The United States District Court for the Southern District of New York decided on Thursday, Nov. 20 to deny a summary judgment motion from the Palestine Liberation Organization (PLO) and the Palestinian Authority (P.A.), the defendants in Mark I. Sokolow, et al., v. The Palestine Liberation Organization, The Palestinian Authority. Now, the case, which could set future precedent for whether the P.A. could be held liable for the terrorist attacks and require it to compensate victims, will go forward to a jury.
The plaintiffs include 11 American victims or families of victims affected by separate Palestinian terrorist attacks in Israel during the al-Aqsa Intifada which lasted from 2001 to 2004. They are represented by Kent Yalowitz of the law firm Arnold & Porter and Nitsana Darshan-Leitner, chairperson of the Tel Aviv-based Shurat HaDin, who presented evidence that these attacks were the direct results of material and moral support to terrorists by the
P.A. and PLO.
According to a press release, the plainiffs, who are suing under the U.S. Anti-Terrorism Act, are seeking $1 billion in damages.
Although the denial of the motion requested by the P.A. and PLO is a victory for the plaintiffs, according to some experts, it doesn’t yet mean that the trial will now proceed in January as planned.
“It is a preliminary skirmish. It means that the P.A.’s motion to end the case is denied because there are factual disputes that have to be aired at trial for the jury to hear,” said attorney Ken Feinberg, who was appointed by former Attorney General John Ashcroft to serve as Special Master of the September 11th Victim Compensation Fund. “All that the denial of the motion for summary judgment means is that there are factual issues, there may be legal issues as well, but there are factual issues – disagreements over what happened, where, when, why – that have to be resolved at trial and cannot be resolved on a preliminary motion.”
According to another attorney who asked to remain anonymous, as he has pending cases on similar subjects, the P.A. has recently started actively fighting every legal challenge brought against it – which often means the use of delaying tactics. The attorney added that he wouldn’t be surprised if the defense in Sokolow filed a motion for “interlocutory appeal” before the upcoming trial, which could delay the trial for up to a year and a half.
“Now let’s say they let the case go to trial and [the defendants] lose. I guarantee you they will take an appeal! That’s easy. You can bank on that,” the attorney said.
At issue in such cases, according to the attorney, is a question of “minimum contact” needed for a U.S. court to have jurisdiction to hear cases against a foreign entity – how much presence the P.A./ PLO must be found to have in the United States before it can be taken to court inside the United States.
According to the attorney, current precedent is not strong enough to predict the outcome of Sokolow, no matter how strong their case may be and despite the recent victory – pointing out that so far, a district judge’s decision against the P.A.’s motion is just “a drop in the bucket.”
“There’s going to be a lot of litigation going on about the ability to drag foreign defendants before the courts of the United States based upon modest contacts with this country, and we’ll find out what the limits are,” said the attorney. “The courts always struggle with the constitutional limits of their jurisdiction, and that’s what’s going on here and you’re talking constitutional law. It’s all touchy-feely stuff. Nobody really knows the answer to those questions, and there are cases that try and explain this stuff.”
Although courts have dealt with minimum-contact cases in the United States for hundreds of years, 21st-century globalization has added to the complexity of minimum-contact questions and has required additional legal tests to be developed. Yet, despite two recent cases, Goodyear Dunlop Tires Operations v. Brown and Daimler AG v. Bauman, decisions are still largely based on the individual judge’s jurisprudential philosophy.
In this case, however, even if the P.A. and PLO are liable, collecting on a judgment is another headache.
Because it’s unlikely that the P.A. has $1 billion in assets within United States’ jurisdiction – which could easily be subjected to seizure under a final verdict – the plaintiffs would be required to start a lengthy process of locating the P.A.’s assets across the world, and applying to courts within those various countries, pleading for them to recognize, or “domesticate,” their judgment.
“It is very murky. For a guy who doesn’t do this full time, for a general practitioner, were he to try and win one of these cases it’s [nearly] impossible,” said Washington, D.C.-based attorney Steven Perles, who specializes in lawsuits against foreign nations and institutions. “The institutional knowledge, the amount of law that you have to know in a very specialized discipline is so massive and so hard to acquire that even a well-intended guy is going to freeze to death. It’s like trying to run up Mount Everest in a pair of track shoes. I think of it as rather ill-advised.
“As a practical matter, there are not judgment-enforcement treaties” although there are a few, specifically between the Americas, “it’s all done by reciprocity. And the question is whether foreign countries will allow plaintiffs to go in and domesticate. Think of a domestication as an adoption. What you need to do is to get a foreign court to agree to adopt your judgment and then you go out and enforce it under the rules of that country.”
In the case of the Palestinian Authority – whose finances depend a great deal on congressional legislation providing it with aid – some of what is collected might come from the state of Israel, which collects taxes from the West Bank to provide Palestinian residents there with infrastructure such as water and energy, according to a former Barack Obama administration attorney who asked not to be named on the record as the attorney also has similar cases pending.
A number of terrorism-funding lawsuits have come to trial in the last three decades with varying degrees of success. According to the Anti-Terrorism Act, it is illegal for a state, corporation or bank to willingly provide funding to organizations listed by the State Department as terrorist groups.
Yet, in some instances, when a sovereign nation such as Saudi Arabia has been found liable for sponsoring terrorism, the defendants claim protection under the Foreign Sovereign Immunities Act of 1976 (FSIA), which provides immunity to sovereign nations and its officials, when their actions come on behalf of the state.
But if the sovereign nation is listed as an official state sponsor of terrorism, they lose FSIA protection. Notably, Perles has won and collected on terrorism-sponsoring judgments from Iran and Syria – both of which are not protected by FSIA.
Because the P.A. is not a state, they do not receive FSIA protection, but according to the former administration attorney, there are “some jurisdictions that don’t agree with [U.S. policy toward Palestinian statehood]” that could “affect the collectability of a judgment in those jurisdictions,”depending on whether or not the P.A. receives sovereign-like immunity in that jurisdiction.
“If you take that verdict and go to a foreign country and try to enforce it, the foreign court may say ‘go jump in a lake,’ ” said Feinberg. “Very often, a judgment against a foreign government isn’t worth anything because the foreign government just thumbs its nose at the U.S. courts. Look what’s going on now with Argentina and the bonds where Argentina has been held liable by a federal court, and Argentina says we’re not going to honor the bond contract.”
Another factor that the defense in Sokolow must look out for is possible intervention from the State Department, which could be concerned about the foreign policy ramification of a final judgment in favor of the plaintiffs and can leave the P.A. prone to a flood of lawsuits from victims of terrorism. The attorneys told Washington Jewish Week that they would not be surprised if the defense was already appealing to the State Department for intervention in such lawsuits, claiming that if the P.A. is required to honor such a judgment, it could lead to a financial disaster for the areas they control and a possible humanitarian crisis.
But Perles does not believe that the diplomatic situation in the region is advanced enough that the State Department would find it beneficial to allow the P.A. not to honor potential final judgments. Perles believes that if the P.A. is allowed to ignore final judgment claims, the negative ramifications from unfulfilled judgments in the United States could hamper its ability to remain a viable candidate for statehood.
“There could be lots of adverse financial consequences to the P.A. if these loose ends weren’t taken care of,” said Perles. “The P.A. might say, ‘Well, we want to buy desalinization equipment in the U.S.’ And they couldn’t. Someone with a final judgment would go down and try to interdict that asset and [the State Department] doesn’t want that. If [the State Department] wants some kind of normality in the relationship, it’s got to clean the mess up.”
[email protected] @dmitriyshapiro