N.Y. state appeals ruling opens courthouse door to foreign victims

By Alison Frankel
September 18, 2013

In the last few months, the victims of supposed overseas human rights atrocities have begun to feel the impact of the U.S. Supreme Court’s ruling last April in Kiobel v. Royal Dutch Petroleum. As you know, the Supreme Court held that Alien Tort Statute cases cannot proceed in U.S. courts unless they have a significant connection to the United States. As a result, ATS claims by foreign citizens accusing international corporations of abetting torture and murder on foreign soil have since been dismissed against Daimler, Arab Bank, Rio Tinto and KBR. Some ATS cases have survived post-Kiobel scrutiny, as my friend Michael Goldhaber reported for The American Lawyer in August, and alleged victims can still assert claims under Other U.S. laws that specifically apply to conduct abroad. But without a doubt, Kiobel has extinguished the jurisdiction of U.S. courts over a wide swath of human rights litigation.

New York state courts, on the other hand, are ready and willing to hear the cases. Or, at least, that’s the implication of a comprehensive decision Tuesday by the state Appellate Division, First Department, that permits 50 Israeli citizens to proceed with claims that Bank of China is liable under Israeli law for facilitating bombings and rocket attacks in Israel by Hamas and Palestine Islamic Jihad. The state appeals court expressly broke with the 2nd Circuit Court of Appeals in holding that Israeli law should apply to the alleged victims’ claims because that’s where they were injured, rejecting the 2nd Circuit’s 2012 decision in a parallel terror-finance case that the laws of the defendant’s home jurisdiction should apply because those courts have the greatest interest in regulating the defendant’s conduct.

According to Robert Tolchin of The Berkman Law Office, who represents the plaintiffs in both the 2nd Circuit and New York state-court cases, the Appellate Division’s ruling opens the door to claims in New York courts by foreigners asserting the laws of their own countries against international defendants. “The Supreme Court in Kiobel knocked out the Alien Tort Statute, but here comes New York negligence law,” he said.

Bank of China and its lawyers at Patton Boggs had argued that New York isn’t the proper forum for a case pitting Israelis against a Chinese bank, particularly because most of the alleged conduct took place in China. The bank also said that under the laws of New York or China, it is not liable to the alleged victims of its customers’ wrongful actions. It argued that if Israeli law conflicts, the appeals court must apply New York or Chinese law.

The trial judge in the case, New York State Supreme Court Justice Barbara Kapnick, hadn’t specified whose laws she used when she denied the bank’s motion to dismiss in July 2011. So the appeals court, according to the opinion by Judge Paul Feinman, first analyzed whether the outcome of the case might be affected by the choice of law. It concluded that it very well could be because Israeli negligence laws impose duties beyond New York law, requiring a determination of whether a reasonable person ought to have foreseen the wrongful consequences of his actions. (In this case, the Israelis argued that Bank of China is one of the few financial institutions in the world that continues to do business with groups the U.S. has designated at Foreign Terrorist Organizations and should have known it was facilitating their attacks on civilians.)

Once it determined that it needed to decide whose laws to apply, the Appellate Division looked for guidance from a 1985 opinion by the New York Court of Appeals in Schultz v. Boy Scouts of America, the leading state case on the issue. Because the conflicting Israeli and New York negligence laws are intended to regulate conduct, the court said, “the law of the place where the tort occurs will generally apply, with the locus of the tort generally defined as the place of the injury.” According to the appeals court, the jurisdiction in which the injury occurred “will almost always have the greatest interest in regulating conduct within its borders.”

That’s not exactly how the 2nd Circuit saw things when it considered parallel cases by Israelis suing American Express and the Lebanese Canadian Bank for supposedly facilitating bombings by a branch of Hezbollah. The 2nd Circuit said that because the cases involved the banks’ conduct, the place of injury was where the banking transactions occurred. American Express is headquartered in New York and engages in banking services in New York, the federal appeals court said, so New York – not Israel – has the greatest interest in the litigation and its laws must apply. (Presumably, if the 2nd Circuit had looked at the Bank of China case, it would have said Chinese law applies.)

But according to the state appeals court in Tuesday’s ruling, its federal-court colleagues “did not address the rule that when the conduct takes place in one jurisdiction and the plaintiff suffers injury in another, the locus of the plaintiff’s injury will have the greater interest.” The state said it is a “well-settled principle” that the greater interest belongs to the jurisdiction that is “the place of the last event necessary to cause the injury.” Here, the last event in the chain was bombings in Israel, not wire transactions originating in China and passing through New York, the Appellate Division said. So Israeli law applies, it ruled.

The holding, according to Tolchin, means that foreigners with a cause of action under the laws of the nation in which they were injured can assert those claims in New York state court. (Assuming, of course, that they can survive forum non conveniens defenses, which the Appellate Division rejected in the Bank of China case.) “That’s very significant,” Tolchin said. “The court got it right. To say (as the 2nd Circuit did) that New York has a greater interest in bank regulation than a country does when its citizens are getting blown up and killed was ill-placed.” Tolchin’s motion for reconsideration in the Amex case is pending at the 2nd Circuit; he said he intends to alert the federal appeals court about the state appellate court’s holding.

Bank of China counsel Mitchell Berger of Patton Boggs told my Reuters colleague Joseph Ax that his client is reviewing the decision.

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