[00:00:00] Speaker 05:
Case number 22-7083, Mary OPC et al.

[00:00:05] Speaker 05:
at balance versus BNP Fatiba SH and Al-Shamal Islamic Bank.

[00:00:10] Speaker 05:
Mr. Dickens for the at balance, Mr. Bucuzzi for the at police.

[00:00:21] Speaker 06:
Good morning.

[00:00:23] Speaker 02:
Good morning.

[00:00:24] Speaker 02:
May it please the court.

[00:00:26] Speaker 02:
Republic of Sudan entered into conspiracy with the defendant BMP Parabas and the terrorist organization Al-Qaeda to engage in a conspiracy to defeat United States economic sanctions.

[00:00:38] Speaker 02:
BMP entered into that conspiracy knowing that funds cleared for that unlawful enterprise, which began in 1997, would be used to support terrorism.

[00:00:47] Speaker 02:
For its part in the conspiracy, BMP Parabas created a complex system to elicit US

[00:00:55] Speaker 02:
Elicit U. S. Dollar payments blockade.

[00:00:58] Speaker 02:
They used violence.

[00:00:59] Speaker 02:
The 1998 terrorist attacks were done in furtherance of that conspiracy.

[00:01:04] Speaker 02:
We know this not because of speculation or inference.

[00:01:07] Speaker 02:
We know this because Al Qaeda told us themselves that that was one of the stated goals was to end the U. S. Embargo in Sudan.

[00:01:17] Speaker 02:
We also know

[00:01:18] Speaker 02:
from the criminal trials of the Al-Qaeda, or the very attack that killed and injured the plaintiffs here in this case, that they used bank accounts within al-Shammah, a bank operating in Sudan, to fund that attack.

[00:01:34] Speaker 02:
Now, these allegations are more than enough to state a claim for conspiracy and aiding and abetting.

[00:01:40] Speaker 02:
If there's aiding and abetting, what?

[00:01:43] Speaker 01:
Well, if we look at it from conspiracy theory... Everything you said there had to do with defeating the embargo.

[00:01:50] Speaker 01:
Maybe they did conspire to defeat the embargo, but that doesn't create a private claim cause of action, does it?

[00:01:57] Speaker 01:
It does under a conspiracy theory in which... Conspiracy has to have a substance, a goal that is unlocked.

[00:02:07] Speaker 01:
And that's fine.

[00:02:10] Speaker 01:
even though you may have an unlawful attempt to defeat the embargo, that does not give a private claim for relief than just defeating the embargo does.

[00:02:23] Speaker 02:
Under the conspiracy as alleged in this complaint, the agreement that is the focus of the conspiracy is the agreement to defeat United States sanctions.

[00:02:35] Speaker 02:
That is the agreement entered into by the MP Peravas

[00:02:39] Speaker 01:
I'm believing everything taking your allegations is true.

[00:02:43] Speaker 01:
You still haven't gotten to a private claim for relief at this point.

[00:02:48] Speaker 01:
What is the goal of the conspiracy that was accomplished that caused damage to your client?

[00:02:55] Speaker 02:
So the goal of the conspiracy was to defeat those United States economic sanctions.

[00:02:59] Speaker 02:
The overt act that gave furtherance of that conspiracy, that gave rise to the claim, is the bombing of the United States.

[00:03:08] Speaker 02:
And it's, we know once again that that was one of the goals of Al Qaeda to defeat the United States economic sanctions, as played in the complaint.

[00:03:16] Speaker 01:
That's two different goals.

[00:03:18] Speaker 01:
Bombing an embassy and breaking sanctions is not the same thing, is it, Counsel?

[00:03:27] Speaker 02:
In a conspiracy under Halberstam.

[00:03:29] Speaker 02:
And if we look at Halberstam specifically.

[00:03:31] Speaker 02:
I've looked at Halberstam for years.

[00:03:34] Speaker 02:
I'm sure, Your Honor.

[00:03:36] Speaker 02:
What they found was that the Civil Conspirator can be liable, even if you neither planned nor knew of a particular act.

[00:03:43] Speaker 01:
But in that case... But she knew he was engaged in illegal activities, the activities that gave rise to the murder that gave rise to the claim for relief.

[00:03:53] Speaker 01:
But here... I mean, that was part of the goal of the conspiracy, was to commit the illegal acts that led to his death.

[00:04:00] Speaker 01:
But here, you're telling us about a conspiracy to defeat economic sanctions,

[00:04:06] Speaker 01:
but I'm not finding a private claim for relief in it.

[00:04:11] Speaker 02:
And from the conspiracy aspect, what gives rise to it, if there is an agreement and the agreement is here to defeat the sanctions, the injury is caused by an unlawful overt act in furtherance of that conspiracy.

[00:04:24] Speaker 02:
And that's where the bombing comes into play because al-Qaeda

[00:04:28] Speaker 02:
And once again, they told us that one of their goals in furtherance of the conspiracy was to defeat the sanctions.

[00:04:34] Speaker 02:
So they agreed and said, we're bombing the embassy because there is this United States economic embargo in Sudan.

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And once again, that's directly from the mouths of Al-Qaeda, as we're doing this because of this embargo.

[00:04:50] Speaker 02:
We're seeking to defeat the sanctions.

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And that's the same goal

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uh, that the revolt probably goes Sudan and B and P had.

[00:04:58] Speaker 02:
But it's the overt act.

[00:05:00] Speaker 02:
Linda Hamilton in Halberstam did not have the goal of the murder of Mr. Halberstam.

[00:05:08] Speaker 02:
Linda Hamilton's goal was different, and it was the overt act of the murder which gave rise to the allegation.

[00:05:16] Speaker 01:
The murder was a murder because it was a felony murder, and the felony involved was the goal of the conspiracy.

[00:05:23] Speaker 01:
Uh, that you had a very

[00:05:25] Speaker 01:
that really was a pretty direct part of the conspiracy.

[00:05:29] Speaker 01:
The conspiracy to conduct the economic transactions here does not have the kind of foreseeability that you had in Haverstam.

[00:05:42] Speaker 02:
Linda Hamilton and Mr. Welch in that case agreed to undertake the legal enterprise of acquiring stolen property.

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And now that the murder, whether it was foreseeable or not, we put that aside.

[00:05:54] Speaker 02:
As long as it was done in furtherance of the conspiracy, that's what gives rise to the cause of action.

[00:06:01] Speaker 01:
And here... How did bombing an embassy help end sanctions?

[00:06:07] Speaker 01:
How would anyone think that bombing an embassy would make the United States less likely to put sanctions?

[00:06:12] Speaker 01:
Well, the motion is misstated, Your Honor.

[00:06:14] Speaker 02:
It's not the goal to whether or not we believe Al Qaeda in their statement of this is why we did it.

[00:06:22] Speaker 01:
So then we believe all of this.

[00:06:25] Speaker 01:
How does bombing an embassy further a conspiracy?

[00:06:31] Speaker 01:
As far as we know, the conspiracy of the bank entered to defeat economic sanctions.

[00:06:37] Speaker 01:
I don't think we need to get the state of mind of Al-Qaeda on their basis, but if we do... I think you need to get somewhere that makes this bank a conspirator and a conspiracy to commit the embassy bombing in order to have a private claim for relief.

[00:06:53] Speaker 01:
And I'm exploring how you get there, and I'm not getting there.

[00:06:56] Speaker 02:
Al-Qaeda told us that here are the reasons why we're bombing the cat.

[00:07:01] Speaker 02:
And this sets the case away from the Bernhardt case, which was decided, in which the court looked at the specific reasons.

[00:07:08] Speaker 02:
In that case, a bombing of a small secret CIA camp

[00:07:14] Speaker 02:
You know, it was completely implausible that it would be based on them doing that act to defeat United States.

[00:07:22] Speaker 02:
Here, it's different.

[00:07:24] Speaker 02:
This is a widespread attack in which they focused, and we have played from 1997.

[00:07:30] Speaker 02:
Bin Laden was talking about the US embargo, about what he was going to do with respect to that, and undertook these efforts to

[00:07:41] Speaker 02:
to bomb the attack, to defeat those sanctions.

[00:07:44] Speaker 02:
Now, we don't have to say, OK, that doesn't seem right in my mind.

[00:07:48] Speaker 02:
That was what al-Qaeda specifically did, to chase Americans out, to kill them, to make them withdraw their sanctions.

[00:07:56] Speaker 06:
Mr. Dickens, how can you distinguish the facts here from Owens?

[00:08:02] Speaker 02:
And it's a good question, Judge Rao.

[00:08:05] Speaker 02:
This case is not Owens, and it's not Owens in either allegations led or the cause of action raised.

[00:08:12] Speaker 01:
And so the Owens... We know it's not Owens, but how do you get around Owens in prison?

[00:08:19] Speaker 02:
Yeah, so in looking at the allegations there, Owens didn't contain any allegations regarding al-Shamal or the use of al-Qaeda accounts in al-Shamal prior to the attacks.

[00:08:31] Speaker 02:
It contained no allegations of al-Qaeda's use and reliance on Sudanese banks prior to the 1990 embassy bombings.

[00:08:39] Speaker 02:
It contained no publicly available reports tying Sudan to al-Qaeda.

[00:08:44] Speaker 06:
And why do those things make a difference?

[00:08:46] Speaker 02:
Those things make a difference, one, because they didn't allege any secondary liability.

[00:08:53] Speaker 02:
They only did it through the ATA plan, but the court determined based on the older version that secondary liability wasn't available at that stage.

[00:09:02] Speaker 02:
And so there were no secondary liability for conspiracy and aiding and abetting.

[00:09:07] Speaker 02:
These elements that I just stated are relevant to general awareness under aiding and abetting.

[00:09:14] Speaker 02:
It's relevant to

[00:09:17] Speaker 02:
once you know the furtherance of the conspiracy.

[00:09:19] Speaker 02:
But it's also relevant to knowledge and the close proximity or the close ties between BNP al-Shamal as well as the Republic of Sudan.

[00:09:31] Speaker 02:
So al-Shamal here was not a Sudanese entity.

[00:09:35] Speaker 02:
It was a separate intermediary.

[00:09:37] Speaker 02:
And we must look at those intermediaries separately, see them running out of time.

[00:09:41] Speaker 02:
If I can save any time, I have left.

[00:09:44] Speaker 04:
Thank you.

[00:09:55] Speaker 00:
Good morning, and may it please the court, Carmine Bucuzzi from Cleary Gottlieb for the appellee, BMP Paribas.

[00:10:02] Speaker 00:
The district court was correct in dismissing the complaint.

[00:10:06] Speaker 00:
The correctness of his ruling was confirmed by this court's decision in Owens, as well as this court's decision in Bernhardt, the Second Circuit's decision in Rothstein, which Owens followed, as well as the Seventh Circuit in Kemper and many other.

[00:10:20] Speaker 00:
In this case, there is no pleading

[00:10:23] Speaker 00:
of any meeting of the minds between BMP Paribas and Al-Qaeda.

[00:10:29] Speaker 00:
There's actually nothing pled about any connection between BMP Paribas and Al-Qaeda.

[00:10:35] Speaker 00:
The complaint does not plead that BMP was banking al-Shamal.

[00:10:41] Speaker 00:
It doesn't plead that it was aware of any connection between al-Shamal and Al-Qaeda.

[00:10:45] Speaker 00:
It doesn't even plead in a non-conclusory way that BMP was aware that al-Qaeda was working with Sudan.

[00:10:53] Speaker 00:
Just as in Rothstein, there's no pleading that BMPP was a participant in any attack.

[00:10:58] Speaker 00:
There's no pleading that any money sent by BMPP to Sudan, to the extent that happened, had any connection to the attack.

[00:11:08] Speaker 00:
And there's no pleading that any money directly went to BMPP to al-Qaeda.

[00:11:15] Speaker 00:
With no well-pleaded allegations, the court was correct to dismiss the ATA claim just as an Owens for failure of proximate causation.

[00:11:23] Speaker 00:
As to conspiracy, there is no common goal.

[00:11:27] Speaker 00:
Judge Santelli, your questions are absolutely right.

[00:11:30] Speaker 00:
It's clear that the MPP, like the banks in Bernhardt and in other cases, was acting to evade sanctions for a profit motive.

[00:11:39] Speaker 00:
They say, oh, we're all agreed on defeating sanctions, but defeating sanctions is just a characterization on their part for al-Qaeda committing murder to get the United States to back off of sanctions.

[00:11:52] Speaker 00:
But that, of course, in complaint paragraph three, is exclusively said not to be the aim of BMP Paribas.

[00:11:59] Speaker 00:
It says BMPP did not share the intent of al-Qaeda to commit any murder, to harm anyone.

[00:12:06] Speaker 00:
So the conspiracy claim fails for that simple reason, as well as in Bernhardt, where the court said, where is the act in furtherance of the conspiracy?

[00:12:16] Speaker 06:
ask you about your characterization of the Jesner case, the Supreme Court's case in Jesner, you suggest that that is a bar to jurisdiction here.

[00:12:27] Speaker 06:
But as I read that case, it's really about a cause of action.

[00:12:31] Speaker 06:
And so I'm wondering why you read it as a jurisdictional bar.

[00:12:36] Speaker 00:
Is this this is the yes claim.

[00:12:38] Speaker 00:
Yes, whether the Supreme Court has often said Jesner is jurisdictional, but also you're correct about it's bringing in this cause of action for an international law to work.

[00:12:50] Speaker 00:
And so in that way, it is like a threshold.

[00:12:52] Speaker 06:
It's a threshold issue, but is it a jurisdictional one?

[00:12:55] Speaker 00:
I think it is a jurisdictional issue.

[00:12:57] Speaker 00:
But either way, it's it's an issue that came up after the decision by the district court judge, which is why we raised it on appeal as a complete part of this claim, because Shessner says you don't have a cause of action.

[00:13:11] Speaker 00:
There is no jurisdiction in U.S.

[00:13:13] Speaker 00:
courts for a claim like these claims against a foreign bank or corporation.

[00:13:19] Speaker 00:
That case was decided in the context of a foreign bank that, like the NPP, violated U.S.

[00:13:25] Speaker 00:
sanctions, but because it was not a U.S.

[00:13:27] Speaker 00:
citizen, the case was dismissed.

[00:13:29] Speaker 01:
Not a U.S.

[00:13:30] Speaker 01:
person.

[00:13:31] Speaker 01:
I'm sorry?

[00:13:31] Speaker 01:
You said a U.S.

[00:13:32] Speaker 01:
citizen.

[00:13:33] Speaker 01:
I thought it was not a U.S.

[00:13:34] Speaker 01:
person.

[00:13:34] Speaker 01:
U.S.

[00:13:34] Speaker 01:
person.

[00:13:35] Speaker 01:
Thank you, Your Honor.

[00:13:37] Speaker 00:
So the ATS claim falls as well.

[00:13:41] Speaker 00:
And then as to aiding and abetting, you don't have any of the elements that would bring about a claim under the standard of Halberstam.

[00:13:48] Speaker 00:
And we did raise that as a threshold issue, whether there's preemption issue here, given the language in Jesner, that it would be odd to create a common law cause of action in that context.

[00:14:00] Speaker 00:
And here we've got Congress all over the field of terrorist leasing, the criminal law, the attendant civil law violations.

[00:14:09] Speaker 00:
And here JASTA, which is aiding and abetting, is very clearly limited to attacks 2001 and later,

[00:14:16] Speaker 00:
and also with the FTO was the act.

[00:14:19] Speaker 06:
So let's unpack that argument a little bit.

[00:14:20] Speaker 06:
Are you arguing that the state common law claims are preempted under the reasoning of Jesner?

[00:14:28] Speaker 00:
Yes, Your Honor.

[00:14:29] Speaker 00:
Yes, Your Honor.

[00:14:30] Speaker 06:
That's not so clear in your briefing that the state, you talk about common law generally, and Jesner is about creating federal common law.

[00:14:40] Speaker 06:
But how does that relate to existing state common law claims?

[00:14:47] Speaker 06:
And whether that reasoning preempts the existing state common law?

[00:14:52] Speaker 00:
I think about it because of the role of Halberstam.

[00:14:54] Speaker 00:
The JASTA statute says you look to Halberstam as a federal common law that will be applicable under the statutory regime.

[00:15:02] Speaker 00:
It then says that if the attack occurred before 2001, it's not cognizable under JASNR.

[00:15:07] Speaker 00:
It also says you need the FTO involved.

[00:15:09] Speaker 00:
And Al Qaeda was not an FTO until after this attack several years later.

[00:15:14] Speaker 00:
And so if you look at that, it then does seem odd to say we're going to go to federal common law through a Halberstam claim and have this claim proceeding.

[00:15:23] Speaker 06:
It's not federal common law, right?

[00:15:25] Speaker 06:
The plaintiffs are bringing a state common law claim.

[00:15:28] Speaker 06:
I mean, is there a distinction?

[00:15:29] Speaker 00:
I don't think there's a distinction because you're still in the realm of common law where Congress says,

[00:15:33] Speaker 00:
really occupied the field, though I'm not arguing field preemption, we're discussing obstacle preemption.

[00:15:40] Speaker 00:
And so we think that's an important consideration given that language in Jezner and the way Congress has really very carefully calibrated these different causes of action and the concerns about international comedy and the fact that the policing of terrorism is a uniquely federal interest.

[00:16:00] Speaker 00:
And so that is why we think

[00:16:01] Speaker 00:
There is that threshold issue.

[00:16:03] Speaker 00:
Of course, this court doesn't need to reach it because the claims here fail applying the Halberstam framework.

[00:16:09] Speaker 00:
There is no, first of all, general awareness as with Linda Hamilton, the Halberstam case.

[00:16:14] Speaker 00:
There she knew that her husband was engaged in property crimes.

[00:16:19] Speaker 00:
And so knowing that and being tied together with those property crimes, she was charged with the reasonably foreseeable fact of the felony murder that occurred against Mr. Halberstam.

[00:16:30] Speaker 00:
Here, of course, there was no general awareness on the part of BNPP because there's no allegation that we were banking any terrorists and then otherwise we're just back to this indirect connection through al-Shamal or through Sudan where there's no allegation we knew that any of those entities were dealing with al-Qaeda.

[00:16:52] Speaker 00:
And there's a further layer here on the point that they haven't adequately planned that we were banking al-Shamal.

[00:16:59] Speaker 00:
They say we admitted that, and they say that in paragraph 90 of the complaint.

[00:17:06] Speaker 00:
But we didn't admit that.

[00:17:08] Speaker 00:
If you look at the statement of claims or statement of facts, there's no admission that the bank was banking al-Shamal.

[00:17:15] Speaker 00:
And even if we relied on what they say, the admission concerns the period 2002 to 2009, so four years and later after the 1998 attacks that issue in this case.

[00:17:26] Speaker 00:
So you don't satisfy the general awareness prong of Halberstam.

[00:17:30] Speaker 00:
And then go into the six factors.

[00:17:33] Speaker 00:
I think this court's decision in Bernhardt and the decision of the Second Circuit in Siegel are of course URI here.

[00:17:42] Speaker 00:
There's no allegation that we had any encouragement of these attacks in terms of whether or anything we do is a significant factor.

[00:17:50] Speaker 00:
Bernhardt and Siegel are of course URI.

[00:17:53] Speaker 00:
They are the allegations concerned billions of dollars being transferred by HSBC and the Siegel case, hundreds of millions of dollars.

[00:18:02] Speaker 00:
And the court said, but there's no link to that money to those entities and to the terrorist actors.

[00:18:07] Speaker 00:
Here, we don't even have amounts specified.

[00:18:09] Speaker 00:
We just have an allegation that there are accounts open.

[00:18:12] Speaker 00:
And it also says the allegation references accounts being open in BNPP Geneva, which is a separate sub and is not even the defendant here.

[00:18:21] Speaker 00:
So you have a fertile payer

[00:18:22] Speaker 00:
lack of any connection between anything BMPP did and anything that's alleged to have happened in these attacks.

[00:18:29] Speaker 00:
There's no presence of BMP, the third factor, whether you think of that as transactional or of course no physical presence.

[00:18:37] Speaker 00:
There's no relationship with Al-Qaeda.

[00:18:39] Speaker 00:
As we discussed, there's no knowledge of Al-Qaeda's involvement.

[00:18:42] Speaker 00:
And we're also talking about, in both Siegel and Bernhardt, we were talking about years of activity by the banks and that was insufficient duration

[00:18:51] Speaker 00:
Here, plaintiffs are talking about a window of a few months between November 1997, when they claim we started evading sanctions, and when the attack started in August 1988.

[00:19:03] Speaker 00:
There's no allegation that in that window, when the accounts were alleged to just be being opened, that there was any material transaction related in any way to Al Qaeda.

[00:19:14] Speaker 00:
So just as in Owens, which is complaint,

[00:19:17] Speaker 00:
by and large copies, uh, other than just having this characterization of the sanctions and having general references to Alshamal.

[00:19:26] Speaker 00:
This case should be dismissed or the dismissal should be affirmed.

[00:19:29] Speaker 00:
This is the dismissal.

[00:19:31] Speaker 00:
Unless you're honest, I have questions.

[00:19:35] Speaker 06:
Touch Rogers.

[00:19:37] Speaker 06:
Thank you.

[00:19:39] Speaker 04:
Thank you.

[00:19:45] Speaker 04:
Mr. Dickens will give you two minutes.

[00:19:53] Speaker 02:
My friend stated that one of the reasons you can find there's no conspiracy here is because there was no intent.

[00:20:00] Speaker 02:
But intent is not required under conspiracy.

[00:20:04] Speaker 02:
Nor is the fact that the unlawful act giving rise or the unlawful act that's agreed upon is an unlawful act that gives rise to a private cause of action.

[00:20:18] Speaker 02:
It just says it's an unlawful act which being agreed upon.

[00:20:23] Speaker 02:
Here, that unlawful act is by the defeat of the sanctions that was set forth in November, 1997.

[00:20:29] Speaker 02:
Now, this case is even worse than some of those cases my friend cites, the Bernhardt and Siegel, because here, BNP rushed to the aid of Sudan, which was an impoverished country relying on funds and US dollars for financial stability.

[00:20:48] Speaker 02:
Here, BNP came in for the sole reason to defeat the sanctions

[00:20:53] Speaker 02:
you made.

[00:20:54] Speaker 02:
We're talking of questions about you a little trouble if that's the sole reason.

[00:21:00] Speaker 01:
Beating the bank.

[00:21:02] Speaker 01:
I'm sorry.

[00:21:02] Speaker 01:
Aren't you in a little trouble if that's the sole feed sanctions?

[00:21:07] Speaker 01:
I'm still not sure how you get that to be a private cause of action.

[00:21:10] Speaker 01:
And contrary to what you seem to be saying, you have to have a private cause of action to be here.

[00:21:15] Speaker 01:
And what argument here is your honor is that

[00:21:18] Speaker 02:
the unlawful act that gives rise to the conspiracy.

[00:21:23] Speaker 02:
You know, we got to look at it in two parts.

[00:21:25] Speaker 02:
What's the unlawful act?

[00:21:26] Speaker 02:
The unlawful act here is the feuding sanctions, but that's not what gives rise to the private cause of action.

[00:21:31] Speaker 02:
It's what is done in furtherance of that conspiracy.

[00:21:34] Speaker 02:
So in Bernard

[00:21:35] Speaker 01:
And you're insisting that the embassy bombing was something they could, within the contemplation of a conspiracy to defeat the bank.

[00:21:43] Speaker 02:
And the reason, and I'll cite the court to paragraph eight of our complaint, this is a direct quote from Al Qaeda.

[00:21:52] Speaker 02:
One of the stated reasons was to cease the campaign for the annihilation and humiliation that's being waged by the United States.

[00:21:59] Speaker 02:
based on the blockades or economic sanctions.

[00:22:03] Speaker 02:
That was a stated reason.

[00:22:05] Speaker 02:
And it's not our role here to say that doesn't make sense.

[00:22:08] Speaker 02:
We must accept that as true and take those inferences in favor of plaintiff.

[00:22:12] Speaker 02:
And when we do so and have those allegations and have been shown in Bernhardt that indeed that act was in furtherance of the conspiracy, it would have met those elements.

[00:22:22] Speaker 02:
That is what was missing in Bernhardt and the other cases in which found there is no conspiracy.

[00:22:28] Speaker 02:
Here, this is a unique case.

[00:22:30] Speaker 02:
We admit to that.

[00:22:30] Speaker 02:
It's a unique case by which we have a terrorist organization telling us, we buy this.

[00:22:35] Speaker 01:
Do you in fact have a factual allegation of the meeting of the mind involving both the bank and Al-Qaeda?

[00:22:44] Speaker 02:
Well, what the case law tells us is we don't need a meeting of the minds between all of the different conspirators.

[00:22:51] Speaker 02:
All we need is a shared goal that was agreed upon generally.

[00:22:55] Speaker 02:
Al-Qaeda didn't need to know about BNP and BNP didn't need to know about

[00:23:01] Speaker 02:
With respect to, and the court asked some questions about Jezner and the ATS claims, our position is it's not as simple as saying, OK, BNP is a foreign corporation.

[00:23:14] Speaker 02:
There must be some analysis, and there must be some way to figure that out, that the Supreme Court didn't give any guidance.

[00:23:20] Speaker 02:
It didn't define what a foreign corporation is.

[00:23:23] Speaker 02:
And so we must look at how to analyze that

[00:23:28] Speaker 02:
Diversity jurisdiction is not the way.

[00:23:30] Speaker 02:
Here, the sanctions specifically define who a U.S.

[00:23:33] Speaker 02:
person is.

[00:23:34] Speaker 02:
That's what gives rise to our complaint.

[00:23:36] Speaker 02:
A U.S.

[00:23:37] Speaker 02:
person, underneath the sanctions, what's the complaint about?

[00:23:41] Speaker 01:
A U.S.

[00:23:41] Speaker 01:
person, the closest you come in the statutory language is a person in the United States.

[00:23:48] Speaker 01:
Is a corporation, which is a corporate citizen and creation of a foreign country, a person in the United States?

[00:23:57] Speaker 01:
Doesn't the Supreme Court say they're not?

[00:24:01] Speaker 02:
Well, I believe under the sanctioned remedy, and the question once again is we must look at the actual allegations of the complaint because what the court didn't say is, well, if there's a bank over there in headquarters somewhere else, they can never be a foreign corporation.

[00:24:16] Speaker 02:
First subject matter jurisdiction under the ATS.

[00:24:19] Speaker 01:
Those are words that have common meaning, a foreign corporation.

[00:24:25] Speaker 01:
Is it a foreign corporation?

[00:24:27] Speaker 01:
It's a corporation that's a foreign business, and it doesn't, you don't need a statutory definition of that.

[00:24:36] Speaker 01:
Those words are commonly used just as the United States person is commonly used and has never been applied to a foreign corporation.

[00:24:46] Speaker 02:
Well, it depends on the question of what we're looking at.

[00:24:49] Speaker 02:
For personal jurisdiction, we agree, but that's laid out in, you know, state.

[00:24:53] Speaker 01:
Yeah, but in international law,

[00:24:55] Speaker 01:
the term a United States person or a public of France person or whatever is a common usage and it is used to refer to citizens and nationals, uh, permanent residents, persons who, persons who owe an allegiance to that nation.

[00:25:11] Speaker 01:
And I don't see how you get this foreign bank to be a United States person.

[00:25:19] Speaker 02:
Well, in Jezner, obviously they were concerned with foreign policy issues.

[00:25:23] Speaker 02:
And what is that?

[00:25:24] Speaker 01:
I'm concerned with how you get this to be foreign, how you get this to be a U.S.

[00:25:30] Speaker 02:
What Jezner said is the political branches, not the judiciary, need to weigh in.

[00:25:33] Speaker 02:
Here, the political branch did weigh in.

[00:25:35] Speaker 02:
We have the executive branch stating, for purposes of violating these Sudanese sanctions, a U.S.

[00:25:41] Speaker 02:
person is defined as someone in the United States as well as foreign branches operating in the United States.

[00:25:47] Speaker 01:
So what would you get there as well as foreign branches operating in the United States?

[00:25:52] Speaker 01:
That's not in the statute, is it?

[00:25:54] Speaker 02:
It's within the executive order that gives rise to the Sudanese sanctions in November of 1997.

[00:26:00] Speaker 06:
And wasn't BNP Paribas held liable for the evasion of sanctions?

[00:26:05] Speaker 02:
They were, yes.

[00:26:06] Speaker 06:
So there was, you know, there was some governmental remedy against them.

[00:26:11] Speaker 02:
There was, but that fact as well is, you know, further support of

[00:26:17] Speaker 02:
There is not as large of a concern here for foreign policy issues when the government stepped in, held them accountable criminally, and fined them $8 billion because of that.

[00:26:27] Speaker 06:
And haven't the plaintiffs here also benefited from the settlement between the U.S.

[00:26:31] Speaker 06:
government and Sudan for these claims as well?

[00:26:35] Speaker 02:
From a separate settlement.

[00:26:36] Speaker 06:
So that was another public policy that addressed this underlying issue.

[00:26:40] Speaker 02:
That's correct.

[00:26:41] Speaker 02:
Yes.

[00:26:43] Speaker 02:
My support has any further questions.

[00:26:45] Speaker 02:
Thank you.