No. 14- - Reutersblogs.reuters.com/.../sokolowvpa-pamandamusbrief.pdf · No. 14- IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ... Sokolow v. PLO, 76 11, 12 passim

No. 14-

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

In re THE PALESTINIAN AUTHORITY AND PALESTINE LIBERATION ORGANIZATION,

Petitioners.

ON MANDAMUS FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

THE HONORABLE GEORGE B. DANIELS CASE NO. 04-cv-397

PETITION FOR A WRIT OF MANDAMUS

Laura G. Ferguson Counsel of Record

Brian A. Hill Miller & Chevalier Chartered 655 15th Street, NW, Suite 900 Washington, DC 20005 (202) 626-5800

December 3, 2014 Counsel for Petitioners

1484080.1

Case 14-4449, Document 2-1, 12/03/2014, 1385203, Page 1 of 39

Corporate Disclosure Statement

Counsel for Petitioners the Palestinian Authority and Palestine Liberation

Organization certifies that neither the Palestinian Authority nor the Palestine

Liberation Organization is a corporation and thus neither has parent companies and

no publicly held corporation owns 10% or more of either's stock.

/s/ Laura G. Ferguson Counsel of Record for Petitioners

1484080.1


TABLE OF CONTENTS

Page

Corporate Disclosure Statement

QUESTION PRESENTED 1

INTRODUCTION 1

PROCEDURAL HISTORY 3

A. The PA's and PLO's Motion to Dismiss 3

B. The PA's and PLO's Motion for Reconsideration 5

C. The PA's and PLO's Motion for Summary Judgment 7

ARGUMENT 9

I. THE RIGHT OF THE PA AND THE PLO TO ISSUANCE OF THE WRIT IS CLEAR AND INDISPUTABLE 10

A. General Personal Jurisdiction After Daimler 11

B. The District Court's Assertion of General Personal Jurisdiction Is Patently Erroneous 14

Neither the PA Nor the PLO Has Its Principal Place of Operation in the United States 14

2, The District Court Erred in Ruling that Daimler' s Principal Place of Business Test Applies Only to Foreign Corporations or Banks 15

3. The District Court Committed Clear Error in Its Application of Daimler' s Proportionality Test 17

4. The District Court Committed Clear Error in Requiring the Defendants to Identify a Forum Outside of the Palestinian Territories Where They Could Be Sued 20

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II. THE PA AND THE PLO HAVE NO OTHER ADEQUATE MEANS TO OBTAIN RELIEF 21

A. The High Stakes, Extraordinary Burden, and Foreign Policy Consequences of a Trial Necessitate Mandamus Review 21

1. The Financial Stakes Threaten the PA's and PLO's Viability 21

2. The Extraordinary Burden of the Trial Creates Irreparable Harm 23

3. The PA and PLO Will Be Irreparably Harmed by the Public Spectacle of the Trial 25

B. The Potential Public Disclosure of Confidential Intelligence Files Would Create Irreparable Harm 28

III. ISSUANCE OF THE WRIT IS APPROPRIATE UNDER THE CIRCUMSTANCES

CONCLUSION 30

ii 1484080.1


TABLE OF AUTHORITIES

Page(s)

Cases

Abelesz v. OTP Bank, 692 F.3d 638 (7th Cir. 2012) 73

AGS Int'l Servs. S.A. v. Newmont USA Ltd., 346 F. Supp. 2d 64 (D.D.C. 2004) 15

Atlantigas Corp. v. Nisource, 290 F. Supp. 2d 34 (D.D.C. 2003) 15

Bernstein v, Kerry, 962 F. Supp. 2d 122 (D.D.C. 2013) 26

Bernstein v. Kerry, No. 13-5312, 2014 U.S. App. LEXIS 22223 (D.C. Cir. Nov. 24, 2014) 26

Brunson v. Kalil & Co., 404 F. Supp. 2d 221 (D.D.C. 2005) 15

Cellutech, Inc. v. Centennial Cellular Corp., 871 F. Supp. 46 (D.D.C. 1994) 15

In re The City of New York, 607 F.3d 923 (2d Cir. 2010) 29, 30

Daimler AG v. Bauman, 134 S. Ct. 746 (2014) passim

Fasolyak v. Cradle Soc'y, Inc., No. 06-01126, 2007 U.S. Dist. LEXIS 52041 (D.D.C. July 19, 2007) 15

Frontera Res. Azer. Corp. v. State Oil Co., 479 F. Supp. 2d 376 (S.D.N.Y. 2007) 15

Gilmore v. Palestinian Interim Self-Government Auth., No. 01-853, 2014 U.S. Dist. LEXIS 38037 (D.D.C. Mar. 24, 2014) 28

iii 1484080.1


Gilmore v. Palestinian Interim Self-Government Auth., No. 01-cv-853, 2014 U.S. Dist. LEXIS 102093 (D.D.C. July 28, 2014) 26

Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) -)1

Gucci Am. v. Bank of China, 768 F.3d 122 (2d Cir. 2014) passim

Klinghoffer v. S.N. C. Achille Lauro, 937 F.2d 44 (2d Cir. 1991) 5

Knox v. Palestine Liberation Organization, No. 03-cv-4466 (S.D.N.Y.) 22

Krishanti v. Rajaratnam, No. 2:09-cv-05395, 2014 U.S. Dist. LEXIS 58314 (D.N.J. Apr. 28, 2014) 17

Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012)

Perkins v. Benguet Consol, Mining Co., 342 U.S. 437 (1952)

In re Roman Catholic Diocese of Albany, 745 F.3d 30 (2d Cir. 2014)

Sokolow v. PLO,

76

11, 12

passim

583 F. Supp. 2d 451 (S.D.N.Y. 2008) 3

Sokolow v. PLO, No. 04-cv-397, 2011 U.S. Dist. LEXIS 36022 (S.D.N.Y. Mar. 30, 2011) (Exh 3) 3, 4, 5, 8

Sonera Holding B. V v. Cukurova Holding A.S., 750 F.3d 221 (2d Cir. 2014) 13, 16, 18

Toumazou v. Turkish Republic of N. Cyprus, No. 09-cv-1967, 2014 U.S. Dist. LEXIS 143535 (D.D.C. Oct. 9, 2014) 17

iv 1484080 1


Statutes

18 U.S.C. § 2333(a) 7.21

28 U.S.C. § 1651(a) 10

Other Authorities

Fed. R. Civ. P. 12(b)(2) 3

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QUESTION PRESENTED

Whether the Palestinian Authority ("PA") and Palestine Liberation

Organization ("PLO") should be subjected to a 12-week terrorism trial in which

the Plaintiffs seek $3 billion in damages, plan to publicize confidential intelligence

files, and intend through the trial and its attendant publicity to delegitimize the

Palestinian government at a critical juncture, when the district court's decision that

it may exercise general personal jurisdiction over the PA and PLO is patently

erroneous.

INTRODUCTION

This Court's immediate review is needed of the district court's clearly

erroneous decision that it may exercise general personal jurisdiction over the PA

and PLO even though neither can be considered "essentially at home" in the

United States, as the Supreme Court requires. See Daimler AG v. Bauman, 134 S.

Ct. 746, 754, 760 (2014). The court's exercise of general personal jurisdiction is

based principally on the Washington, D.C. office of the PLO Mission to the United

States, one of approximately 75 embassies, missions or delegations the PLO

operates in countries or organizations around the world. DE 87 at 8-15; Exh. 1(DE

657) at 3; Exh. 2 (DE 497-72) at ¶ 17. Even assuming the presence and activities

of the PLO U.S. Mission office could be imputed to the PA and are not excluded

by the government contacts exception, the presence of a local office is not a

1 1484080,1


sufficient basis for the exercise of general personal jurisdiction over either

defendant. Daimler, 134 S. Ct. at 761 n.18; Gucci Am. v. Bank of China, 768 F.3d

122, 135 (2d Cir. 2014).

Earlier this week, on December 1, the district court denied the PA's and

PLO's motion for dismissal and summary judgment based on lack of personal

jurisdiction. Exh. 1. Inexplicably, the district court held that the "record is

therefore insufficient" for it to conclude that the PA and PLO are "'at home' in a

particular jurisdiction other than the United States." Id, at 4. This is akin to the

district court saying the record is insufficient for it to find that Brazil is not "at

home" in a jurisdiction other than the United States. Even the Plaintiffs' U.S.

litigation counsel Arnold & Porter did not argue that Plaintiffs could satisfy the

Daimler "at home" test. See DE 476 at 1-19.

The PA and PLO face a 12-week jury trial beginning next month, on January

12. Over forty plaintiffs are suing the PA and PLO under the Anti-Terrorism Act,

18 U.S.C. § 2333, in the U.S. District Court for the Southern District of New York.

The lawsuit seeks to hold the PA and PLO responsible for allegedly employing or

providing material support to individuals or groups associated with seven separate

shooting or bombing attacks that took place in or near Jerusalem during the Second

Intifada (2001-2004). The only U.S. fatalities are associated with one of the

bombings, of the Hebrew University, a bombing Plaintiffs allege was carried out

2 1484080,1


by Hamas operatives, not the PA or PLO. See DE 646 at 13. Plaintiffs seek to

delegitimize the PA and PLO by branding them as terrorist organizations and to

destabilize them by seeking staggering damages. See Part ILA. below. The PA

and PLO should not be subjected to a high stakes, politically charged trial in the

U.S., which will cause irreparable harm, in the absence of the district court's

personal jurisdiction over them. Accordingly, mandamus relief is essential.

PROCEDURAL HISTORY

A. The PA's and PLO's Motion to Dismiss

The Palestinian Authority and PLO filed a Rule 12(b)(2) motion to dismiss

for lack of personal jurisdiction in July 2007. DE 45. In its order of September 30,

2008, the Court found that "limited jurisdictional discovery is warranted, prior to

determining defendants' motion to dismiss for lack of personal jurisdiction." DE

58; Sokolow v. PLO, 583 F. Supp. 2d 451, 460 (S.D.N.Y. 2008). Following

personal jurisdiction discovery, the Defendants renewed their Rule 12(b)(2)

motion. DE 82. The Court denied the motion in 2011. DE 87; Sokolow v. PLO,

No. 04-ev-397, 2011 U.S. Dist. LEXIS 36022 (S.D.N.Y. Mar. 30, 2011) (Exh. 3).

In denying the motion to dismiss, the district court held that the PA and the

PLO "purposely engaged in numerous activities that resulted in both entities

having a continuous and systematic presence within the United States" and that the

totality of those activities "justifies the exercise of general personal jurisdiction,"

3 1484080,1


Exh. 3 at *14. In its analysis, the district court identified the following U.S.

contacts: (1) the presence of an office in Washington, D,C. (that of the PLO

Mission to the United States) and a series of activities and relationships stemming

from the basic operation of that office;1 (2) the PA's retention of government

relations firm Bannerman & Associates; and (3) the public appearances of the

Head of the PLO Mission to the United States, who "participated in at least 158

public interviews and media appearances between January 1998 and January

2004." Id. at *21. At no time did the office of the PLO Mission to the United

States have more than 12 employees. Id. at *16-18; Exh. 2 at If 19.

Even though it was "undisputed that the PLO maintained an office in

Washington, D.C." and "that most of the individuals who worked in the D.C.

office were PLO employees," Exh. 3 at *15-16, the district court attributed the

activities of the D.C. office of the PLO Mission to the United States to the PA. Id.

at *17. The court did not make any findings that the PA and PLO were alter egos,

or that the PLO Mission to the United States was an agent of the PA for

jurisdictional purposes. See id. at *16-17.

The court identified thirty-five landline and cellphone numbers and two bank accounts from 2002-2004; a CD account as late as January 2003; and ongoing commercial contracts and transactions with U.S.-based businesses for office supplies and equipment, postage and shipping, news subscriptions, telecommunications and internet, IT support, an accountant, legal services, and credit cards. Exh. 3 at *18.

4 1484080.1


The district court agreed with the PA and PLO that the New York office of

the Permanent Observer Mission of Palestine to the United Nations could not be

treated as a U.S. jurisdictional contact under Klinghoffer v. S.N.C. Achille Lauro,

937 F.2d 44, 52 (2d Cir. 1991). But, with respect to the Washington, D.C. office

of the PLO Mission to the U.S., the court held that the "Klinghoffer jurisdictional

exception is inapplicable because there is no evidence that the D.C.-based activities

involved UN affairs," but rather there was "overwhelming evidence that

Defendants were primarily in Washington, D.C. pursuing their political interest."

Exh. 3 at *26-27. The court ultimately held: "[E]ven after excluding activities

conducted in furtherance of the PLO's observer status and contacts with the federal

government, the remaining contacts would still provide a sufficient basis to

exercise general jurisdiction over the Defendants." Id. at *27-28. According to the

court, "[t]he PLO and the PA were continuously and systematically present in the

United States by virtue of their extensive public relations activities." Id. at *28.

B. The PA's and PLO's Motion for Reconsideration

Following Daimler, the PA and PLO immediately sought reconsideration of

the 2011 order, arguing that the district court could no longer exercise general

personal jurisdiction over them because the allegedly continuous and systematic

public relations activities of the PLO Mission office in Washington, D.C. did not

make them "at home" in the United States. DE 421. In opposing the motion, the

5 1484080 I


Plaintiffs did not argue that the PA or PLO could be considered "at home" in the

U.S. under Daimler, but instead offered a weak array of other arguments, including

a waiver argument and a claim that the PA and PLO are not entitled to due process.

DE 476, Mem. at 1-19. Plaintiffs also argued specific personal jurisdiction as a

fall-back position. Id. at 19-24.

At an April 2014 motions hearing, the district court denied the Daimler

motion from the bench. Notably, the district court did not adopt any of the

arguments advanced by Plaintiffs but instead sua sponte held that it could exercise

general personal jurisdiction consistent with Daimler. The district court

emphasized that Daimler did not constitute a change in controlling law, a position

subsequently rejected by this Court in Gucci, 768 F.3d at 134-36. See Ex. 9 (Tr.

4/11/14) at 68:2-4 ("I don't think there has been such a significant change in the

law that now makes this case not an appropriate case for litigation on this record");

id. at 72:1-6. The district court acknowledged that the West Bank was the PA and

the PLO's "home base" but nonetheless held that their principal place of operation

was essentially irrelevant, and that the test is instead whether their contacts with

fora other than their home base were proportionally greater than their contacts

with the United States. Id. at 71:3-8. The district court also held that the PA and

PLO, not the Plaintiffs, bore the burden of establishing that the Defendants'

"activity elsewhere outside of the West Bank" is greater than their activity in the

6 1484080.1


United States." Id. at 58:9-20. Finally, the district court concluded that it lacked a

sufficient record to decide the issue. Id. at 57:18-21 ("I don't have any basis to

conclude that the Palestinian Authority or PLO's activity is any greater, more

continuous or systematic in any other country than in the United States").

Inexplicably, the court went so far as to state that it did not "have a basis to

conclude that the type of activity in the United States is greater, more significant,

continuous and systematic even than the West Bank." Id. at 59:13-15. Thus, even

though the Plaintiffs had conducted personal jurisdiction discovery and the PLO's

jurisdictional contacts consisted of a single 12-person office and the PA's contacts

consisted of a contract with a government relations firm, the district court

concluded it could not determine whether the Palestinian Authority and PLO

engaged in greater levels of activity outside the United States, including in the

West Bank, than in the United States. The district court did not issue a written

opinion denying the motion for reconsideration.

A week after the hearing, on April 18, the PA and PLO moved to certify the

personal jurisdiction issue for interlocutory appeal to this Court. DE 472. The

district court summarily denied the motion in June 2014. DE 543.

C. The PA's and PLO's Motion for Summary Judgment

In May 2014, the PA and PLO moved for summary judgment. While they

maintained that the factual record developed through personal jurisdiction

7 1484080 I


discovery precluded a finding that they were "at home" in the U.S., they

nonetheless provided the district court with a Rule 56.1 statement of undisputed

material facts demonstrating that the U.S. activities of the PA and PLO were a tiny

fraction of their worldwide activities during the relevant period. See Exh. 4 (DE

497-1) at ¶¶ 31-66. They also provided a sworn declaration from the current head

of the PLO Mission to the United States (now called the General Delegation of the

PLO to the United States). See Exh. 2.

In contrast to the approximately 12 employees at the PLO Mission to the

United States, Sokolow, 2011 U.S. Dist. LEXIS 36022, at *16-18, the PA had

approximately 100,000 employees during the same period, and the PLO employed

approximately 1,300 persons just to work at its embassies, missions and

delegations in countries or organizations outside the U.S. Exh. 2 at ¶18, Exh. 4 at

¶ 40. Moreover, during the 1998-2004 period, there were 11 embassies, missions

or delegations maintained by the PLO around the world that were larger than the

U.S. mission. Exh. 2 at ¶ 19. The PA and PLO also demonstrated that the budget

of the U.S. office was a small fraction of the budgets of the PA and PLO. Exh. 4 at

TT 33-39, 52-62.

In opposing the motion, Plaintiffs merely stated that, "[i]f the Court were to

revisit personal jurisdiction (yet again), it would have to deny the motion for the

reasons in Plaintiffs' Opposition to Defendants' motion to reconsider." DE 545,

8 1484080.1


Mem. at 50. Thus even after the court's April 2014 ruling, Plaintiffs still were not

prepared to argue that the PA or PLO are at home in the U.S. under Daimler.

On September 30, shortly after this Court issued its opinion in Gucci, 768

F.3d at 122 (2d Cir. 2014), the Palestinian Authority and PLO filed a "Notice of

New Second Circuit Authority Interpreting Daimler and Compelling Dismissal for

Lack of Personal Jurisdiction," noting that Gucci squarely rejected key positions

the district court took at the April 2014 hearing on the scope and importance of

Daimler. DE 604 at 1-6.

At a November 20 status hearing, the district court orally denied the motion

for summary judgment. The court stated that this case is the "rare instance that the

[Supreme] Court referred to in Daimler in which an analysis of the business,

commercial or otherwise appropriate contacts with the U.S. were so continuous

and systematic that it is sufficient to support the exercise of jurisdiction." Exh. 5 at

12:4-8. On December 1, the district court issued a Memorandum Decision and

Order denying the personal jurisdiction component of the motion for summary

judgment and holding that, "[u]nder a post-Daimler and Gucci analysis, this Court

has personal jurisdiction . . . over the PA and PLO." Exh. 1 at 3.

ARGUMENT

The All Writs Act empowers "all courts established by Act of Congress" to

"issue all writs necessary or appropriate in aid of their respective jurisdictions and

9 1484080.1


agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The writ has

been used "both at common law and in the federal courts...to confine the court

against which mandamus is sought to a lawful exercise of its prescribed

jurisdiction." In re Roman Catholic Diocese of Albany, 745 F.3d 30, 35 (2d Cir.

2014) (quotation marks omitted) (granting petition for writ of mandamus and

dismissing lawsuit for lack of personal jurisdiction in light of Daimler).

There are "[t]hree conditions" to issuance of a writ of mandamus: (1) the

petitioner must demonstrate that the "right to issuance of the writ is clear and

indisputable"; (2) "the party seeking issuance of the writ must have no other

adequate means to attain the relief [it] desires"; and (3) "the issuing court, in the

exercise of its discretion, must be satisfied that the writ is appropriate under the

circumstances." Id. Each is satisfied here.

I. THE RIGHT OF THE PA AND THE PLO TO ISSUANCE OF THE WRIT IS CLEAR AND INDISPUTABLE

"A district court abuses its discretion if it (1) bases its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence or

(2) renders a decision that cannot be located within the range of permissible

decisions." In re Roman Catholic Diocese of Albany, 745 F.3d at 37 (internal

quotation marks omitted). Here, the court indisputably erred in holding that it

could exercise general personal jurisdiction over the PA and PLO.

10 1484080.1


A. General Personal Jurisdiction After Daimler

In Daimler, the Supreme Court held that, aside from an "exceptional case," a

district court may assert general (or "all purpose") personal jurisdiction over a

defendant only if the forum is the defendant's place of incorporation or principal

place of operation. 134 S. Ct. at 761 n.19. The Court emphasized that "only a

limited set of affiliations with a forum will render a defendant amenable to all-

purpose jurisdiction there." Id. at 760. "With respect to a corporation, the place of

incorporation and principal place of business are paradigm] . . . bases for general

jurisdiction. Those affiliations have the virtue of being unique—that is, each

ordinarily indicates only one place—as well as easily ascertainable." Id. (internal

citation and quotations omitted). The Court expressly rejected earlier decisions

exercising jurisdiction based on the "presence of a local office." Id. at 761 n.18.

In Daimler, the Supreme Court cited Perkins v. Benguet Consol. Mining Co.,

342 U.S. 437 (1952), as the "textbook" example of the "exceptional case" in which

general personal jurisdiction could be asserted over a foreign defendant whose

place of incorporation and principal place of business is outside the forum.

Daimler, 134 S. Ct. at 755, 761 n.19. In that case, a Philippine company moved its

business to Ohio during World War II. The Supreme Court "held that the Ohio

courts could exercise general jurisdiction over [the defendant] without offending

11 1484080.1


due process. That was so .. . because Ohio was the corporation's principal, if

temporary, place of business." Id. at 756 (internal citation and quotation omitted).

In contrast to the defendant's contacts with Ohio in Perkins, the Court found

that "Daimler's slim contacts with [California] hardly render it at home there." Id.

at 760; see also id. at 761 n.19 (noting that Daimler's activities in California

"plainly do not approach [the] level" that would make Daimler "at home" in

California). Those activities consisted of multiple California-based facilities. Id.

at 752. Daimler's U.S. distributor was the largest supplier of luxury vehicles to the

California market, and its California sales "account[ed] for 2.4% of Daimler's

worldwide sales." Id. The Court concluded that "[i]f Daimler's California

activities sufficed to allow adjudication of this Argentina-rooted case in California,

the same global reach would presumably be available in every other State in which

[its] sales are sizable." Id. at 750. The Court rejected such a result as an

"exorbitant exercise[] of all-purpose jurisdiction." Id. at 761-62.

Responding to Justice Sotomayor's comment in her concurring opinion that

2.4% of Daimler's sales was $4.6 billion, "a considerable sum by any measure,"

and that its California distributor has "multiple offices and facilities in California,

including a regional headquarters," id at 767, the majority clarified that "the

general jurisdiction inquiry does not locu[s] solely on the magnitude of the

defendant's in-state contacts.' General jurisdiction instead calls for an appraisal of

12 1484080.1


a corporation's activities in their entirety, nationwide and worldwide. A

corporation that operates in many places can scarcely be deemed at home in all of

them." Id. at 762 n.20 (internal citation omitted).

This Court already has applied Daimler on several occasions, reversing

district courts that have not applied the Daimler standard. See, e.g., In re Roman

Catholic Diocese of Albany, 745 F.3d 30 (2d Cir. 2014); Sonera Holding B. V. v.

Cukurova Holding A.S., 750 F.3d 221 (2d Cir. 2014). One case merits particular

attention. In Gucci, the Court reversed the district court, holding that it could not

exercise personal jurisdiction over the Bank of China even though it continuously

and systematically did business in the forum, including through branch offices.

768 F.3d at 126. "Just like the defendant in Daimler, the nonparty Bank here has

branch offices in the forum, but is incorporated and headquartered elsewhere." Id.

at 135. The Court also found that "this is clearly not an exceptional case where the

Bank's contacts are so continuous and systematic as to render [it] essentially at

home in the forum." Id. (internal citation and quotation omitted). Specifically, the

Bank of China "has only four branch offices in the United States and only a small

portion of its worldwide business is conducted in New York." Id. Accordingly,

"[f]ollowing Daimler, there is no basis consistent with due process for the district

court to have exercised general jurisdiction over the Bank." Id.

13 1484080.1


B. The District Court's Assertion of General Personal Jurisdiction Is Patently Erroneous.

1. Neither the PA Nor the PLO Has Its Principal Place of Operation in the United States.

During the relevant period, the Palestinian Authority had its headquarters in

the Gaza Strip and West Bank. Exh. 4 at ¶ 32. As the government for

approximately 4.4 million Palestinians living in the West Bank and Gaza Strip, the

Palestinian Authority "carries out a broad range of governmental and humanitarian

activities." Exh. 6 (Bernstein v. Kerry, No. 13-5312, Brief of Appellees) at 17.

The PLO represents the Palestinian people, wherever located, in their

aspirations for a homeland. The PLO is the body that negotiates with Israel and

carries out the foreign affairs function for Palestine, including by maintaining

diplomatic embassies, delegations, and missions throughout the world. Exh. 4 at

¶¶ 1, 14. During the relevant period, the PLO had its headquarters in the Gaza

Strip, the West Bank, and Amman, Jordan. Id. ¶ 31.

In asserting general personal jurisdiction over the PA and PLO, the only

significant forum contact the district court identified was the Washington, D.C.

office of the PLO Mission to the United States. Under Daimler and Gucci, the

presence of a local office is not a basis for the exercise of general personal

jurisdiction. In any event, the activities of the office were exempt under the

government contacts exception, as was the PA's retention of a lobbying firm. See

14 1484080.1


Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 45 (D.D.C. 2003) (lobbying

and government relations activities are "precisely the type of activities protected by

the 'government contacts' exception and cannot serve as the basis for personal

jurisdiction"). Under the "government contacts exception," a defendant's non-

commercial contacts with the nation's capital are exempted from consideration

when a court determines whether it has personal jurisdiction over that defendant.

See, e.g., Brunson v. Kalil & Co., 404 F. Supp. 2d 221, 235 (D.D.C. 2005);

Cellutech, Inc. v. Centennial Cellular Corp., 871 F. Supp. 46, 50 (D.D.C. 1994).

Even before Daimler, "the presence of an embassy or consulate alone is

insufficient to find general jurisdiction." Frontera Res. Azer. Corp. v. State Oil

Co., 479 F. Supp. 2d 376, 386 n.4 (S.D.N.Y. 2007); accord Fasolyak v. Cradle

Soc'y, Inc., No. 06-01126, 2007 U.S. Dist. LEXIS 52041, at *29-*34 (D.D.C. July

19, 2007); AGS Int'l Servs. S.A. v. Newmont USA Ltd., 346 F. Supp. 2d 64, 76

(D.D.C. 2004).

2. The District Court Erred in Ruling that Daimler's Principal Place of Business Test Applies Only to Foreign Corporations or Banks.

In its December 1 ruling, the district court stated that because the PA and

PLO are not "foreign corporations," they "therefore are not subject to the

traditional analysis in determining a defendant's place of incorporation or principal

place of business." DE 657 at 3. See also Exh. 5 at 11:23-12:1 ("This case does

fall, I believe, outside of the traditional analysis that the Court in Daimler and also

15 14134080.1


in Gucci laid out with regard to a foreign corporation."); id. at 13:1-5 ("I think it is

important that Gucci also deals with a different circumstance. It deals with .

whether or not a bank's branches in the forum is sufficient to assert general

jurisdiction").

To the extent the district court is suggesting that the Constitutional due

process test for the assertion of general personal jurisdiction laid out in Daimler is

limited to corporations, the district court clearly is wrong. The "essentially at

home" test is not limited to corporations. As this Court recently explained, "The

natural result of general jurisdiction's 'at home' requirement is that 'only a limited

set of affiliations with a forum will render a defendant amenable to all-purpose

jurisdiction there.'" Sonera Holding B. V., 750 F.3d at 225 (quoting Daimler, 134

S. Ct. at 760). "For an individual, the paradigm forum for the exercise of general

jurisdiction is the individual's domicile; for a corporation, it is an equivalent place,

one in which the corporation is fairly regarded as at home." Daimler, 134 S. Ct. at

760 (quoting Goodyear, 131 S. Ct. at 2853-54) (internal quotation marks omitted,

emphasis added). For other organizations, it also is an equivalent place to an

individual's domicile, such as a principal place of operation. It is not, as the

district court ruled, every place in which the defendant engages in continuous and

systematic activity. That is the test the Supreme Court rejected as "unacceptably

16 1484080.1


grasping" in favor of the "at home" test, a test that applies to all types of

defendants. Id. at 760-761.

Other courts have had no difficulty adapting the "at home" test to defendants

that are not corporations. See, e.g., Krishanti v. Rajaratnam, No. 2:09-cv-05395,

2014 U.S. Dist. LEXIS 58314, at *6, *15-21 (D.N.J. Apr. 28, 2014) (applying

Daimler and dismissing for lack of personal jurisdiction a suit against a "Sri

Lankan based non-governmental organization"); Toumazou v. Turkish Republic of

N. Cyprus, No. 09-cv-1967, 2014 U.S. Dist. LEXIS 143535, at *11 (D.D.C. Oct. 9,

2014) (holding that the Turkish Republic of Northern Cyprus "is 'home' in the

northern Cyprus, as the name suggests, not in the District of Columbia").

3. The District Court Committed Clear Error in Its Application of Daimler's Proportionality Test.

Daimler held that only in an "exceptional case" could an organizational

defendant be found "at home" in a forum that is not its principal place of business.

Daimler, 134 S. Ct. at 761 n.19 ("We do not foreclose the possibility that in an

exceptional case . . . a corporation's operations in a forum other than its formal

place of incorporation or principal place of business may be so substantial and of

such a nature as to render the corporation at home in that [forum]"). In assessing

whether the defendant's contacts with the forum are so substantial that an

exceptional case exists for the assertion of general personal jurisdiction outside the

17 1484080 1


paradigm fora, the district court must engage in an "appraisal of [the defendant's]

activities in their entirety, nationwide and worldwide." Id. at 762 n.20.

The district court engaged in patent error when it interpreted Daimler to

require the Palestinian Authority and PLO to establish that they are not "more at

home in the United States than they are any place outside the West Bank." Exh. 7

at 60:19-24 (emphasis added); see also id. at 60:25-61:1 ("I don't have any

evidence that they have a greater level of activity any place else outside of the

West Bank"); accord id. at 57:15-58:2, 61:10-16; 62:4-6, 68:12-22. See also Exh.

1 at 4 ("Defendant PA estimates that it had over 100,000 employees in 2002, but

does not identify which, if any of those employees engaged in activities in any

country outside of the Palestinian Territories in the West Bank and Gaza Strip.");

id. (concluding that the PLO did not establish that it is at home in other countries

where it operates embassies).

Neither Daimler nor Gucci authorizes the district court to exclude the

activities in the paradigm forum when undertaking the proportionality test. In

Gucci, for example, this Court did not exclude the Bank of China's operations in

China when determining whether its U.S. activities were significant compared to

its global activities. To the contrary, it included the bank's 10,145 domestic

branches in the analysis. Gucci, 768 F.3d at 135. Similarly, in Sonera, 750 F.3d

at 226, this Court contrasted the defendant's forum contacts with its conduct in

18 148408(11


Turkey, its principal place of operation and place of creation. It did not exclude

the defendant's activities in Turkey and require the defendant to establish that its

forum contacts were less significant than those in other countries outside Turkey.

The district court's test would invariably result in a defendant being at home

in a forum other than the paradigm forum. For example, even if 90% of a

defendant's activities are where it has its principal place of business, if the

defendant has 6% of its activities in a forum state and is continuous and

systematically present there, under the district court's test, the defendant would be

"at home" in the forum. Excluding the activities in the paradigm home, the

defendant would be more "at home" in the forum than anywhere else. This is

contrary to the Supreme Court's expectation that a defendant will be subject to

general personal jurisdiction generally only in one place. 134 S. Ct. at 760.

The district court's approach to the proportionality test also would require

significant fact development to determine a defendant's level of activities in a

variety of states and/or countries, even though the Supreme Court created a simple

test that would rarely require jurisdictional discovery but instead would require a

Perkins-type situation to look beyond the paradigm forum. Daimler, 134 S. Ct. at

762 n.20 ("it is hard to see why much in the way of discovery would be needed to

determine where a corporation is at home"); id. at 760 (the "at home" test has the

virtue of making it "easily ascertainable" where a defendant is subject to general

19 1484080.1


personal jurisdiction"); id. at 762 n.20 (an entity that operates in many places "can

scarcely be deemed at home in all of them").

4, The District Court Committed Clear Error in Requiring the Defendants to Identify a Forum Outside of the Palestinian Territories Where They Could Be Sued.

In its December 1 ruling, the district court faulted the PA and PLO for

"fail[ing] to identify an alternative forum where Plaintiffs' claims could be

brought, and where the foreign court could grant a substantially similar remedy."

DE 657 at 2 n.1 (quoting DE 87 at 16). The Supreme Court's test for general

personal jurisdiction, however, imposes no such requirement.

In any event, the district court's assertion was contradicted by Plaintiffs'

counsel at the April 11, 2014 hearing where he indicated that if the case were

dismissed for lack of personal jurisdiction, Plaintiffs would re-file the case in

Israel. See Exh. 7 at 43:1-5 ("Remember, basically what they're asking for here is

a ruling that would say you can't litigate the case here, so it would just go to Israel.

It's not like it's going to end the case on the merits. They're essentially looking for

a change in forum.").

To be clear, just because the PA and PLO are not subject to general personal

jurisdiction in the United States does not mean they could never be sued here.

Specific personal jurisdiction remains available for lawsuits that arise of the PA's

or PLO's contacts with the United States. There is nothing remarkable about this

20 1484080.1


fact. See Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2854

(2011) ("in the wake of International Shoe, specific jurisdiction has become the

centerpiece of modern jurisdiction theory, while general jurisdiction plays a

reduced role") (internal citation and quotation omitted). Of course, here, as the

district court found, there was no basis for the assertion of specific personal

jurisdiction. See Exh. 7 at 43:20-54:16.

Accordingly, the PA and PLO's "right to a writ of mandamus is 'clear and

indisputable' because the district court's exercise of general jurisdiction amounted

to a 'clear abuse of discretion,' if not a 'judicial usurpation of power.'" in re

Roman Catholic Diocese of Albany, 745 F.3d at 41.

H. THE PA AND THE PLO HAVE NO OTHER ADEQUATE MEANS TO OBTAIN RELIEF

A. The High Stakes, Extraordinary Burden, and Foreign Policy Consequences of a Trial Necessitate Mandamus Review.

1, The Financial Stakes Threaten the PA's and PLO's Viability.

Collectively, the Plaintiffs seek $1billion in compensatory damages, which

amounts to $3 billion by operation of the Anti-Terrorism Act's automatic trebling

provision. DE 4 at 44 ("First Amended Complaint); 18 U.S.C. § 2333(a)

(providing that successful plaintiffs "shall recover threefold the damages he or she

sustains"). In another case against the PA and PLO, involving a $193 million

default judgment, Knox v. Palestine Liberation Organization, No. 03-cv-4466

21 1484080,1


(S.D.N.Y.), the U.S. Department of Justice submitted a letter to the district court

stating that "the United States remains concerned about the potentially significant

impact that these cases may have on the financial and political viability of the

defendants." Exh. 8 (2/29/08 letter from C. Nichols to Judge Marrero) at 1.

Putting at risk the financial viability of the Palestinian Authority and PLO

has grave foreign policy consequences. As the United States recently explained in

defending its practice of providing substantial foreign aid to the Palestinian

Authority, "U.S. Government support to the Palestinian Authority and Palestinian

people is intended to promote the Palestinian Authority's fiscal viability,

strengthen public intuitions, develop the Authority's capacity to provide security,

foster private sector economic growth, and meet humanitarian needs." Exh. 6 at 4-

5; see also id. at 18. Such aid is provided to the PA in furtherance of U.S. "foreign

policy to achieve a two-state solution as part of a comprehensive regional peace in

the Middle East." Id. at 4 (internal quotation omitted). Because the financial

stability of the PA is essential to important U.S. foreign policy objectives, that

stability should not be put at risk without first establishing that the district court is

properly exercising general personal jurisdiction.

The Seventh Circuit recently issued a writ of mandamus to a district court on

a personal jurisdiction issue. As here, the case involved a high-profile issue (a suit

against Hungarian banks by Holocaust victims alleging expropriation and

22 1484080.1


financing of genocide), "appreciable foreign policy consequences," substantial

financial stakes, and only a tangential connection to the United States. Abelesz v.

OTP Bank, 692 F.3d 638, 651 (7th Cir. 2012). As here, the defendant had moved

for reconsideration and also sought certification for an interlocutory appeal. See

id. at 645. The court of appeals found that the substantial financial stakes created a

risk of irreparable harm because the sheer magnitude of the risk defendants are

exposed to presented "intense pressure to settle." Id. at 652-53.

In granting the petition and directing the district court to dismiss the

defendants, the court of appeals emphasized: "The consequences for the plaintiffs

themselves are also very substantial. If the claims against these defendants do not

belong in U.S. courts, no matter how compelling the claims might be on the merits,

we would do the plaintiffs no favors by allowing them to spend more time and

money to proceed further toward an inevitable dismissal." Id. at 651. The court

concluded: "It is the confluence of these specific factors, together with the crystal

clarity of the personal jurisdiction issue, that removes this case from the category

of 'ordinary' denials of motions to dismiss." Id. Here, a similar confluence of

factors necessitates mandamus relief.

2. The Extraordinary Burden of the Trial Creates Irreparable Harm.

The Palestinian Authority has limited financial and personnel resources and

is consumed with the task of maintaining security in the West Bank and Gaza,

23 1484080,1


while providing essential services to millions of Palestinians under extraordinarily

trying and volatile circumstances. Defending a 12-week terrorism trial in the

United States requires a commitment of resources and personnel that are critically

needed for performing governmental functions.

Repeated efforts to narrow the issues for trial have to date been largely

rejected by the district court. The district court denied the PA's and PLO's motion

for separate trials of the seven shooting and bombing attacks and to bifurcate the

liability and damages phases of the trial. DE 650. Plaintiffs have proffered over

1000 trial exhibits, many of which are rank hearsay, highly inflammatory and

prejudicial. The district court has not yet ruled on any of the PA's and PLO's

objections to Plaintiffs' exhibits. In fact, at a November 20, 2014 status

conference the court informed the parties: "I think at this point you should prepare

for trial, assuming that all of the evidence that you want to put in will be in, and all

of the evidence that they want to put in will be in." Exh. 5 at 33:10-13.

On November 19, 2014, the court denied the PA's and PLO's motion for

summary judgment as to the Anti-Terrorism Act claim. DE 646. In doing so, the

court improperly "assume[d] the admissibility of Plaintiffs' evidence." Id. at 3 n.3.

While acknowledging that courts assess the admissibility of evidence to determine

if a party is entitled to summary judgment, the district court held that, "at this

stage, this Court limits its analysis to whether the probative force of Plaintiffs'

24 1484080.1


proffered proof is such that there is a genuine need for trial." Id. at 5. The district

court thus determined there was a triable issue of fact for the jury without assessing

whether the relied upon evidence ought to reach a jury.

The Plaintiffs' litigation strategy, together with the district court's deferral of

decisions on admissibility of witnesses and documents, has combined to make the

trial extraordinarily burdensome. The Palestinian Authority and PLO should not

be haled into court in the United States for a 12-week trial when controlling

Supreme Court precedent precludes the court's exercise of jurisdiction.

3. The PA and PLO Will Be Irreparably Harmed by the Public Spectacle of the Trial.

The Palestinian Authority and PLO have been the repeated targets of a

campaign by one of Plaintiffs' counsel, the Israel Law Center.2 The group has

brought a dozen lawsuits against the Palestinian Authority and PLO in the U.S., a

number of which already have been dismissed.3 Last month, the group petitioned

2 In addition to U.S. litigation counsel Arnold & Porter, the Plaintiffs are represented by Nitsana Darshan-Leitner, founder of the Israel Law Center. See DE 487, Mem, at 13 (describing Ms. Darshan-Leinter as "Plaintiffs' co-counsel in Israel"). The stated goal of the Israel Law Center, in addition to "safeguarding the Jewish State," is to "bankrupt" and "economically destroy Middle Eastern hate groups" and "terror groups." See Exh. 9 (http://israellawcenter.org/war-zones/bankrupting-terrorism/); Exh. 10 (http ://israellawcenter.orgiabout/safeguarding-the-j ewi sh- state!) .

3 See, e.g., Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012); Gilmore v. Palestinian Interim Self-Government Auth., No. 01-cv-853, 2014 U.S. Dist. LEXIS 102093 (D.D.C. July 28, 2014).

25 1484080.1


the International Criminal Court to open a war crimes investigation against PA

President Mahmoud Abbas. See Exh. 11. The group also filed a lawsuit against

the U.S. Government seeking to end foreign aid to the PA. See Exh. 12. That

lawsuit was dismissed. Bernstein v. Kerry, 962 F. Supp. 2d 122, 124 (D.D.C.

2013), aff'd, 2014 U.S. App. LEXIS 22223 (D.C. Cir. Nov. 24, 2014).

The founder of the group, Nitsana Darshan-Leitner, is already announcing to

the media her intent to make a public spectacle of the Sokolow trial. She told one

media outlet:

This is a precedent and a historical decision of the court. We've sued the Palestinian Authority in the past, and these suits were heard by different federal judges who ruled in them, but this is the first time a trial will be heard by an American jury, a trial that is open to the public and the world media. This is a historic opportunity to call to the stand many PLO and PA officials for an in-depth interrogation about their actions. The PA, the PLO and Abbas will have to answer to these actions.

See Exh. 13.

The reputational harm and interference with U.S. foreign policy goals

resulting from this trial cannot be overstated. The plaintiffs are suing the

Palestinian Authority under broad notions of vicarious liability for alleged acts of a

handful of low-level employees. Plaintiffs, however, are not careful to distinguish

between the actions of the Palestinian Authority and its leadership versus the

unauthorized conduct of individual employees. The opening line of Plaintiffs'

opposition to the Defendants' motion for summary judgment was: "Defendants

26 1484080.1


have American blood on their hands." DE 545, Mem. at 1. Taking a statement

from President Obama out of context, Plaintiffs also implied that the Palestinian

Authority presents "a direct threat to America at home." Id.

There can be little doubt that Plaintiffs intend to paint the Palestinian

Authority and PLO as terrorist organizations intent on spilling American blood.

Although such characterizations are outrageously wrong, there is a substantial risk

the trial will be used as vehicle to create publicity and engage in fear-mongering at

the PA's and PLO's expense.

The Palestinian Authority is at a critical juncture as it continues to seek

recognition for the State of Palestine, maintain law and order in the West Bank,

reassert control over the Gaza Strip, and address heightened tensions between

Israelis and Palestinians in Jerusalem. The Palestinian Authority plays an essential

role in the United States efforts to achieve a two-state solution as part of a

comprehensive regional peace in the Middle East. See Exh. 6 at 3-4. This trial

should not go forward in the absence of a basis for the assertion for personal

jurisdiction. That basis is utterly lacking here, and this Court's immediate

intervention is needed to prevent the irreparable harm associated with the trial,

27 1484080.1


B. The Potential Public Disclosure of Confidential Intelligence Files Would Create Irreparable Harm.

In this case, the district court ordered the production of hundreds of pages of

General Intelligence Service ("GIS") files for dozens of individuals. DE 380. The

GIS is an intelligence agency of the PA. The documents at issue reveal law

enforcement activities of the GIS, including the identity of witnesses and

intelligence sources, and public disclosure of them would undermine important

interests of the PA. The PA clearly has a compelling interest in preventing public

disclosure of its intelligence materials. See Exh. 14 (Declaration of Majed Faraj) at

111112-14, 17 (declaring that disclosure of GIS investigative methods would, inter

alia, increase security threats and impair GIS's ability to conduct future

investigations); see also Gilmore v. Palestinian Interim Self Government Auth.,

No. 01-853, 2014 U.S. Dist. LEXIS 38037, at *4 (D.D.C. Mar. 24, 2014) (citing

"numerous persuasive arguments for concluding that disclosure of the requested

[GIS] files would 'undermine important interests' of the PA.").

The GIS files were produced pursuant to a protective order. Recently,

journalists have moved to intervene to seek public disclosure of the files. DE 628.

At the November 20 hearing, the court announced its intent to make public all

documents that are admitted into evidence. Exh. 5 at 15:7-16.

In In re Roman Catholic Diocese of Albany, 745 F.3d at 36, this Court

issued a writ of mandamus dismissing the defendant on Daimler grounds in part

28 1484080,1


because of the potential irreparable harm from disclosure of confidential material.

The district court in that case had entered a discovery order requiring disclosure of

materials relating to child sex abuse, including the identifying names and addresses

of the investigators and summaries of the oral and written statements taken during

the course of the investigation. The Court of Appeals concluded that mandamus

was "the only means for the Diocese to obtain the relief it seeks," especially given

the "clarity of the district court's error, and the need for guidance from this Court

regarding the proper general personal jurisdiction inquiry." Id. at 35, 37. See also

In re The City of New York, 607 F.3d 923, 932; 934 (2d Cir. 2010) (issuing writ of

mandamus to prevent the disclosure of confidential reports of undercover police

officers because the petitioning parties "had no other adequate means to obtain

relief" because "a remedy after final judgment cannot unsay the confidential

information that has been revealed").

Similarly, here, the PA will be irreparably harmed if its law enforcement

methods and sources are publicly revealed at trial. A reversal on appeal from a

final judgment will not provide the PA relief from this considerable harm.

III. ISSUANCE OF THE WRIT IS APPROPRIATE UNDER THE CIRCUMSTANCES

"Although the general rule [is] that appellate courts should avoid

determining jurisdictional issues on a petition for mandamus, the unique

circumstances of this case...counsel in favor of immediate review," In re Roman

29 1413408G.I


Catholic Diocese of Albany, 745 F.3d at 37 (internal citations omitted). The

district court's personal jurisdiction determination "is patently erroneous," id., and

the lack of immediate review will create irreparable harm, including to important

U.S. foreign policy interests.

As in In re Roman Catholic Diocese of Albany, where this Court granted

mandamus on a Daimler issue, "[i]t is this extraordinary combination — the

particularly serious harms preventable only through issuance of a writ of

mandamus, the clarity of the district court's error, and the need for guidance from

this Court regarding the proper general personal jurisdiction inquiry," particularly

as applied to foreign governing authorities, "that renders this case ripe for

mandamus relief." 745 F.3d at 37; see also In re City of New York, 607 F.3d at

940 (holding that mandamus is especially appropriate where there is a "novel and

significant question[] of law," and a "legal issue[] whose resolution will aid in the

administration of justice.").

CONCLUSION

The PA and PLO respectfully request that this Court issue a writ of

mandamus and order the district court to dismiss this case for lack of personal

jurisdiction.

30 1484080.1


December 3, 2014 Respectfully Submitted,

/s/ Laura G. Ferguson Laura G. Ferguson

Counsel of Record Brian A. Hill MILLER & CHEVALIER CHARTERED 655 15th Street, NW Washington, DC 20005 (202) 626-5800

Counsel for Petitioners the Palestinian Authority and the Palestine Liberation Organization

31 1484080.1


CERTIFICATE OF SERVICE

I hereby certify that on December 3, 2014, I electronically filed the

foregoing with the Clerk of Court using the CM/ECF System, which will send

notice of such filing to all registered CM/ECF users. I further certify that on

December 3, 2014 I have mailed the foregoing document by Federal Express

Overnight to the following participants, addressed as follows:

Kent A. YalowitzArnold & Porter LLP399 Park AvenueNew York, NY 10022Email: [email protected]

Robert Joseph TolchinThe Berkman Law Office, LLC111 Livingston Street, Suite 1928Brooklyn, NY 11201Email: [email protected]

Judge George B. DanielsUnited States District Court – Southern District of New YorkDaniel Patrick Moynihan United States Courthouse500 Pearl St., Chambers 11ANew York, NY 10007-1312

/s/ Laura G. Ferguson


Documents

No. 14- - Reutersblogs.reuters.com/.../sokolowvpa-pamandamusbrief.pdf · No. 14- IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ... Sokolow v. PLO, 76 11, 12 passim