [00:19:40] Speaker 05: Department of Justice cited Mariah favorably. [00:19:43] Speaker 05: So I think the principles and butters are clear going back to case of Sinclair up through recently Muton in the Justice Department cited the case of Sinclair and Muton just a few months ago. [00:19:59] Speaker 03: And would you welcome an opportunity to establish as a factual matter and an evidentiary hearing on remand? [00:20:05] Speaker 05: your client's role as agent as in in regard to the conduct alleged here acting as agents of cutter well i'm not sure i mean my concern is this case has been this is i think the sixth complaint filed by mr broidy i mean this is this is what he's pleading he these are these arguments were raised in california he hasn't at any point said that we went rogue [00:20:27] Speaker 05: that we were doing something outside of Cutter's direction. [00:20:30] Speaker 05: What he says is we acted at Cutter's direction and I think it goes to his whole theory doesn't make any sense if we're not acting at Cutter's direction. [00:20:37] Speaker 05: So I don't know what discovery would do at this point. [00:20:42] Speaker 05: I mean, I think this record is enough for your jurisdiction. [00:20:47] Speaker 03: But Cutter's involvement is not, I mean, he's not gonna in the end have to prove Cutter's involvement. [00:20:52] Speaker 03: Right. [00:20:52] Speaker 03: I mean, there are violations here that have to do with hacking, getting into accounts that you're not supposed to have access to, doing so repeatedly. [00:21:01] Speaker 03: I mean, none of the law that supports the causes of action in this case require any involvement of any foreign government, right. [00:21:12] Speaker 05: But his theory, Your Honor. [00:21:14] Speaker 03: I understand his theory. [00:21:16] Speaker 03: He may not get to do the discovery that he hopes to get about Hutter. [00:21:21] Speaker 03: I mean, people's motivation for suing is separate from what the law requires and what the claim rests on. [00:21:29] Speaker 03: I mean, you don't have any question that this case could proceed if Hutter tomorrow turned out to have been a fiction and never existed, could it? [00:21:37] Speaker 03: I mean, maybe Mr. Verdi wouldn't want to bring the case, but you could litigate this entire case [00:21:42] Speaker 03: if there's no such thing as clever in the world, right? [00:21:47] Speaker 05: Only if everything about the cases it's been pled six times up until now is totally different. [00:21:53] Speaker 03: Well, no, no, I'm talking about the factual elements that are alleged supporting the claims of violation of the law. [00:22:03] Speaker 05: I suppose, Your Honor, as a discrete point, but then the whole thing becomes different. [00:22:07] Speaker 05: It becomes, you know, you have individuals who are doing something on their own to hurt Mr. Broidy and the entire context of the case, everything about this, it's an entirely different case. [00:22:19] Speaker 05: The case that you have before you, and this was Mr. Broidy's choice to plead it this way and to not ask for, you know, 12-by-1 discovery, [00:22:29] Speaker 05: is that we were acting at Cutter's direction. [00:22:31] Speaker 05: So that's the record on appeal. [00:22:32] Speaker 05: I'm not sure if that affects your jurisdiction or affects the ability to make a decision here. [00:22:36] Speaker 05: And again, it's not like this is the first time Mr. Brody has been here, meaning in court with these allegations. [00:22:41] Speaker 05: He's never, never at any point said anyone went rogue. [00:22:44] Speaker 05: In fact, you don't have to complain. [00:22:45] Speaker 05: Just one more point. [00:22:47] Speaker 05: He says after the initial hack, he went to Cutter and said to Cutter, and I could have to get the quote here for you, but can you direct defendants to stop or are they rogue or are there rogue agents? [00:22:58] Speaker 05: I mean, again, fundamentally what this is about is that appellants were acting at Qatar's direction. [00:23:11] Speaker 03: And I assume on, if this is remanded to the district court, that you will be objecting to any and all discovery into the involvement of Qatar. [00:23:21] Speaker 05: Well, we didn't really talk about discovery yet, Your Honor. [00:23:24] Speaker 05: But I mean, I know what's happened so far and what's going to happen in the district court, which is Mr. Brody will seek invasive discovery about what happened. [00:23:33] Speaker 05: In California, the way that manifested itself was that there was sort of an agreement to stay away from the parties. [00:23:39] Speaker 05: But at the time, for instance, Mr. Allaham was not a party. [00:23:43] Speaker 05: Discovery was taken. [00:23:45] Speaker 05: Cotter was in that case, of course, but they stepped in to protect under a protective or as highly confidential what the California court later referred to as the diplomatic communications of Cotter. [00:23:56] Speaker 05: And this was just, you know, one sort of discreet thing. [00:23:58] Speaker 05: They stepped in to claim immunity or not immunity, I'm sorry, sort of diplomatic privilege. [00:24:05] Speaker 05: over phone records, over other things as well. [00:24:09] Speaker 05: What's going to happen here is if the case goes forward, Your Honor, I think we said this, it's going to be a document by document, witness by witness, scorched earth, you know, sort of battle over what's Cutter's, what can it protect? [00:24:22] Speaker 05: And the reason that is, I think, I sort of fundamentally goes back to what I've been saying the whole time is because the case is about Cutter. [00:24:31] Speaker 03: You never sought to have the case dismissed for failure to join an indispensable party that could not be joined under rule 19 with you. [00:24:39] Speaker 05: We didn't in this case, Your Honor. [00:24:41] Speaker 05: It was requested in California, and it was denied. [00:24:47] Speaker 05: And we were relying on the immunity decision here, Your Honor. [00:24:51] Speaker 05: And if you look at all these cases, I don't see many rule 19 arguments [00:24:57] Speaker 05: I mean, you know, rule 19 obviously brings in a few other factors, but, you know, fundamentally, you know, also the California court had ruled against that. [00:25:06] Speaker 03: Because Carter was in the, was in the California case. [00:25:08] Speaker 03: So they didn't need to dismiss. [00:25:10] Speaker 05: No, no, it was, it was because even if they were immune, they may be necessary, but they weren't indispensable. [00:25:19] Speaker 02: Can I ask a question about a family made the district court that I think [00:25:24] Speaker 02: does not mean that you've waived the argument you're making, but I want to get some clarification on it. [00:25:30] Speaker 02: You said, and this is at docket entry 41, page 12, defendants here assert derivative sovereign immunity, not foreign official immunity. [00:25:43] Speaker 02: And one way to read that is that you're out of derivative, the butters talk about [00:25:51] Speaker 02: but you're not a certain conduct based foreign official immunity, like the kind that was an issue in Lewis. [00:26:00] Speaker 02: Is that what you were saying then? [00:26:02] Speaker 05: I think that was in a footnote, right, your honor? [00:26:04] Speaker 05: I don't have it in front of me. [00:26:05] Speaker 05: And, and, you know, I can't remember precisely what we were getting at then, other than Lewis had come out kind of in the middle of things and sort of shaken things up and we were sort of figuring out where we were. [00:26:17] Speaker 05: Um, but, but, you know, I would say we have not waived it. [00:26:21] Speaker 05: The point was merely, we were trying to say, you know, we were, we were bringing a derivative sovereign immunity case at that point. [00:26:27] Speaker 05: Um, you know, and then we've, we've since reacted to Lewis, but I, I, I, we have not waived it. [00:26:32] Speaker 02: Can you just kind of give me a reason why, uh, a statement defendants here are not asserting foreign official immunity is not a waiver. [00:26:47] Speaker 02: of your argument that you are now asserting foreign official immunity? [00:26:50] Speaker 05: Two things, your honor. [00:26:51] Speaker 05: It was in a footnote as opposed to the text and also in the reply, we were very clear that we were doing under, we were asserting under both. [00:27:03] Speaker 01: Okay. [00:27:03] Speaker 01: Is that because footnotes don't count? [00:27:07] Speaker 05: Well, I guess it depends on the footnote, your honor, but. [00:27:11] Speaker 01: Justice Douglas in the dissent said that. [00:27:15] Speaker 01: He said footnotes don't count complaining about the majority opinion. [00:27:19] Speaker 01: But he said it in a footnote. [00:27:24] Speaker 05: The reason I'm hesitant is because I tend to use them as well. [00:27:26] Speaker 05: So I don't want to, you know, be a waiver about that down the road either. [00:27:29] Speaker 03: But isn't it also an issue for in terms of waiver that the district court did go ahead and address for an official immunity as well as derivative immunity. [00:27:38] Speaker 03: So in some sense, those issues are both [00:27:41] Speaker 05: Thank you, Your Honor. [00:27:42] Speaker 05: That's also a very good point. [00:27:43] Speaker 05: And it was before us all. [00:27:44] Speaker 05: It was before you on it, for that reason as well. [00:27:50] Speaker 03: All right. [00:27:50] Speaker 02: No further questions. [00:27:51] Speaker 03: Any further questions? [00:27:54] Speaker 02: Not for me. [00:27:55] Speaker 03: All right. [00:27:55] Speaker 03: Thank you, Mr. Omer. [00:27:56] Speaker 03: We'll give you a couple of minutes on rebuttal, even though we've exceeded the time. [00:28:02] Speaker 06: Thank you. [00:28:02] Speaker 03: We'll hear now from Mr. Coffin. [00:28:05] Speaker 06: Thank you, Your Honor. [00:28:06] Speaker 06: May it please record. [00:28:08] Speaker 06: You can hear me OK? [00:28:09] Speaker 03: A little muffled, but yes, we can. [00:28:11] Speaker 06: See if I can stand closer to this, okay. [00:28:16] Speaker 06: Defendants are U.S. [00:28:17] Speaker 06: citizens and residents who claim two different forms of what they call foreign sovereign immunity from their involvement in this hack and smear scheme against another American on U.S. [00:28:29] Speaker 06: soil. [00:28:30] Speaker 06: Now, Judge Pillard, I want to just briefly on jurisdiction. [00:28:36] Speaker 06: Our argument on jurisdiction is that there is not a substantial public interest in these defendants being heard in this court at this point. [00:28:47] Speaker 06: And the reason is their entire argument is that there is a substantial interest in protecting Cutter. [00:28:55] Speaker 06: Cutter is not here. [00:28:56] Speaker 06: Cutter has not sought relief from the United States. [00:29:01] Speaker 06: And Qatar has done everything they can to disclaim association with the facts of this case. [00:29:09] Speaker 06: So it's very hard for me to see how there is a substantial public interest in protecting Qatar in this case, when Qatar has done nothing to protect itself. [00:29:22] Speaker 06: On the merits. [00:29:24] Speaker 03: I mean, the collateral order doctrine doesn't, [00:29:32] Speaker 03: look at substantial public interest. [00:29:34] Speaker 03: It just looks at whether there's an issue that's conclusively determined by the district court that is completely separate from the merits and would be effectively unreviewable on appeal. [00:29:45] Speaker 03: And yes, it has to be an important issue completely separate from the merits. [00:29:47] Speaker 03: But typically when we're looking at jurisdiction, we assume the [00:29:56] Speaker 03: party could prevail on its position and determine in that posture. [00:30:01] Speaker 03: And so if we assume that Mr. Obermeyer prevails on the, why doesn't that just resolve the jurisdictional question? [00:30:11] Speaker 06: Well, first, substantial public interest is, with all respect, [00:30:16] Speaker 06: part of the analysis under Will V. Haddock. [00:30:18] Speaker 06: What they're saying is they want the right to avoid a trial, but it's a right to avoid a trial that would imperil a substantial public interest. [00:30:27] Speaker 06: And the reason is that these defendants, these alleged agents of Qatar, private agents of Qatar, there's no substantial public interest in [00:30:42] Speaker 06: the timing of this appeal. [00:30:44] Speaker 06: They can bring that issue at the end of the case and they can be protected, if they are correct, they could be protected from liability at that point. [00:30:57] Speaker 06: But the right to avoid a trial as opposed to the right to avoid a trial doesn't imperil a substantial public interest as to these defendants, unlike the state itself where there may be. [00:31:09] Speaker 03: I'm still having trouble following how you're using that. [00:31:11] Speaker 03: I mean, as I understand it, the explanation about imperiling a substantial public interest is a very, it's a big basket describing why we have interlocking for appeals in cases involving, let's say, immunities. [00:31:27] Speaker 03: And the protection of immunity at a very general level, that is the substantial public interest. [00:31:32] Speaker 03: We don't look and say, well, what about this case or this case? [00:31:35] Speaker 03: Is there a substantial public interest? [00:31:39] Speaker 06: It's the kind of immunity, Your Honor. [00:31:42] Speaker 06: And yeah, there's a bit of a merits here, but the immunity as to non-public agents of a foreign sovereign. [00:31:52] Speaker 06: I mean, part of this is simply these guys just don't merit immunity and it bleeds into the merits in some regard. [00:32:01] Speaker 06: And of course we filed a motion to dismiss the appeal to try to avoid the time of the appeal. [00:32:07] Speaker 06: So in some sense, [00:32:09] Speaker 06: We are here on the merits and I'm happy to talk about the merits. [00:32:14] Speaker 06: I don't want to get [00:32:14] Speaker 06: to drag down in jurisdiction, because I think the merits are incredibly strong for our side. [00:32:20] Speaker 06: And I'd like to move to them. [00:32:23] Speaker 06: But I hope I got my position. [00:32:26] Speaker 03: I mean, that makes more sense to me. [00:32:28] Speaker 03: There is always some sort of merits consideration. [00:32:31] Speaker 03: If somebody, if I'm sued by my neighbor because my tree is overshadowing hers, I can't just say, well, like, Italy made me do it, and now I'm doing my appeal. [00:32:41] Speaker 03: So you're always looking at some level at the type of merits claim. [00:32:47] Speaker 03: And to me, that makes more sense than looking more specifically at public interest with respect to the facts of this. [00:32:56] Speaker 03: Yeah, that's helpful. [00:32:59] Speaker 06: So look, on the merits, Your Honor, and I think the parties agree [00:33:06] Speaker 06: that Samantar and Hoffman and even going back to schooner exchange, the inquiry on the merits is this two-step analysis that Samantar discusses. [00:33:21] Speaker 06: On step one, whether Qatar, the foreign state, has asked for immunity, they have not. [00:33:30] Speaker 06: Nor have they, as Mr. Obermeyer said, nor have they gone to the State Department in any way [00:33:35] Speaker 06: to seek the United States intervention here. [00:33:39] Speaker 06: As a matter of fact, Judge Pillard, in the Ninth Circuit or in the Central District of California, Cutter actually opposed going to the State Department. [00:33:48] Speaker 06: They said, this is a judicial issue and you don't have to go to the State Department. [00:33:54] Speaker 06: Early on, we had said, let's ask. [00:33:57] Speaker 06: And both defendants said, no, you don't have to ask and you can dismiss that case on other grounds. [00:34:05] Speaker 06: But, so that, the lack of Qatari involvement in this case does frame this case. [00:34:17] Speaker 03: Well, Mr. Coffin, I mean, it would be helpful to have you address directly the core of Mr. Obermeyer's contention, which is this is at 12b1. [00:34:27] Speaker 03: It's a motion to dismiss. [00:34:28] Speaker 03: It's based on the complaint, the allegations of the complaint again and again. [00:34:32] Speaker 03: Talk about the defendants acting at the behest of Qatar. [00:34:36] Speaker 03: Why don't we take that, take your word for it on this point in terms of analyzing the immunity? [00:34:45] Speaker 06: The State Department doesn't take just the allegations of the complaint. [00:34:50] Speaker 06: And this court has never just looked at the allegations of the complaint. [00:34:54] Speaker 06: But that said, I want to talk about the allegations of the complaint a little bit. [00:34:58] Speaker 03: Tell me what your best authorities are when you say the State Department and this court don't just look at the allegations of the complaint. [00:35:04] Speaker 06: Well, so this court in, I'm going to quote Judge Sentel, which is my favorite thing to do being a former Judge Sentel clerk. [00:35:12] Speaker 06: Bell House versus Yellen. [00:35:14] Speaker 06: Bell House involved allegations of some official act. [00:35:17] Speaker 06: This was under the FSIA. [00:35:19] Speaker 06: And Judge Sentel said, we still want to look at [00:35:23] Speaker 06: the facts. [00:35:25] Speaker 06: We have an obligation to satisfy ourselves with the facts. [00:35:29] Speaker 06: And so they looked at the question of official action in that case, not withstanding the allegations of the complaint. [00:35:37] Speaker 06: And the state has said, look, even when the foreign sovereign tells us something is in unofficial capacity, we're still going to satisfy ourselves of that. [00:35:48] Speaker 06: And they've said that, Judge, I mean, there are a number of briefs where [00:35:52] Speaker 06: that we filed, we have a supplemental addendum in this case. [00:35:56] Speaker 04: Yes. [00:35:57] Speaker 06: That has multiple sections. [00:35:58] Speaker 06: We thought that would be helpful to you here, given that they're not always easy to find. [00:36:02] Speaker 06: And in those, in that addendum, I mean, state repeatedly says it's our determination, you know, with the input of the foreign state that matters. [00:36:15] Speaker 06: As to the allegations of the complaint, we certainly say they are the agents of the foreign sovereign. [00:36:21] Speaker 06: because they're registered under FARA. [00:36:24] Speaker 06: The question is, did this occur in any official capacity? [00:36:28] Speaker 06: And I want to back up for a minute, Judge, before I get into that factual question, because agent, the question of, is there an established policy of the United States recognizing immunity under the circumstances here, step two of the Samantar analysis, there is not a single authority [00:36:52] Speaker 06: that deals with a pure contracting agent. [00:36:57] Speaker 06: The best case for Mr. Obermeyer is Henry Sinclair, the 1797 Attorney General opinion, but that's under a commission. [00:37:08] Speaker 06: That is a commissioned privateer under a formal commission recognized under international law to give the protection of the state to the commissioned [00:37:21] Speaker 06: ship and captain who can't be arrested for piracy and the like under international law. [00:37:28] Speaker 06: When there is no authority for pure contracting agents, the entire body and the scarce body of law that deals with official immunity is just what you said, Judge Pillard, officials. [00:37:47] Speaker 06: The vast majority of these cases involve someone who has an employment relationship and even an appointed or an elected relationship with the state. [00:37:57] Speaker 06: That is usually high-ranking officials, sometimes just employees, but within the formal structure of the government. [00:38:05] Speaker 03: So much, Mr. Coffin, I'm sorry to interrupt, but so much is done by governments around the world through contracting that used to be done by employees. [00:38:17] Speaker 03: I guess my precise question is, we don't have a State Department statement of interest here. [00:38:22] Speaker 03: We don't have Qatar coming in and asking for a position. [00:38:26] Speaker 03: But if we were to say, I mean, is the best way to resolve this case to rely on the burden, there hasn't been a showing that there's an established State Department position. [00:38:39] Speaker 03: But if the State Department wanted to develop one, nothing that we say would foreclose that. [00:38:44] Speaker 06: That's right. [00:38:45] Speaker 06: That's right. [00:38:46] Speaker 06: On the agency point. [00:38:48] Speaker 06: Right. [00:38:49] Speaker 06: Right. [00:38:50] Speaker 06: I think it would it would be an irrigation of judicial power with all due respect to my friends on the bench to to try to fill a gap here. [00:39:02] Speaker 06: The common law. [00:39:05] Speaker 06: So my favorite quote in all of this case, Judge Randolph, you're not going to be surprised. [00:39:10] Speaker 06: is your statement in your separate opinion in Lewis, where you say it may be that there is and never has been a common law of foreign official immunity. [00:39:21] Speaker 06: I think that's right here in two respects. [00:39:25] Speaker 06: First, the respect that you said, which is there's just not that much law. [00:39:32] Speaker 06: There's just not enough of a body of law for us to look at and decide [00:39:38] Speaker 06: what the standards are. [00:39:40] Speaker 06: But second, and this is really critical, there is no common law in the classic sense of common law, judge-made, gap-filling. [00:39:52] Speaker 06: What the entire focus of this inquiry is, is what would states say? [00:39:57] Speaker 06: What is the State Department's, what is the position of the United States? [00:40:02] Speaker 06: And Hoffman, going back to 1949, Hoffman says, [00:40:07] Speaker 06: Courts shouldn't be making it up one way or the other. [00:40:10] Speaker 06: It's just as bad for a court to try to fill a gap where state wouldn't provide immunity as to do the opposite. [00:40:18] Speaker 03: And so- So when you refer to common law, you mean state department common law. [00:40:23] Speaker 06: That's what common law is in this limited context. [00:40:27] Speaker 06: The substantive law that Hoffman says applies here is what would state do. [00:40:34] Speaker 06: Right? [00:40:35] Speaker 06: And what you're looking for is an established policy. [00:40:39] Speaker 06: Now, as to agency, there simply aren't established policies that extend immunity to contracting agents. [00:40:51] Speaker 06: And what I would say is, if you look, go back to Underhill, the Second Circuit's opinion that led to the act of state doctrine in the late 1800s, what that court talked about was, [00:41:04] Speaker 06: immunity for the official representatives of the state. [00:41:08] Speaker 06: What other courts have talked about are acknowledged and embraced agents, are the authorized and ratified acts of those agents. [00:41:18] Speaker 06: Going back as far as the first statement by the executive branch, the Attorney General's 1794 opinion in suits against foreigners, [00:41:29] Speaker 06: which is at one op Attorney General 45. [00:41:32] Speaker 06: This is the Guadalupe Governor case. [00:41:37] Speaker 06: If the seizure of a vessel by the governor in that case is admitted by the foreign state to be an official act, well then immunity might apply. [00:41:46] Speaker 06: What we're talking about in all of these cases to the extent agency matters is about agents. [00:41:53] Speaker 06: That is the foreign state says, [00:41:57] Speaker 06: These are our actions, which is exactly what happened in the Southern District of New York case, the Moriah case. [00:42:05] Speaker 06: Israel came in and said, this guy who was our former official is still kind of acting, doing black ops for us on the side. [00:42:14] Speaker 06: They put in an affidavit to that effect. [00:42:17] Speaker 06: These are avowed agents. [00:42:19] Speaker 06: That's point one. [00:42:21] Speaker 06: I don't have to win on that point to win this case though. [00:42:25] Speaker 06: Because even if you assume agency, what the United States said in Youssef is that residency, it matters. [00:42:39] Speaker 06: That is, even if you assume a foreign official who was acting within the scope in their official capacity, [00:42:50] Speaker 06: because a foreign official in Yousef v. Samantar had moved to the United States and was resident in the United States at the time of the suit, the United States said a major principle in not extending immunity to that foreign official is that they are a resident of the United States. [00:43:11] Speaker 03: And that's kind of essentially reciprocity. [00:43:14] Speaker 03: They're subject to our law. [00:43:15] Speaker 03: They benefit from our law. [00:43:17] Speaker 06: It's a principle of US sovereignty. [00:43:20] Speaker 06: Right? [00:43:21] Speaker 06: That's what the United States said is we recognize as an international law principle in Youssef that immunity of the official exists for the benefit of the state. [00:43:37] Speaker 06: We recognize that. [00:43:39] Speaker 06: Nonetheless, and that's the key word in the Youssef statement of Amicus, nonetheless, where there is a binding tie to the United States [00:43:50] Speaker 06: for the particular defendant, that is, where they're a resident, that the United States says there's no immunity. [00:43:58] Speaker 06: Now, Mr. Obermeyer says, yeah, but there was no established government there. [00:44:03] Speaker 06: And that was the other principle on which the nonimmunity determination rested in that case. [00:44:11] Speaker 06: If you look at the subsequent history of that case, as we lay out in our brief, when there was a recognized government and the United States met with that government and that government said, we're not going to assert immunity, the US said, well, residence then matters. [00:44:27] Speaker 06: We still stand by our original non-immunity determination. [00:44:33] Speaker 06: And so this case really is on all fours. [00:44:39] Speaker 06: While it's not a case of a government that doesn't exist, we have a government that's standing on the sidelines. [00:44:48] Speaker 06: Government who hasn't gone to the State Department, hasn't asked for immunity, and we have US residents who are claiming immunity on their behalf. [00:44:57] Speaker 06: That principle alone we win on. [00:45:00] Speaker 03: So Mr. Coffin, I do want your help just circling back in light of your argument to the appellate jurisdiction question. [00:45:08] Speaker 03: On the one hand, just because, or if a court's gonna find that there is no immunity, that is separate from, that doesn't defeat jurisdiction. [00:45:20] Speaker 03: I mean, we know that from Arbaugh and a whole line of- And I'll take that. [00:45:24] Speaker 06: I'll take that, Judge. [00:45:24] Speaker 03: I understand, but we're trying to get it right. [00:45:28] Speaker 03: I mean, that's our job. [00:45:32] Speaker 03: So in some sense, it seems like the first case presenting a particular kind of fact scenario, like a non-official, non-employee, non-avowed or claimed private contractor, it seems like, well, there's an immunity issue bound up in there because there's an immunity claim. [00:45:53] Speaker 03: And then it seems like after, if we were to sew a hole, then it would become clear there is no immunity there, therefore no [00:46:03] Speaker 03: leg up to the Court of Appeals for purposes of a collateral order appeal. [00:46:10] Speaker 03: But that seems like that can't be right, that the question, the first impression aspect of the question can't be the ticket to the Court of Appeals that then is used up. [00:46:25] Speaker 06: Well, I guess the question is, there's a separate question that Judge Katz has asked in the API case. [00:46:38] Speaker 06: How colorable is the claim? [00:46:40] Speaker 03: You're talking about the Nigeria case? [00:46:43] Speaker 06: Yeah, the Nigeria case. [00:46:44] Speaker 06: It's the last year's case. [00:46:46] Speaker 06: APMI, I believe. [00:46:49] Speaker 06: Attorney something process. [00:46:52] Speaker 03: Yeah, you and yes ID process and Industrial Development Corporation. [00:46:56] Speaker 06: Thank you. [00:46:57] Speaker 06: Yeah. [00:47:00] Speaker 06: He there's a separate inquiry of color ability. [00:47:03] Speaker 06: We don't we actually don't think these are colorable claims, given the lack of cutters involvement here. [00:47:09] Speaker 06: And that's that's that that that layers on top of [00:47:14] Speaker 06: the collateral order analysis, and we think we could win on that. [00:47:20] Speaker 06: But, but, you know, if you say, well, it's debatable, it's colorable. [00:47:26] Speaker 06: We, you know, we, we still think that the nature of an assertion, the nature of an assertion by a mere agent of a foreign sovereign who has no contract, no nothing but a contractual relationship with [00:47:43] Speaker 06: with the foreign country just doesn't rise to the level of a substantial public interest, which I see not your favorite argument, but that's our position. [00:47:54] Speaker 03: And again- They do have applications of direction by Qatar, but- Your Honor, let me speak to that for a second. [00:48:01] Speaker 06: What we have alleged is that, and I think we've alleged very clearly, we have alleged that Mr. Muzzin [00:48:13] Speaker 06: identified Elliott Broidy as a problem that needed to be dealt with. [00:48:17] Speaker 06: These defendants were deciding which packets of information went to which newspapers. [00:48:23] Speaker 06: That's our allegation. [00:48:26] Speaker 06: The direction, we have not alleged direction by Cutter. [00:48:32] Speaker 06: We've alleged that this stuff has been done on behalf of and in complicity with Cutter, but we've alleged that these guys have had an enormous amount of discretion into how to carry out this plan. [00:48:43] Speaker 06: You know, go after Elliott Broidy, if that's a direction, OK, maybe. [00:48:47] Speaker 06: But even there, it was Mr. Muzzin that said, we have to go after Elliott Broidy. [00:48:53] Speaker 06: So factually speaking, I don't buy into the notion that our complaint alleged direction. [00:49:01] Speaker 06: Yes, it did allege that these guys were fairing agents and allege that they acted in complicity. [00:49:08] Speaker 01: Excuse me. [00:49:09] Speaker 01: Excuse me. [00:49:10] Speaker 01: Yeah. [00:49:11] Speaker 01: I want your comment and I'll ask Mr. Obermeyer the same question to this statement as a general rule. [00:49:20] Speaker 01: That is for non-official, non-foreign government officials claiming to be agents of the foreign government that a necessary, although not necessarily conclusive, [00:49:35] Speaker 01: requirement for any assertion of immunity is that the foreign government communicates to the State Department that it's invoking on behalf of these individuals its immunity. [00:49:48] Speaker 06: Your Honor, I mean, that's a predicate to our position. [00:49:52] Speaker 06: I mean, I think that's absolutely correct. [00:49:54] Speaker 06: Absent cutters a vowel, absent cutters ownership [00:49:59] Speaker 06: of these acts, I mean, yes, they were fair agents. [00:50:04] Speaker 01: And the reason I formulated it that way is that one of the things that we're trying to do, and this argument back and forth really reflects it, is to see what impact either giving immunity or not giving immunity would have on the foreign relations of the United States with the country at issue. [00:50:25] Speaker 01: And you really can't know that. [00:50:26] Speaker 01: I mean, we're just guessing, and we're trying to make up some rule of law that weeds out the cases that don't have an impact from the cases that do. [00:50:35] Speaker 01: But the easiest way to do that is just make it a prerequisite that the foreign government has to communicate to the State Department on behalf of the individuals. [00:50:44] Speaker 01: And if the government doesn't, they don't get immunity. [00:50:48] Speaker 06: So when, Your Honor, when there is, I agree with that. [00:50:53] Speaker 06: What state has said is when there are officials, okay, when there's someone who's the president or defense minister, state will apply a presumption that their acts are official and then they'll try to confirm it. [00:51:07] Speaker 06: But you can't do that. [00:51:09] Speaker 01: Exactly. [00:51:09] Speaker 01: That's why I framed up in terms of non-official foreign officials. [00:51:14] Speaker 01: We're talking not about officials. [00:51:15] Speaker 06: That's the same distinction between officials and agents here is you can't do that absent a vowel. [00:51:21] Speaker 06: by the foreign government. [00:51:23] Speaker 03: My only hesitation, I'd like your response to what if Mr. Obermeyer's clients had a contract that said in terms, you know, we believe that in this activity, you're acting as our agents, including for purposes of any immunity that might be claimed. [00:51:45] Speaker 03: And, you know, I mean, for example, then the government changes and then wants to disavow what the prior government did. [00:51:51] Speaker 03: would seem like there would still at least be a question whether they were entirely material with employees of a former regime that were treated presumptively as acting on the state's behalf. [00:52:07] Speaker 06: And of course, you know, this is a counterfactual hypothetical because you yourself said that the agreement said just the opposite, but you're suggesting, well, there might be some objective evidence [00:52:20] Speaker 06: outside the state. [00:52:23] Speaker 06: But I think for the reason that Judge Randolph is suggesting, you just can't know what the foreign affairs implication is when the state isn't stepping up. [00:52:37] Speaker 06: But again, under either standard, whether it's you have to go to state or you have to look for objective evidence [00:52:48] Speaker 06: outside of just the use of the word agent in a complaint, you don't get there here. [00:52:59] Speaker 06: There is no avowal. [00:53:01] Speaker 06: These are black ops, right? [00:53:04] Speaker 06: I mean, what state is gonna come into a court and say, yes, these guys were our hackers and they were doing all of this on our behalf. [00:53:12] Speaker 06: They want plausible deniability, but there's a price to that. [00:53:16] Speaker 06: And the United States judge, [00:53:18] Speaker 06: understand that. [00:53:20] Speaker 06: I mean, the one thing I put issue with the Ninth Circuit on, or one of the many things I take issue with the Ninth Circuit on, despite the fact that, you know, two of the judges were my colleagues in the Justice Department. [00:53:31] Speaker 06: But despite that, the thing that I would take issue with Judge Collins on in the Ninth Circuit is the notion that, you know, [00:53:43] Speaker 06: that there's going to be some major international implications to holding, you know, holding Qatar responsible. [00:53:53] Speaker 06: Certainly, let's put Qatar out of the picture, but as to the agents, you know, absent a vowel, there's just, the state continues to maintain plausible deniability. [00:54:05] Speaker 06: And as to these covert operations, every state, including the United States, [00:54:12] Speaker 06: understands that if their operatives are caught in a foreign state, those operatives are basically on their own. [00:54:18] Speaker 06: I mean, the CIA does what it can behind the scenes to bring them, you know, to get them back. [00:54:24] Speaker 06: But the United States operates at its own risk in covert operations overseas. [00:54:29] Speaker 06: And so the reciprocity is just not as compelling here. [00:54:34] Speaker 03: Judge Walker, do you have any other questions, Judge Randolph? [00:54:38] Speaker 02: None for me. [00:54:38] Speaker 03: All right. [00:54:40] Speaker 03: Thank you, Mr. Coffin. [00:54:42] Speaker 03: We've done way over time, and Mr. Obermeyer will give you a couple of extra minutes. [00:54:48] Speaker 05: Thank you, Your Honor. [00:54:49] Speaker 05: I will be briefed. [00:54:50] Speaker 05: First of all, I wanted to make clear something that I said earlier with respect to agents in response to a question of Judge Walker, and it's related to something that Mr. Coffin said. [00:54:59] Speaker 05: The complaint alleges that they are fara agents, and the complaint also alleges that they had lawful contracts where they were doing lawful activities, and then it turned into something, well, whatever he says I think is more sinister or something like that. [00:55:11] Speaker 05: So I just wanna be clear, like with respect to Farah, we're talking about the conduct that was, the contract that was registered and going forward. [00:55:17] Speaker 05: So I wanna be clear about that. [00:55:19] Speaker 02: That doesn't change anything though with respect to- So let me ask about that because I thought that your answer was clear when you gave it, but then I thought you may be backed off of it a little bit later in response to some other questions. [00:55:30] Speaker 02: So maybe I can think of a more precise way to ask the question. [00:55:35] Speaker 02: With regard to the context of this case, [00:55:42] Speaker 02: Are each of the four defendants, are you representing that each of the four defendants are agents of Qatar? [00:55:53] Speaker 05: I guess the answer, you know, I don't mean to be evasive as it depends as to what I mean, with respect to what was registered under Farah and, and the lobbying work they were doing, they were agents of Qatar. [00:56:06] Speaker 05: What has been alleged is that they were also agents in a [00:56:10] Speaker 05: in a hacking conspiracy. [00:56:12] Speaker 05: And that allegation of direction, and I can talk about Mr. Coppin's direction comment, that is distinct, but it still gets you to the same place. [00:56:21] Speaker 02: I think the complaint alleges that at least some of the defendants were not registered under FARA for the entire time. [00:56:30] Speaker 02: Or do you represent that for the entire time in question, each of the defendants were agents [00:56:40] Speaker 02: of cutter? [00:56:41] Speaker 05: Your honor, I don't remember the specific timing of the fair registrations for all of appellants. [00:56:48] Speaker 05: But I agree with you. [00:56:50] Speaker 05: The complaint mentioned something about that. [00:56:51] Speaker 05: I just don't know the specific dates. [00:56:54] Speaker 02: I mean, regardless of whether anyone was registered under fair or not, maybe I'll give this one more shot. [00:57:04] Speaker 02: Do you represent that each of the defendants were [00:57:08] Speaker 02: agents of Qatar. [00:57:13] Speaker 05: For purposes of the lawful actions they took, they are alleged to have been agents of Qatar to participate in a conspiracy to hack and distribute material. [00:57:22] Speaker 02: That's going back to what's alleged in the complaint. [00:57:23] Speaker 02: With regard to the time period in question, with regard to the time period that's covered by the complaint, and without regard to whether they were registered under FARA or not, do you represent that each of the defendants [00:57:37] Speaker 02: was an agent of Qatar. [00:57:39] Speaker 05: Yes, but what I'm trying to say, Your Honor, is just that I just wanted to be clear that I'm not saying that we agree with the allegations that they were agents. [00:57:47] Speaker 05: That's all I'm trying to get at. [00:57:48] Speaker 05: I apologize for being obtuse or too talkative about it. [00:57:52] Speaker 02: I'm not asking you to admit that they did everything that's in the complaint. [00:57:56] Speaker 02: But I do think that it's hard for you to assert foreign sovereign immunity without representing it as a necessary but not sufficient [00:58:07] Speaker 02: argument that, with regard to the time period in question, each of the defendants were agents of Qatar. [00:58:16] Speaker 05: I don't disagree with you, Your Honor. [00:58:17] Speaker 05: You know, Farah sort of adds complications. [00:58:20] Speaker 05: And then I wanted to make sure, to your point, I was clear about what I was saying on behalf of my clients. [00:58:24] Speaker 05: That's all. [00:58:25] Speaker 05: But I don't disagree with what you said, Your Honor, on that point at all. [00:58:28] Speaker 02: OK. [00:58:28] Speaker 02: Thank you. [00:58:31] Speaker 03: The next thing I wanted to do, well, I think we're over time, unless one of my colleagues has a question. [00:58:37] Speaker 01: I'd just like Mr. Overmire's comment on the statement of a legal principle that I asked Mr. Coffin about. [00:58:46] Speaker 05: Well, Your Honor, I'm sure you won't be surprised that I disagree with the principle. [00:58:50] Speaker 05: And I disagree with it because, you know, what Samantar says, the Supreme Court has said that, you know, the statement of immunity is not the sine qua non of immunity, of foreign sovereign immunity. [00:59:02] Speaker 01: Well, that's under the FISA, that's true. [00:59:06] Speaker 01: And as far as federal or foreign officials, that may be true. [00:59:11] Speaker 01: But we're not talking about either one of those categories of people. [00:59:14] Speaker 01: We're talking about people who are even more remote. [00:59:17] Speaker 01: In other words, contractual agents. [00:59:21] Speaker 05: But your honor, that's where I disagree with you respectfully, because the established policy, the common law, is that it's not the status, it's not them as officials, it's that agents of the foreign sovereign are entitled for immunity for actions directed by the foreign sovereign. [00:59:36] Speaker 05: That goes back, I think Mr. Kauffman mentioned it, case of Sinclair. [00:59:40] Speaker 05: It goes back to a Twygras, a UK decision that has been cited favorably by the State Department. [00:59:48] Speaker 03: What about Mr. Coffin's point that these aren't actions directed by the sovereign, even on the allegations of the complaint alone, which says you hired these people, or Qatar hired these people, and they decided in their discretion how to carry out the general remit. [01:00:07] Speaker 03: And this precise means and the precise targeting was not the directive of Qatar. [01:00:15] Speaker 05: Two things, Your Honor. [01:00:15] Speaker 05: First of all, I already read this, but this is from page nine of their opposition interlocutory appeal where Brody says that he, quote, alleges that defendants acted at Cutter's direction, end quote, so. [01:00:26] Speaker 03: Generally. [01:00:28] Speaker 03: He doesn't deny that, generally acted at Cutter's direction. [01:00:31] Speaker 05: But what's key for derivative immunity is that what he has alleged they were directed to do is what is the basis for the alleged liability. [01:00:42] Speaker 05: He alleges that he directed them to disseminate materials. [01:00:45] Speaker 03: All right, do some great press for me. [01:00:48] Speaker 03: I hope you find dirt, you know, discredit this guy. [01:00:51] Speaker 03: See you later. [01:00:53] Speaker 03: And if I would, if I did that to, you know, my intern, I'm a newspaper editor, I do this to my intern, you know, go find some and the intern goes and commits criminal activity, surely [01:01:05] Speaker 03: I don't disagree. [01:01:06] Speaker 03: I mean that's a bad example because it's not a it's not a government or immunity example but you know chief of police says to officer you know go do X and so there's no there's no defense of following orders there. [01:01:19] Speaker 05: I don't think I disagree with anything you're saying your honor but what I'm saying here is that what's alleged to have been directed is the conduct that establishes liability. [01:01:27] Speaker 05: So in Butters the conduct was [01:01:29] Speaker 05: Don't hire the woman because she's a woman. [01:01:31] Speaker 05: The claim was Title VII. [01:01:33] Speaker 05: That's the level of specificity. [01:01:35] Speaker 05: Here, the specificity is disseminate hacked materials. [01:01:39] Speaker 05: That he decides to do it to the Wall Street Journal and not the Washington Post or whatever it is he alleges happened, that's besides the point because what forms the basis of liability is the direction to conspire to hack and disseminate. [01:01:54] Speaker 03: Other questions? [01:01:56] Speaker 03: Thank you very much, counsel, that was well and informatively argued. [01:02:01] Speaker 03: The case is submitted.