The commercial activity portion of OBB v. Sachs should be easy for the Supreme Court to resolve – as long as the Court follows its own precedent.

With respect to the commercial activity exception, OBB v. Sachs is indistinguishable from Saudi Arabia v. Nelson, 507 U.S. 349 (1993).  In the Nelson case, Saudi Arabia recruited Nelson in the United States for employment as a monitoring systems engineer at a hospital in Saudi Arabia.  Id. at 351-52.  After Nelson began his new job in Saudi Arabia and discovered safety defects in the hospital’s oxygen and nitrous oxide lines, he was falsely imprisoned and beaten by agents of the foreign state. Id. at 352.  Upon his return to the United States, Nelson filed suit against Saudi Arabia for a range of intentional torts and for the failure to warn Nelson about the dangers of the employment position.  Id. at 352-53.  Nelson sought to establish jurisdiction under the first clause of the commercial activity exception.  Id. at 354.

In short, Nelson involved a plaintiff who sought to establish jurisdiction over torts occurring overseas under the first clause of the commercial activity exception, on the theory that the action was “based upon” the preceding commercial activity (the recruitment) in the United States.  That is exactly what Sachs is trying to do – she is seeking to establish jurisdiction over alleged tortious conduct occurring overseas under the first clause of the commercial activity exception, based upon the argument that the lawsuit is “based upon” the preceding commercial activity (the ticket sale) in the United States.

The Supreme Court in Nelson rejected the plaintiff’s jurisdictional theory:

In this case, the Nelsons have alleged that petitioners recruited Scott Nelson for work at the hospital, signed an employment contract with him, and subsequently employed him. While these activities led to the conduct that eventually injured the Nelsons, they are not the basis for the Nelsons’ suit. Even taking each of the Nelsons’ allegations about Scott Nelson’s recruitment and employment as true, those facts alone entitle the Nelsons to nothing under their theory of the case. The Nelsons have not, after all, alleged breach of contract, . . . but personal injuries caused by petitioners’ intentional wrongs and by petitioners’ negligent failure to warn Scott Nelson that they might commit those wrongs. Those torts, and not the arguably commercial activities that preceded their commission, form the basis for the Nelsons’ suit.

Nelson, 507 U.S. at 358.  As OBB persuasively argued in its merits brief, this paragraph from Nelson should control the result in Sachs.  It’s an easy call.

There is one additional issue relating to the applicability of Nelson.  With regard to when a lawsuit is “based upon” commercial activity, the parties dispute at some length whether Nelson requires a gravamen approach or an elements approach to a plaintiff’s complaint.  Yet while Nelson contained sloppy language that could be interpreted to support an elements approach (Nelson, 507 U.S. at 357), the Nelson Court clearly used a gravamen approach.  It did not methodically review Nelson’s sixteen causes of action to determine whether some of the claims contained elements that required proof of commercial activity in the United States.  Instead, Nelson used a gravamen analysis, as reflected by its discussion of the failure to warn claim:

In addition to the intentionally tortious conduct, the Nelsons claim a separate basis for recovery in petitioners’ failure to warn Scott Nelson of the hidden dangers associated with his employment. The Nelsons allege that, at the time petitioners recruited Scott Nelson and thereafter, they failed to warn him of the possibility of severe retaliatory action if he attempted to disclose any safety hazards he might discover on the job.  In other words, petitioners bore a duty to warn of their own propensity for tortious conduct. But this is merely a semantic ploy. For aught we can see, a plaintiff could recast virtually any claim of intentional tort committed by sovereign act as a claim of failure to warn, simply by charging the defendant with an obligation to announce its own tortious propensity before indulging it. To give jurisdictional significance to this feint of language would effectively thwart the Act’s manifest purpose to codify the restrictive theory of foreign sovereign immunity.

Nelson, 507 U.S. at 363.  In other words, with regard to Nelson, one should do as the Court did, and not as the Court said.  Its actual holding makes clear that gravamen is the proper method of analysis.  However, the sloppy “elements” language in Nelson has indeed caused confusion in FSIA jurisprudence over the years, and Sachs is the perfect opportunity to clean it up.

There are several final important points with regard to the gravamen issue that neither the parties nor the amici mentions in their briefs – but that the Supreme Court would be well-served to consider.  First, the gravamen approach has a long history under the FTCA.  See, e.g., United States v. Neustadt, 366 U.S. 696 (1961).  Given the general principle that courts should treat foreign sovereigns how the United States government itself is treated in its own courts (see, e.g., Von Mehren, The Foreign Sovereign Immunities Act of 1976, 17 Colum. J. Transnat’l L. 33, 45 (1978)), it makes sense to apply the gravamen rule under the FSIA.  See Nelson, 507 U.S. at 363 (citing United States v. Shearer, 473 U.S. 52, 54-55 (1985), in support of its gravamen approach).

Second, the gravamen analysis has been employed by courts in FSIA cases for thirty years.  See, e.g., De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1398 (5th Cir. 1985); Garb v. Republic of Poland, 440 F.3d 579, 588 (2d Cir. 2006); O’Bryan v. Holy See, 556 F.3d 361, 379-80 (6th Cir. 2009).  It makes little sense to overturn that precedent now, both because the gravamen approach has worked well and because it would create unnecessary confusion in this sensitive area of the law.

Third, an abandonment of the gravamen approach would invite gamesmanship by plaintiffs’ counsel.  To provide an example, I once litigated a personal injury tort case where the plaintiff included a meritless breach of contract cause of action to establish jurisdiction under the commercial activity exception.  There was no colorable breach of contract claim, but the alleged claim could have been enough – in the absence of the gravamen approach – for the court to take jurisdiction and order discovery.  With the gravamen approach, I was able to make a strong argument that the case should be analyzed under the tort exception rather than the commercial activity exception.  That case – and others like it – shows that the gravamen analysis prevents jurisdiction from being based upon clever tactical ploys, and thereby serves to protect the integrity of the FSIA’s jurisdictional provisions.

Despite some sloppy language that can easily be fixed, Nelson was correctly decided.  It has been a bulwark of FSIA jurisprudence for over twenty years.  With regard to the commercial activity issue in OBB v. Sachs, the Supreme Court should simply apply Nelson – and order the dismissal of Sachs’ lawsuit.