The D.C. Circuit’s Recent Decision Reinforces the Urgent Need for a Cyberattack Exception to the FSIA

On March 14, 2017, the D.C. Circuit affirmed the district court’s dismissal of a lawsuit against Ethiopia that arose out of an alleged hacking of a computer in the United States.  See Doe v. The Federal Democratic Republic of Ethiopia, — F.3d —, 2017 WL 971831 (D.C. Cir., Mar. 14, 2017, No. 16-7081). You can read the opinion here

The D.C. Circuit’s opinion makes it clear that the FSIA’s tort exception is wholly inadequate as a means to assert jurisdiction over a foreign state in a cyberattack case.  As the D.C. Circuit correctly held, the tort exception is inapplicable in such cases because of the situs requirement: “The tort [the plaintiff] alleges . . . did not occur entirely in the United States; it is a transnational tort over which we lack subject matter jurisdiction.”  Doe, 2017 WL 971831, at *3, citations, quotations and brackets omitted. The D.C. Circuit stated that Congress’s “primary purpose in enacting § 1605(a)(5) was to eliminate a foreign state’s immunity for traffic accidents and other torts committed in the United States,” and that “[i]t is thus unsurprising that transnational cyberespionage should lie beyond section 1605(a)(5)’s reach.”  Ibid., citation and quotations omitted.

The D.C. Circuit’s holding – that the tort exception’s situs requirement bars a claim arising out of a cyberattack originating overseas – corresponds exactly with the point that I made in my prior post. It is the reason why commentators who argue that the tort exception is sufficient to address the growing cyberattack problem are simply wrong.

Sovereign immunity was born centuries ago, and it underwent an important evolution in the 20th century to reflect a changing world. The FSIA now needs to catch up to the modern realities of the Internet Age. Given the prevalence of computer hacking by foreign states, and the resulting harm to American individuals and companies, a new cyberattack exception to the FSIA is urgently needed. However, as I previously explained, such an exception will only work if it has teeth – such as, for example, the ability to collect on judgments against foreign states from the state’s instrumentalities and agencies, even if such entities were not involved in the cyberattack at issue.  Cf. 28 U.S.C. § 1610(g)(1)(A)-(E). Otherwise, a new exception will do little to stem the rising tide of cyberattacks by foreign sovereigns in the United States.

Sachs’s Meritless Commercial Activity Argument

Last week, I examined the problems with the main attribution argument advanced by OBB in the Supreme Court.  Now it is time to analyze the merits of one of the central commercial activity arguments proffered by Sachs. 

The first clause of the commercial activity exception requires that a plaintiff’s action be “based upon a commercial activity carried on in the United States by the foreign state.”  28 U.S.C. § 1605(a)(2).  As a result, to establish jurisdiction under section 1605(a)(2)’s first clause, Sachs must show that her action – which arises from a railway accident in Innsbruck, Austria – is based upon a commercial activity carried on in the United States by OBB.

In her merits brief, Sachs argues that her claims are based upon “OBB’s overall commercial railway enterprise.”  There are three problems with Sachs’s argument.

First, Sachs did not advance the argument below.  It may be that Sachs can avoid a claim of waiver because the issue relates to subject matter jurisdiction (cf. Fed. R. Civ. P. 12(h)(3)), but the fact that Sachs did not raise the argument before her merits brief in the Supreme Court does not inspire confidence.  Like OBB’s novel (and unsupported) agency argument, this was probably an idea that would have been best left on the cutting room floor.

Second, Sachs’s claim ignores a host of FSIA cases (which are also not cited in OBB’s reply on the merits).  Under established law, a plaintiff cannot rely on a sovereign’s alleged general commercial activities under the commercial activity exception.  As courts have repeatedly held for over thirty-five years, it is not the sovereign’s general commercial activities that matter for purposes of the exception:

The focus of the exception to immunity recognized in § 1605(a)(2) is not on whether the defendant generally engages in a commercial enterprise or activity. . . ; rather, it is on whether the particular conduct giving rise to the claim in question actually constitutes or is in connection with commercial activity, regardless of the defendant’s generally commercial or governmental character.

Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1379 (5th Cir. 1980); see also, e.g., Rush-Presbyterian-St. Luke’s Med. Ctr. v. Hellenic Republic, 877 F.2d 574, 580 n.8 (7th Cir. 1989) (same); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1030 (D.C. Cir. 1997) (stating that the plaintiffs “confuse general activity related to the claim with the specific activity upon which the claim is based”); cf. Sun v. Taiwan, 201 F.3d 1105, 1109 (9th Cir. 2000) (holding that the “focus must be solely upon those specific acts that form the basis of the suit”).  In other words, if the Supreme Court accepts Sachs’s argument, it would be overturning decades of FSIA precedent.  The Court would also be swinging the gates wide open to jurisdiction under the first clause of the commercial activity exception, since plaintiffs’ lawyers can almost always conjure an underlying general commercial activity that can serve as a “basis” for their suits.

Finally, Sachs’s argument lacks merit because OBB “carries on” its “overall commercial railway enterprise” in Austria – and not, as the first clause of the commercial activity exception requires, “in the United States.”  28 U.S.C. § 1605(a)(2).  I understand that Sachs relies on section 1603(e), which defines a “commercial activity carried on in the United States by a foreign state” to mean “commercial activity carried on by such state and having substantial contact with the United States.”  28 U.S.C. § 1605(e).  However, Sachs cannot have it both ways.  If the commercial activity is deemed to be the ticket sale by the travel agency in Massachusetts (and that sale is attributable to OBB), then it may be true that the sale constitutes commercial activity carried on in the United States by OBB.  See Sachs v. Republic of Austria, 737 F.3d 584, 598-99 (9th Cir. 2013) (en banc).  Yet, for reasons I will explain in a subsequent post, Sachs’s lawsuit is not based upon the ticket sale.  And even if a plaintiff were not precluded under FSIA precedent from relying on a foreign state’s general commercial activity, OBB’s operation of its “overall commercial railway enterprise” is carried on in Austria; OBB is Austria’s national railroad company, and it appears undisputed that OBB does not have offices, employees or bank accounts in the United States. 

On its face, this analysis may seem hyper-technical and unfair to Sachs.  The opposite is true.  It is Sachs who is trying to fit a square peg into a round hole.  Sachs’s claims, after all, arise from an alleged tortious act or omission occurring in Austria in connection with a commercial activity overseas.  Sachs should therefore be asserting jurisdiction under the third clause of the commercial activity exception.  Cf. 28 U.S.C. § 1605(a)(2) (third clause stating that a foreign state is not immune in any case based “upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States”).  Sachs is not doing so, presumably because she cannot demonstrate the requisite “direct effect in the United States” under existing law.  Seee.g.Zernicek v. Brown & Root, Inc., 826 F.2d 415, 418 (5th Cir.1987) (“consequential damages [from personal injury tort abroad] are insufficient to constitute a ‘direct effect in the United States’ for purposes of abrogating sovereign immunity”).  Sachs also cannot assert jurisdiction under the FSIA’s tort exception for her slip-and-fall case, because the alleged tortious conduct occurred overseas.  See  Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441 (1989) (stating that the FSIA’s tort exception, 28 U.S.C. § 1605(a)(5), “covers only torts occurring within the territorial jurisdiction of the United States”).  As a result, to get around the requirements of the FSIA’s other (and more applicable) exceptions to sovereign immunity, Sachs is forced to proceed under the first clause of the commercial activity exception.  However, reliance on that clause does not work — at least not if Sachs’ argument is based on OBB’s general commercial activity of operating a national railway in Austria.

In the end, because she cannot rely on OBB’s general commercial activity in Austria, Sachs is stuck with arguing that her personal injury action is “based upon” the ticket sale in the United States.  As I will explain in subsequent posts, that should spell the end of Sachs’s lawsuit under existing Supreme Court precedent.

[Next week, I will examine why the Supreme Court’s decision in Saudi Arabia v. Nelson, 507 U.S. 349 (1993), should control the result in OBB v. Sachs.]

The Tort Exception’s Situs Requirement

The FSIA’s tort exception requires an action “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States . . . .”  28 U.S.C. § 1605(a)(5).  As exemplified by a recent decision from the United States District Court for the District of Puerto Rico, courts have long held that jurisdiction lies under the tort exception only if the entire tort occurred within the United States.  See Fernandez v. Spain, CIV. 13-1911 PG, 2014 WL 1807069, at *2 (D.P.R. May 7, 2014); see also, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 441 (1989); In re Terrorist Attacks on September 11, 2001, 714 F.3d 109, 116 (2d Cir. 2013); O’Bryan v. Holy See, 556 F.3d 361, 382 (6th Cir. 2009); Cabiri v. Gov’t of Republic of Ghana, 165 F.3d 193, 200 n.3 (2d Cir. 1999); Wolf v. Fed. Republic of Germany,95 F.3d 536, 542 (7th Cir. 1996); Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1065 (5th Cir. 1992); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1524-25 (D.C. Cir. 1984); Abrams v. Societe Nationale des Chemins de Fer Francais, 175 F. Supp. 2d 423, 431 (E.D.N.Y. 2001), vacated on other grounds by 332 F.3d 173 (2d Cir. 2003), cert. granted and vacated, 542 U.S. 901 (2004), aff’d 389 F.3d 61 (2d Cir. 2004); Sampson v. Fed. Republic of Germany, 975 F. Supp. 1108, 1118 (N.D. Ill. 1997); S. Seafood Co. v. Holt Cargo Sys., Inc., No. Civ.A.96-5217, 1997 WL 539763, at *7 (E.D. Pa. Aug. 11, 1997); Cabiri v. Gov’t of Republic of Ghana, 981 F. Supp. 129, 132 (E.D.N.Y. 1997), aff’d in part and rev’d on other grounds in 165 F.3d 193 (2d Cir. 1999); Hirsh v. State of Israel, 962 F. Supp. 377, 383-84 (S.D.N.Y. 1997); Rein v. Rein, No. 95 Civ. 4030 (SHS), 1996 WL 273993, at *3 (S.D.N.Y. May 23, 1996); Coleman v. Alcolac, Inc., 888 F. Supp. 1388, 1403 (S.D. Tex. 1995); Smith v. Socialist People’s Libyan Arab Jamahiriya, 886 F. Supp. 306, 313 (E.D.N.Y. 1995); El-Fadl v. Cent. Bank of Jordan, No. Civ.A. 93-1895 RMU, 1994 WL 1656111, at *4 (D.D.C. Nov. 9, 1994); Velasquez v. Gen. Consulate of Mexico, No. C-92-3745 CFL, 1993 WL 69493, at *3 (N.D. Cal. Mar. 4, 1993); Intercont’l Dictionary Series v. De Gruyter, 822 F. Supp. 662, 677 (C.D. Cal. 1993), disapproved on other grounds in Sun v. Taiwan, 201 F.3d 110 (9th Cir. 2000); Denegri v. Republic of Chile, Civ. A. No. 86-3085, 1992 WL 91914, at *2 (D.D.C. Apr. 6, 1992); Antares Aircraft L.P. v. Fed. Republic of Nigeria, No. 89 Civ. 6513(JSM), 1991 WL 29287, at *4 (S.D.N.Y. Mar. 1, 1991); Polanco v. Dominican Republic, No. 90 Civ. 7089 (WK),1991 WL 146306, at *2 (S.D.N.Y. July 22, 1991); Fickling v. Commw. of Australia, 775 F. Supp. 66, 72 (E.D.N.Y. 1991); Von Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1, 7-8 (D.D.C. 1990); Goquiolay v. Philippines Nat’l Bank, No. 90 CIV. 893 (CSH), 1990 WL 144118, at *3 (S.D.N.Y. Sept. 28, 1990); Bennett v. Stephens, CIV. A. No. 88-2610 (RCL), 1989 WL 17751, at *4 (D.D.C. Feb. 23, 1989); Kline v. Kaneko, 685 F. Supp. 386, 391 (S.D.N.Y. 1988); Four Corners Helicopters, Inc. v. Turbomeca S.A., 677 F. Supp. 1096, 1102 (D. Colo. 1988); English v. Thorne, 676 F. Supp. 761, 764 (S.D. Miss. 1987); Ledgerwood v. State of Iran, 617 F. Supp. 311, 314 (D.D.C. 1985); Kline v. Republic of El Salvador, 603 F. Supp. 1313, 1315-16 (D.D.C. 1985); Evans v. Petroleo, Civil Action No. H-83-91, 1984 WL 1887, at *1 (S.D. Tex. Aug. 2, 1984); In re Sedco, Inc., 543 F. Supp. 561, 567 (S.D. Tex. 1982); cf. H.R. Rep. No. 1487, at 21 (1976).

The tort exception’s situs requirement is a critical limitation on jurisdiction over foreign torts under the FSIA.  In light of the recognized importance of such limitations in international law (cf. Kiobel v. Royal Dutch Petroleum Co., — U.S. —, 133 S. Ct. 1659, 1669 (2013)), it should continue to be strongly enforced by courts in the United States.

Applicable Law and the FSIA Jurisdictional Inquiry: A Warning

In its latest FSIA decision, the Second Circuit stated the following regarding choice-of-law issues in cases involving foreign sovereigns:

Congress did not intend that the FSIA establish substantive rules of liability. See Barkanic, 923 F.2d at 960. The FSIA operates as a pass-through, granting federal courts jurisdiction over otherwise ordinary actions brought against foreign states. . . . Because the FSIA creates federal question jurisdiction but does not supply any substantive law of liability, . . . choice of law problems arise in the FSIA context. The FSIA contains no express choice of law provision, but Section 1606 provides that a foreign sovereign “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606. In Barkanic, we found that the goal of like-treatment is best served by applying the state choice of law rules if the action is governed by state substantive law. Barkanic, 923 F.2d at 959.

Bank of New York v. Yugoimport, — F.3d —, 2014 WL 503039 (2d Cir. Feb. 10, 2014) (citations and quotations omitted). 

To the unwary FSIA practitioner, the language of Yugoimport appears to provide an easy formula: section 1606 states that a foreign sovereign shall be liable “in the same manner and to the same extent as a private individual under like circumstances,” and therefore state substantive law – including state choice-of-law rules – applies under the FSIA.  

Not so fast.

Other commentators have discussed choice-of-law issues under the FSIA at length.  See, e.g., Joseph W. Dellapenna, Suing Foreign Governments and Their Corporations, at 469-557 (2d ed. 2003); Joel Mendal Overton, II, Will the Real FSIA Choice-of-Law Rule Please Stand Up?, 49 Wash. & Lee L. Rev. 1591 (1992).  I will not do so here.  But I want to highlight two important points.

First, section 1606 only applies once jurisdiction has been established.  See 28 U.S.C. 1606 (“As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances”) (emphasis added); Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89 (1983) (quoting 28 U.S.C. 1606) (“When one of these or the other specified exceptions applies, ‘the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances’”) (emphasis added); Price v. Socialist People’s Libyan Arab Jamahiriya, 384 F. Supp. 2d 120, 132 (D.D.C. 2005) (quoting 28 U.S.C. 1606) (“Once a foreign state’s immunity has been lifted under section 1605 and jurisdiction is proper, section 1606 provides that ‘the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.’”) (emphasis added); see also H.R. Rep. No. 94-1487, at 22 (“Section 1606 makes clear that if the foreign state . . . is not entitled to immunity from jurisdiction, liability exists as it would for a private party under like circumstances”) (emphasis added).  Indeed, the Second Circuit itself appears to recognize that limitation.  See Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 313 F.3d 70, 85 (2d Cir. 2002) (stating that “in Barkanic, we explained that in FSIA cases, we use the forum state’s choice of law rules to resolve ‘all issues,’ except jurisdictional ones”) (italics in original) (underline added).  As a result, it would be a mistake to rely on section 1606 to determine the law applicable to a jurisdictional inquiry under section 1605.

Second, there are powerful reasons why state law may be inappropriate to apply to a jurisdictional inquiry under the FSIA.  Consider, for example, the issue of whether an individual who commits a tort in the United States qualifies as a foreign state “official” under section 1605(a)(5).  Since a sovereign should be entitled to determine who qualifies as an official of its own government (cf. Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)), the law of the foreign state – and not the law of a particular state in the United States – should apply to that inquiry.

Similarly, while courts have applied state law to determine who qualifies as an “employee” of a foreign state under section 1605(a)(5) (see, e.g., Randolph v. Budget Rent-A-Car, 97 F.3d 319, 325 (9th Cir. 1996)), there are good reasons to conclude that such issues should “not be left to divergent and perhaps parochial state interpretations.”  First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 622 n.11 (1983) (citations and quotations omitted).  The Supreme Court has repeatedly held that “when Congress has used the term ‘employee’ without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.”  Clackamas Gastroent. Assocs. v. Wells, 538 U.S. 440, 445 (2003); see also, e.g., Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992) (same); Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 n.3 (9th Cir. 1999) (stating that Darden’s holding that the term “employee” was “subject to an analysis of common law agency principles . . . . applies to statutes that contain the term ‘employee’ and do not otherwise define the term”).  This rule “reflects the fact that federal statutes are generally intended to have uniform nationwide application.”  Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 741 (1989).  Given that uniformity is a core principle underlying the FSIA (Verlinden, 461 U.S. at 489), it is unclear why the undefined term “employee” in section 1605(a)(5) should be governed by the law of a particular state rather than the general common law of agency.

Choice-of-law issues under the FSIA are complex and often neglected.  Given the complicated nature of the inquiry, both courts and practitioners should be cautious not to adopt over-simplistic tests to determine the applicable law, particularly with respect to jurisdictional inquiries under section 1605. 

Litigation Comment: Richardson v. Attorney General of the British Virgin Islands

Another blog devoted to issues relating to foreign sovereigns in United States courts recently mentioned the case Richardson v. Attorney General of the British Virgin Islands, Civil No. 2008-144, 2013 WL 4494975 (D.V.I. Aug. 20, 2013).  See  Although Richardson is unusual because the foreign sovereign is appearing pro se, the case is indeed interesting for a number of reasons:

Capacity: Richardson addresses the circumstances under which a lawsuit against a foreign sovereign official should be deemed a lawsuit against the foreign sovereign itself.  Richardson, 2013 WL 4494975, at *2.  The official capacity issue frequently arises with respect to domestic government officials.   Cf. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.  It is not a suit against the official personally, for the real party in interest is the entity”).  In Samantar, the Supreme Court recognized that it was an issue under the FSIA as well: “it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest.”  Samantar v. Yousuf, 560 U.S. 305, 325 (2010), citing Graham, 473 U.S. at 166.  It is an issue that should be kept in mind whenever an attorney confronts a case against a foreign sovereign official.

Waiver: The Richardson court correctly held that a foreign state does not waive immunity simply by failing to appear in the matter.  Richardson, 2013 WL 4494975, at *4.  However, the court also accurately stated that a foreign state does waive immunity if it fails to assert immunity in a responsive pleading – which, according to a docket check, is what the pro se foreign sovereign defendant may just have done in a recent filing.  Id.  Richardson highlights that a foreign sovereign can actually increase the risk of waiver by appearing in the action, particularly if defense counsel is not familiar with the FSIA’s waiver rules.

Commercial Activity: In analyzing whether the plaintiff’s claims involved commercial activity, the Richardson court examined whether the conduct was “of a nature that a private person would undertake for profit.”  Richardson, 2013 WL 4494975, at *4.  The “for profit” test is controversial, particularly given the nature/purpose language in 28 U.S.C. section 1603(d).  However, there is a strong argument that whether or not an activity is the type customarily undertaken for profit is an appropriate factor to consider, and I address that issue here.

Scope of Employment/Respondeat Superior: The Richardson court quotes the Fifth Circuit’s decision in Moran for the following proposition relating to the tort exception’s “scope of employment” requirement: “‘[T]he scope of employment provision of the tortious activity exception requires a finding that the doctrine of respondeat superior applies to the tortious act or omission committed by the officer or employee of the foreign state.’”  Richardson, 2013 WL 4494975, at *5, quoting Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 173 (5th Cir. 1994).  This again is an issue for a future post, but courts and attorneys in FSIA cases should be careful not to equate the tort exception’s “scope of employment” requirement with a respondeat superior analysis.  Under most circumstances the two are identical, but in certain situations there is a big difference.  Cf. Primeaux v. United States, 181 F.3d 876 (8th Cir. 1999) (en banc).

Political Subdivision: Richardson determined that BVI was a political subdivision of the United Kingdom for purposes of the FSIA.  Richardson, 2013 WL 4494975, at *10.  On its face that determination appears correct, but it is worth noting that there are not many cases under the FSIA addressing what is meant by the term “political subdivision.”  Under the right circumstances, the political subdivision issue is one that could involve very interesting litigation.

Strict Compliance: The Richardson court correctly held that a plaintiff must strictly comply with section 1608(a)’s service of process requirements.  See Richardson, 2013 WL 4494975, at *8; see also  However, Richardson is unusual in that the court appeared to hold that the strict compliance standard applied to the requirements of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 658 U.N.T.S. 163 (“Hague Service Convention”).  See Richardson, 2013 WL 4494975, at *13; see also 28 U.S.C. § 1608(a)(2).  There are not many cases under section 1608(a)(2), but applying a strict compliance standard to the Hague Service Convention requirements appears to be a logical extension of FSIA service precedent.

Official Immunity: Official immunity is relatively straightforward when the Executive Branch files a suggestion of immunity.  See, e.g., Rosenberg v. Lashkar-e-Taiba, — F. Supp. 2d — , 2013 WL 5502851 (E.D.N.Y. Sept. 30, 2013).  Richardson provides an example of a court finding a foreign sovereign official immune even in the absence of a suggestion of immunity from the Executive Branch.  Richardson, 2013 WL 4494975, at *16; see also Samantar, 560 U.S. at 311 (discussing that, under the common law, a district court “had authority to decide for itself whether all the requisites for such immunity existed” in the “absence of recognition of the immunity by the Department of State”) (citations and internal quotations omitted).  A court determination of official immunity can be a useful tool for FSIA defense counsel in cases against officials or in situations where discovery is sought from foreign sovereign officials.

Litigation Comment: The FSIA’s Misrepresentation Exclusion

In a recent decision, the United States District Court for the Southern District of New York held that a claim for fraudulent conveyance met the requirements of the FSIA’s tort exception, 28 U.S.C. section 1605(a)(5).  See Peterson v. Islamic Republic of Iran, 10 CIV. 4518 KBF, 2013 WL 5538652, at *3 (S.D.N.Y. Oct. 8, 2013).  The ruling highlights the need for courts to consider the tort exception’s misrepresentation exclusion, 28 U.S.C. section 1605(a)(5)(B), with respect to any alleged claim arguably arising out of misrepresentation or deceit.

There is not much FSIA case law relating to the misrepresentation exclusion.  However, there is a great deal of authority under the Federal Tort Claims Act’s misrepresentation exclusion, 28 U.S.C. section 2680(h).  Since the FSIA’s misrepresentation exclusion was based upon section 2680(h), De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1398 (5th Cir. 1985), defense counsel in FSIA cases must be familiar with the relevant FTCA precedent.

Although the case law cannot be adequately summarized here, there are several key issues to keep in mind:

•          The exclusion for actions based on misrepresentation or deceit “is broadly construed.”  Maryland Cas. Co. v. United States, No. C 05-02558 JSW, 2006 WL 563046, at *9 (N.D. Cal. Mar. 6, 2006).

•          The misrepresentation exclusion “encompasses claims arising out of negligent, as well as willful, misrepresentation.”  Janowsky v. United States, 913 F.2d 393, 396 (7th Cir. 1990).

•           The exclusion “bars not only claims of negligence in the misrepresentation, but in the conduct underlying the misrepresentation.”  Dorking Genetics v. United States, 76 F.3d 1261, 1264 (2d Cir. 1996).

•          The exclusion applies irrespective of whether the allegations are based upon affirmative misrepresentations or omissions.  JBP Acquisitions LP v. United States ex rel. FDIC, 224 F.3d 1260, 1266 (11th Cir. 2000).

•           The term “misrepresentation” is “broad enough to reach all types of claims for misrepresentation, whether those claims seek recovery for commercial injury, physical injury, or emotional injury.”  Najbar v. United States, 723 F. Supp. 2d 1132, 1137 (D. Minn. 2010), aff’d, 649 F.3d 868 (8th Cir. 2011).

•          In determining whether a plaintiff’s claims are barred by the misrepresentation exclusion, courts must look to the “gravamen” of the claim.  Deloria v. Veterans Admin., 927 F.2d 1009, 1012-13 (7th Cir. 1991).

“[T]he essence of an action for misrepresentation, whether negligent or intentional, is the communication of misinformation on which the recipient relies.”  Block v. Neal, 460 U.S. 289, 296 (1983).

It is not clear how the plaintiff’s fraudulent conveyance claim in the Peterson case – which is now on appeal – would fare under this analysis, though at least one court has found such claims to run afoul of the FTCA’s misrepresentation exclusion.  Yagman v. Whittlesey, 2:12-CV-08413-SVW-CW, 2012 WL 5831169, at *3 (C.D. Cal. Nov. 2, 2012).  The Peterson case nevertheless serves as a reminder that the misrepresentation exclusion should be fully litigated in FSIA cases, since it is an area with significant promise for foreign sovereign defendants.