Articles Posted in US Court of Appeals for the Second Circuit

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Plaintiffs filed suit alleging that defendants, while located in foreign nations, used the mail or wires to order fraudulent asset transfers from plaintiffs' New York bank accounts to defendants' own accounts. The district court held that all but one of the schemes were impermissibly extraterritorial under either civil RICO, 18 U.S.C. 1964(c), or the mail, wire, and bank fraud statutes plaintiffs cited as predicates to the civil RICO cause of action. The district court found the remaining scheme, standing alone, did not constitute a pattern of racketeering activity under RICO. At issue was whether the conduct violating the predicate statutes was extraterritorial, the application of civil RICO to plaintiff's alleged injuries was extraterritorial, and whether the surviving schemes amounted to a pattern of racketeering activity. The Second Circuit held that each of the schemes to defraud, except for the Sham Management Fees Scheme, calls for domestic applications of 18 U.S.C. 1962(c), 1962(d), 1341, 1343, and 1344(2). The court also held that the district court abused its discretion by dismissing the state law claims for lack of supplemental jurisdiction. Therefore, the court reversed and remanded for further proceedings. View "Bascuñán v. Elsaca" on Justia Law

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After Congress enacted the Anti-Terrorism Clarification Act (ATCA), plaintiffs moved the DC Circuit to recall the mandate issued after the court's decision holding that the federal courts lacked personal jurisdiction over the Palestine Liberation Organization and the Palestinian Authority (defendants). The court denied plaintiffs' motion and held that plaintiffs failed to show circumstances that warrant the extraordinary remedy of recalling the mandate. The court considered all of the arguments and, to the extent not specifically addressed, they were either moot or without merit. View "Sokolow v. Palestine Liberation Organization" on Justia Law

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Plaintiffs filed suit under New York tort law, alleging that defendants conspired with and aided and abetted the Sudanese regime in its commission of widespread atrocities. The Second Circuit reversed the district court's dismissal of the complaint under Civil Rule of Procedure 12 (b)(6), holding that the district court misapplied the act of state doctrine and erroneously determined that the adult plaintiffs' claims were untimely. In this case, considering the lack of evidence introduced by defendants that genocide is the official policy of Sudan, and the countervailing evidence that genocide blatantly violates Sudan's own laws, the court held that there was simply no "official act" that a court would be required to "declare invalid" in order to adjudicate plaintiffs' claims. Furthermore, the court held that the atrocities to which defendant asked the court to defer can never be the basis of a rule of decision capable of triggering the act of state doctrine, because circuit precedent prohibits the court from deeming valid violations of non-derogable jus cogens norms irrespective of the consent or practice of a given state. The court also held that plaintiffs' claims under the act of state doctrine were timely. Accordingly, the court reversed and remanded for further proceedings. View "Kashef v. BNP Paribas S.A." on Justia Law

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The Second Circuit affirmed the district court's dismissal of plaintiffs' amended complaint in part for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and in part for failure to state a claim under Rule 12(b)(6). Plaintiffs' claims arose from their dissatisfaction with the outcome of divorce proceedings in Israel and subsequent efforts by their ex‐wives, with the assistance of the charitable organizations, to collect child support from them. The court held that the district court properly dismissed all claims against the Israeli Officials for lack of subject matter jurisdiction because, as foreign government officials acting in their official capacity, they were entitled to immunity. With respect to the remaining defendants, plaintiffs failed to satisfy the domestic injury requirement of the Racketeer Influenced and Corrupt Organizations Act. The court also held that the district court did not abuse its discretion in barring Plaintiffs Eliahu and Weisskopf from filing future related actions against defendants without its permission. In this case, the court considered the anti-filing injunction factors such as Eliahu and Weisskopf's history of vexatious litigation, their improper motives for pursuing the litigation, and the expense to defendants and burden on the courts. Furthermore, the court saw no reason to grant Eliahu and Weisskopf the latitude usually granted to pro se litigants, and concluded that other sanctions against them would be inadequate. View "Eliahu v. Jewish Agency for Israel" on Justia Law

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The Second Circuit affirmed the district court's grant of a permanent injunction enjoining the government from continuing to apply the requirement that government funds assisting plaintiffs' efforts to fight HIV/AIDS abroad could not be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking. In Agency for Int'l Dev. v. Alliance for Open Soc. Int'l, Inc., 570 U.S. 205 (2013), the Supreme Court concluded that the requirement compelled speech in violation of the First Amendment. Applying the Supreme Court's reasoning in AOSI to this case, the court held that the speech of a recipient who rejects the government's message was unconstitutionally restricted when it has an affiliate who is forced to speak the government's contrasting message. The court rejected the remaining claims and held that the district court did not abuse its discretion. View "Alliance for Open Society International v. United States Agency for International Development" on Justia Law

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Miller and Jenkins entered into a civil union in Vermont in 2000. In 2002, Miller gave birth to IMJ. Miller took IMJ to Virginia. Jenkins remained in Vermont. In 2003, a Vermont court dissolved the union and awarded custody to Miller. Miller repeatedly refused to respect Jenkins’ visitation rights. Following several contempt citations, the Vermont court awarded sole custody to Jenkins in 2009. While the litigation was pending, Miller kidnapped IMJ, fleeing to Nicaragua. The government issued subpoenas under the Stored Communications Act 18 U.S.C. 2703(c)(2), rather than a court‐approved warrant, to a cell phone company, seeking billing records spanning 28 months and other information. As confirmed by Zodhiates’ cell phone and email records, which were introduced at trial, Zodhiates drove Miller and IMJ from Virginia to Buffalo, where they crossed into Ontario. Miller remains a fugitive. Zodhiates coordinated delivery of Miller's personal items to Nicaragua. Zodhiates was convicted of conspiring with and aiding and abetting Miller to obstruct the lawful exercise of parental rights, International Parental Kidnapping Crime Act, 18 U.S.C. 371, 1204, and 2. The district court declined to suppress inculpatory location information garnered from his cell phone records. The Second Circuit affirmed, rejecting arguments under the Fourth Amendment and that the charge to the jury, referring to Vermont family law, denied Zodhiates a fair trial. The court noted that in 2011 a warrant was not required for cell records so the government acted in good faith. View "United States v. Zodhiates" on Justia Law

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The Second Circuit reversed a petition seeking leave to subpoena the defendant law firm, Shell's United States counsel, for documents belonging to a foreign company, Royal Dutch Shell. The court held that it was an abuse of discretion for a district court to grant a 28 U.S.C. 1782 petition where the documents sought from a foreign company's U.S. counsel would be unreachable in a foreign country. The court cautioned in Application of Sarrio, S.A., 119 F.3d 143 (2d Cir. 1997), that an order compelling American counsel to deliver documents that would not be discoverable abroad, and that are in counsel's hands solely because they were sent to the United States for the purpose of American litigation, as in this case, would jeopardize the policy of promoting open communications between lawyers and their clients. View "Kiobel v. Cravath, Swain & Moore, LLP" on Justia Law

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The Second Circuit affirmed in part and reversed in part the district court's denial of defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on grounds of foreign sovereign immunity and Federal Rule of Civil Procedure 12(b)(6) pursuant to the act of state doctrine. The court held that it had subject matter jurisdiction over the case under the Foreign Sovereign Immunities Act (FSIA) where Argentina asserted control over its stake in YPF via expropriation; Argentina incurred a separate commercial obligation under the bylaws to make a tender offer for the remainder of YPFʹs outstanding shares; and Peterson claimed it was injured by repudiation of that commercial obligation. Therefore, the repudiation was an act separate and apart from Argentinaʹs expropriation of Repsolʹs shares, and Peterson's action against Argentina fell within the direct-effects clause of the FSIA. Petersenʹs claims against YPF also fell within the direct‐effect clause of the FSIAʹs commercial activity exception. The court declined to reach the portion of this appeal challenging the district court's ruling on defendants' act of state defense. View "Petersen Energia Inversora, SAU v. Argentine Republic" on Justia Law

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The Second Circuit vacated the district court's judgment entered in the stipulated total amount of $100,000,000 following a jury verdict holding that the bank was liable under the Antiterrorism Act (ATA), 18 U.S.C. 2333, for injuries sustained by plaintiffs or their relatives during terrorist attacks in Israel conducted by Hamas. The court held that the jury was not properly instructed on the "international terrorism" element of the ATA. Accordingly, the court vacated and remanded. The court noted that its determination makes it unnecessary for it to decide whether any of the bank's other challenges warrant such relief because the parties have entered into a settlement agreement that forgoes retrial on vacatur and remand in lieu of a specified total money payment to the bellwether plaintiffs. View "Linde v. Arab Bank, PLC" on Justia Law

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The Second Circuit affirmed the district court's dismissal of a petition pursuant to the Hague Convention on the Civil Aspects of International Child Abduction seeking the return of three children from New York to Thailand. The court held that the Convention does not enter into force until a ratifying state accepts an acceding state's accession and that Article 35 limits the Convention's application to removals and retentions taking place after the Convention has entered into force between the two states involved. Therefore, because the Convention did not enter into force between the United States and Thailand until April 1, 2016, after the allegedly wrongful retention of the children in New York on October 7, 2015, the Convention does not apply to petitioner's claim and the district court did not err in dismissing his petition. View "Marks v. Hochhauser" on Justia Law