Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 1 of 20
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------------x
`RICHARD O. KLING, M.D., BRENDA
`SUTTON, SHIRLEY MORTON, KENYA
`TUCKER, HAROLD WIMBUSH, SIMON
`ALLISON, PATRICIA HULL, Individually
`and On Behalf of All Others Similarly
`Situated,
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`OPINION & ORDER
`
`No. 20-CV-3124 (CS)
`
`
`
`- against -
`
`
`
`
`
`THE WORLD HEALTH ORGANIZATION,
`
`Defendant.
`
`
`
`
`
`-------------------------------------------------------------x
`
`Appearances:
`
`Steven Bennett Blau
`Shelly A. Leonard
`Blau Leonard Law Group LLC
`Huntington, New York
`Counsel for Plaintiffs
`
`Donald Francis Donovan
`Catherine Amirfar
`Natalie L. Reid
`Elizabeth Nielsen
`Matthew D. Forbes
`Alyssa T. Yamamoto
`Sebastian Dutz
`Debevoise & Plimpton LLP
`New York, New York
`Counsel for Defendant
`
`Seibel, J.
`
`Before the Court is Defendant’s Motion to Dismiss all claims in Plaintiffs’ Second
`
`Amended Complaint. For the following reasons, the motion is GRANTED.
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 2 of 20
`
`I.
`
`BACKGROUND
`
`For purposes of this motion, I accept as true the facts, but not the conclusions, set forth in
`
`Plaintiffs’ Second Amended Complaint. (Doc. 31 (“SAC”).)
`
`
`
`Facts
`
`Plaintiffs commenced this action against Defendant World Health Organization (the
`
`“WHO”), alleging negligence in responding to the COVID-19 pandemic. The WHO “is a
`
`specialized agency of the United Nations responsible for international public health.” (SAC ¶
`
`12.) It acts within the United Nations system to promote human health and well-being, monitor
`
`public health risks, and coordinate responses to health emergencies. (Id. ¶¶ 32, 33.) The United
`
`States is a member nation of the WHO, providing financial and technical support and
`
`participating in the WHO’s governance structure. (Id. ¶¶ 44, 95.) The WHO maintains regional
`
`and country offices throughout the world, including one at the United Nations headquarters in
`
`Manhattan. (See id. ¶¶ 14, 58, 125.)
`
`In December 2019, the first patients exhibiting symptoms of COVID-19 were
`
`hospitalized in Wuhan, China. (See id. ¶ 48.) According to one study, “laboratory testing was
`
`being done on patients” who exhibited these symptoms in mid-to-late December. (Id. ¶ 52.) As
`
`early as December 27, 2019, “a Guangzhou-based genomics company had sequenced most of the
`
`virus,” and it was similar to the deadly SARS coronavirus that caused nearly 800 deaths between
`
`2002 and 2003. (Id. ¶ 53.) The Wuhan Municipal Health Commission (“WMHC”) released a
`
`notice about the virus to medical institutions on December 30, 2019. (Id. ¶ 55.)
`
`The WHO claims it received its first notice of COVID-19’s existence on December 31,
`
`2019, when its country office in China picked up on a media statement on the WMHC website.
`
`(Id. ¶ 57.) The WHO China country office then notified the International Health Regulations
`
`2
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 3 of 20
`
`(“IHR”) focal point in the WHO Western Pacific Regional Office. (Id. ¶ 58.) On December 31,
`
`2019, the WMHC declared that investigations had not, thus far, “found any obvious human-to-
`
`human transmission and no medical staff infection.” (Id. ¶ 60.) Plaintiffs allege that this
`
`declaration from the Wuhan health authorities was contrary to “the belief of the doctors working
`
`on patients in Wuhan.” (Id.)
`
`On January 2, 2020, the Wuhan Institute of Virology completed a map of the virus’s
`
`genome. (Id. ¶ 68.) The next day, China’s National Health Commission (“NHC”) “ordered
`
`institutions not to publish any information” related to the virus and “ordered labs to transfer any
`
`samples they had to designated testing institutions, or to destroy them.” (Id. ¶ 69.) Despite these
`
`orders, sources in China notified the U.S. government about the virus on January 3. (Id. ¶ 70.)
`
`The WHO “released a statement on its website” on January 5, stating that, “[b]ased on
`
`the preliminary information from the Chinese investigation team, no evidence of significant
`
`human-to-human transmission and no health care worker infections have been reported.” (Id. ¶
`
`71.) Plaintiffs allege that the “WHO had actual or constructive notice that China was wrongfully
`
`denying or downplaying the risk of human-to-human transmission in the critical weeks while the
`
`virus was first spreading.” (Id. ¶ 63.) Plaintiffs state, without elaboration, that such knowledge
`
`came from “warnings from Taiwan and Hong Kong about the risk of human-to-human
`
`transmission.” (Id. ¶ 64.) On January 6, the U.S. Centers for Disease Control (“CDC”) asked to
`
`study COVID-19 within China “but was barred by the Chinese Government from entering the
`
`country until mid-February,” and “[the] WHO did not intervene.” (Id. ¶ 72.)
`
`Authorities in China publicly confirmed that the outbreak originated from a novel
`
`coronavirus on January 9, 2020. (Id. ¶ 73.) On January 12, “Chinese authorities and the WHO
`
`shared the genetic sequence of COVID-19 with the international community.” (Id. ¶ 76.) Two
`
`3
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 4 of 20
`
`days later, the WHO stated on Twitter that “[p]reliminary investigations conducted by the
`
`Chinese authorities have found no clear evidence of human-to-human transmission of the novel
`
`coronavirus (2019-nCoV) identified in Wuhan, China.” (Id. ¶ 78.)
`
`On January 20 and 21, 2020, a WHO delegation “conducted a field visit to Wuhan to
`
`learn about the response to 2019 novel coronavirus.” (Id. ¶ 80.) The WHO issued a statement
`
`on January 22 that “there was evidence of human-to-human transmission in Wuhan, but more
`
`investigation was needed to understand the full extent of transmission.” (Id. ¶ 81.) From
`
`January 22 through 23, the WHO convened an Emergency Committee to “assess whether the
`
`outbreak constituted a public health emergency of international concern,” but did not reach a
`
`consensus based on the evidence available. (Id. ¶ 82.)
`
`A WHO delegation traveled to Beijing on January 28 to “learn more about China’s
`
`response, and to offer any technical assistance.” (Id. ¶ 83.) The next day, WHO’s Director-
`
`General addressed journalists at a press conference in Geneva, thanking “the Chinese
`
`government for the extraordinary steps it had taken to prevent the spread of the new
`
`coronavirus.” (Id. ¶ 84.) Plaintiffs describe these statements as part of a pattern of “praise
`
`heaped on the [Chinese Communist Party]’s handling of the pandemic, reveal[ing] a disturbing
`
`willingness to ignore science and alternative credible sources.” (Id. ¶ 65.) On January 30, the
`
`WHO declared that COVID-19 “constituted a Public Health Emergency of International
`
`Concern,” but “did not recommend any travel or trade restriction.” (Id. ¶ 85.) After the United
`
`States imposed travel restrictions on January 31, 2020, the WHO opined that widespread
`
`restrictions were not needed and could increase “fear and stigma, with little public health
`
`benefit.” (Id. ¶ 93.)
`
`4
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 5 of 20
`
`On March 11, 2020, the WHO concluded that “COVID-19 can be characterized as a
`
`pandemic.” (Id. ¶ 88.)
`
`Plaintiffs allege that the WHO’s response to the pandemic between December 2019 and
`
`March 2020 as described above was negligent and reckless. (Id. ¶ 89.) Specifically, they assert
`
`that the WHO negligently failed to (1) “timely declare [COVID-19] a public health emergency of
`
`international concern,” (2) “properly monitor the response to the Coronavirus pandemic in
`
`China,” (3) “timely promulgate the correct treatment guidelines to its members,” (4) “timely and
`
`properly issue appropriate guidance to its members on how they should respond to the
`
`Coronavirus pandemic emergency,” and (5) “act as a global coordinator.” (Id. ¶ 1.) As a result,
`
`Plaintiffs allege that the WHO “proximately caused injury and incalculable harm to Plaintiffs
`
`and Class Members.” (Id. ¶ 4.) Plaintiffs are residents of Westchester County, New York, and
`
`bring this action on behalf of “[a]ll adult persons in the County of Westchester, State of New
`
`York who have suffered injury, damage and loss related to the outbreak of the [sic] COVID-19,”
`
`as well as “[a]ll adult persons in the County of Westchester, State of New York who have been
`
`diagnosed with, treated for and/or died from COVID-19.” (Id. ¶ 103.)
`
`
`
`Procedural History
`
`Plaintiffs filed their Complaint on April 20, 2020, (Doc. 1), and their First Amended
`
`Complaint on May 4, 2020, (Doc. 7). On August 14, Defendant submitted a letter requesting a
`
`pre-motion conference concerning its anticipated motion to dismiss on grounds of immunity,
`
`(Doc. 20), and Plaintiffs submitted a letter in opposition to Defendant’s request, arguing that the
`
`Court should not hear the motion until after discovery, during which Plaintiffs could gather facts
`
`necessary for their opposition. (Doc. 21).
`
`5
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 6 of 20
`
`The Court held a pre-motion conference on September 9, 2020, in which it denied
`
`Plaintiffs’ request to defer adjudication of Defendant’s proposed motion under Federal Rule of
`
`Civil Procedure 12(b)(1) but granted Plaintiffs the opportunity to submit another amended
`
`complaint with any additional facts which might address Defendant’s immunity defense.
`
`(Minute Entry dated September 9, 2020.) On October 1, Plaintiffs filed their Second Amended
`
`Complaint. (Doc. 31.) Defendant filed its Motion to Dismiss, (Doc. 32), and Memorandum of
`
`Law, (Doc. 33), on November 2, 2020. Plaintiffs filed their Memorandum in Opposition on
`
`December 18, 2020. (Doc. 37.) Defendant filed its Reply Memorandum on January 8, 2021.
`
`(Doc. 38.)
`
`II.
`
`LEGAL STANDARD
`
`Under Federal Rule of Civil Procedure 12(b)(1), a district court may properly dismiss an
`
`action “for lack of subject matter jurisdiction if the court ‘lacks the statutory or constitutional
`
`power to adjudicate it.’” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d
`
`411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
`
`2000)). “The issue of [the WHO’s] immunity from suit implicates this Court’s subject matter
`
`jurisdiction and is properly addressed under the standards governing a Rule 12(b)(1) motion.”
`
`Sadikoglu v. United Nations Dev. Programme, No. 11-CV-294, 2011 WL 4953994, at *2
`
`(S.D.N.Y. Oct. 14, 2011). “A plaintiff asserting subject matter jurisdiction has the burden of
`
`proving by a preponderance of the evidence that it exists.” Makarova, 201 F.3d at 113. In
`
`determining whether subject matter jurisdiction exists, the district court “must take all facts
`
`alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff, but
`
`jurisdiction must be shown affirmatively, and that showing is not made by drawing from the
`
`pleadings inferences favorable to the party asserting it.” Morrison v. Nat’l Austl. Bank Ltd., 547
`
`6
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 7 of 20
`
`F.3d 167, 170 (2d Cir. 2008) (citation and internal quotation marks omitted), aff’d, 561 U.S. 247
`
`(2010). The Court may “rely on evidence outside the complaint” when deciding a Rule 12(b)(1)
`
`motion. Cortlandt St. Recovery Corp., 790 F.3d at 417.
`
`III. DISCUSSION
`
`
`
`Immunity Pursuant to the WHO Constitution
`
`Defendant first argues that Plaintiffs’ claims are barred by absolute immunity under the
`
`WHO constitution. That document, which came into effect in 1948, provides that the WHO
`
`“shall enjoy in the territory of each Member such privileges and immunities as may be necessary
`
`for the fulfilment of its objective and for the exercise of its functions.” WHO Const., art. 67. It
`
`further provides that “privileges and immunities shall be defined in a separate agreement.” Id.
`
`art. 68. This “separate agreement” refers to the Special Convention on the Privileges and
`
`Immunities of the Specialized Agencies of November 21, 1947. 33 U.N.T.S. 261 (“Special
`
`Convention”). The Special Convention explicitly states that “specialized agencies,” including
`
`the WHO, “shall enjoy immunity from every form of legal process except in so far as in any
`
`particular case they have expressly waived their immunity.” Special Convention, art. III, § 4.
`
`Defendant argues that it is immune from this suit because it has not expressly waived this
`
`immunity. (See Doc. 33 at 12-16.)
`
`As a “constituent instrument of an international organization,” the WHO’s constitution is
`
`an international treaty. Vienna Convention on the Law of Treaties, arts. 2(1)(a), 5, opened for
`
`signature May 23, 1969, 1155 U.N.T.S. 331. “But not all international law obligations
`
`automatically constitute binding federal law enforceable in United States courts.” Medellín v.
`
`Tex., 552 U.S. 491, 504 (2008). The Supreme Court “has long recognized the distinction”
`
`between self-executing and non-self-executing treaties. Id. The former “‘operates of itself
`
`7
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 8 of 20
`
`without the aid of any legislative provision.’” Id. at 505 (quoting Foster v. Neilson, 27 U.S. 253,
`
`314 (1829)). The latter “‘can only be enforced pursuant to legislation to carry them into effect.’”
`
`Id. (quoting Whitney v. Robertson, 124 U.S. 190, 194 (1888)). Essentially, “while treaties may
`
`comprise international commitments, they are not domestic law unless Congress has either
`
`enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’
`
`and is ratified on these terms.” Id. at 505 (cleaned up).
`
`Congress passed a Joint Resolution in 1948 “accept[ing] membership for the United
`
`States in [the WHO], the constitution of which was adopted in New York on July 22, 1946.” 22
`
`U.S.C. § 290. This 1948 Joint Resolution constituted an ex post congressional-executive
`
`agreement. See Restatement (Third) of Foreign Relations Law, § 303, cmt. e (1987).1
`
`Generally, such congressional-executive agreements can be “presumed self-executing unless
`
`specified otherwise.” Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of
`
`International Lawmaking in the United States, 117 Yale L.J. 1236, 1321 (2008); see New York
`
`Chinese TV Programs, Inc. v. U.E. Enters., Inc., No. 88-CV-4170, 1989 WL 22442, at *12
`
`(S.D.N.Y. Mar. 8, 1989) (noting that congressional-executive agreements are “as binding in
`
`United States law as treaties”) (collecting cases).
`
`
`1 Comment E reads as follows:
`Congress may enact legislation that requires, or fairly implies, the need for an agreement
`to execute the legislation. Congress may authorize the President to negotiate and conclude an
`agreement, or to bring into force an agreement already negotiated, and may require the President
`to enter reservations. See, e.g., § 468, Reporters’ Note 6. Congress may also approve an
`agreement already concluded by the President. Congress cannot itself conclude such an
`agreement; it can be concluded only by the President, who alone possesses the constitutional
`power to negotiate with other governments.
`
`
`8
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 9 of 20
`
`While Plaintiffs do not directly contest that the Joint Resolution conferred treaty
`
`immunity on the WHO,2 Defendant notes, candidly, that at least one other court has cast doubt
`
`on whether the WHO constitution is self-executing and binding U.S. law. (See Doc. 38 at 4 n.1
`
`(citing Rodriguez v. Pan Am. Health Org., No. 20-CV-928, 2020 WL 6561448, at *18 (D.D.C.
`
`Nov. 9, 2020).) While Defendant argues that the reasoning in Rodriguez is flawed, and presents
`
`several arguments as to why the WHO constitution is in fact self-executing and conveys absolute
`
`immunity on the Defendant, it is not necessary for me to weigh in on this issue. Regardless of
`
`whether the WHO constitution is a self-executing treaty, the WHO is independently immune
`
`from suit under the International Organization Immunities Act (“IOIA”).
`
`
`
`Immunity Pursuant to the IOIA
`
`Immunity under the IOIA is concurrent with and separate from any treaty-based
`
`immunity the WHO may have. See Exec. Order No. 10,025, 13 Fed. Reg. 9361 (Dec. 31, 1948);
`
`see also Polak v. Int’l Monetary Fund, 657 F. Supp. 2d 116, 120 (D.D.C. 2009) (“The IOIA
`
`serves as a separate and independent source of immunity for international organizations such as
`
`the defendant.”), aff’d, No. 09-7114, 2010 WL 4340534 (D.C. Cir. Oct. 20, 2010). The IOIA
`
`grants international organizations “the same immunity from suit and every form of judicial
`
`
`2 Plaintiffs instead argue in their Memorandum in Opposition that there is no
`constitutional immunity because President Trump withdrew the United States from the WHO by
`terminating the 1948 congressional-executive agreement, and that the issues thereby raised
`present non-justiciable political questions. (Doc. 37 at 5-6.) President Trump’s action occurred
`on July 7, 2020, after the events underlying Plaintiffs’ complaint, and was not to be effective
`until July 6, 2021, see Cong. Research Serv., R46575, U.S. Withdrawal from the World Health
`Organization: Process and Implications 1 (2020), so the Court is dubious that the withdrawal
`would affect the immunity analysis. In any event, President Biden confirmed on the day of his
`inauguration, via a letter to the U.N. Secretary General, that the United States has not withdrawn
`and will not withdraw from the WHO. (Doc. 39-1.) Accordingly, this Court need not address
`Plaintiffs’ argument that the implications of the termination of the agreement present a non-
`justiciable political question.
`
`9
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 10 of 20
`
`process as is enjoyed by foreign governments, except to the extent that such organizations may
`
`expressly waive their immunity for the purpose of any proceedings or by terms of any contract.”
`
`22 U.S.C. § 288a(b). “Today, that means that the Foreign Sovereign Immunities Act [(“FSIA”)]
`
`governs the immunity of international organizations.” Jam v. Int’l Fin. Corp., 139 S. Ct. 759,
`
`772 (2019).
`
`The defendant must first “present[] a prima facie case that it is a foreign sovereign.”
`
`Cargill Int’l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993) (citing Baglab Ltd.
`
`v. Johnson Matthey Bankers Ltd., 665 F. Supp. 289, 293-94 (S.D.N.Y. 1987)). The plaintiff then
`
`“has the burden of going forward with evidence showing that, under exceptions to the FSIA,
`
`immunity should not be granted.” Id. (citing Baglab Ltd., 665 F. Supp. at 293-94). The ultimate
`
`burden of persuasion, however, “remains with the alleged foreign sovereign.” Id. (citing
`
`Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 n.6 (5th Cir. 1989)). To determine
`
`jurisdiction under the FSIA, “the district court must look at the substance of the allegations.” Id.
`
`at 1019.
`
`The WHO was designated as a “public international organization[] entitled to enjoy the
`
`privileges, exemptions, and immunities conferred by the [IOIA]” by President Truman via
`
`executive order in 1948. See Exec. Order 10,025, supra. Plaintiffs do not dispute that the FSIA
`
`applies to the WHO but argue instead that an exception to FSIA’s immunity applies. (See Doc.
`
`37 at 10.)
`
`1.
`
`The Non-Commercial Tort Exception
`
`First, under 28 U.S.C. § 1605(a)(5), known colloquially as FSIA’s “non-commercial tort
`
`exception,” immunity does not apply in any case “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
`
`10
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 11 of 20
`
`United States and caused by the tortious act or omission of that foreign state.” 28 U.S.C. §
`
`1605(a)(5). “Courts read this exception narrowly,” Democratic Nat’l Comm. v. Russian Fed’n,
`
`392 F. Supp. 3d 410, 427 (S.D.N.Y. 2019), and the exception applies only when the “entire tort”
`
`occurs “within the territorial jurisdiction of the United States.” In re Terrorist Attacks on Sept.
`
`11, 2001, 714 F.3d 109, 116 (2d Cir. 2013) (quoting Argentine Republic v. Amerada Hess
`
`Shipping Corp., 488 U.S. 428, 441 (1989)). Further, the exception does not apply to any claims
`
`predicated on the exercise or failure to exercise a discretionary function, regardless of whether
`
`that discretion was abused. See Democratic Nat’l Comm., 392 F. Supp. 3d at 427.
`
`a.
`
`The “Entire Tort” Rule
`
`The “entire tort” rule means that to be within the non-commercial tort exception, “not
`
`only the injury but also the act precipitating that injury” must occur within the territorial
`
`jurisdiction of the United States. Jerez v. Republic of Cuba, 775 F.3d 419, 424 (D.C. Cir. 2014)
`
`(citing Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1525 (D.C. Cir
`
`1984)); accord In re Terrorist Attacks, 714 F.3d at 116.
`
`Plaintiffs contend in the SAC that the WHO’s “negligent commissions and omissions . . .
`
`have proximately caused injury and incalculable harm to Plaintiffs and Class Members,” (SAC ¶
`
`4), but they do not allege that any of the relevant WHO conduct occurred in the United States.3
`
`
`3 In Plaintiffs’ Memorandum in Opposition, Plaintiffs state that the Pan American Health
`Organization (“PAHO”) in Washington, D.C. “engaged in evidence-based decision-making in
`connection with COVID-19” and that the “gravamen of plaintiffs’ claims is, in part, that the
`WHO negligently failed to follow and comply” with WHO Outbreak Communications
`Guidelines that are posted on the PAHO website. (Doc. 37 at 13-14.) Although these allegations
`do not appear in the SAC, I am permitted to consider evidence outside the complaint on a motion
`under Rule 12(b)(1). But the only evidence to which Plaintiffs point does not support their
`contentions. As for “decision-making in connection with COVID-19,” they specify nothing
`regarding the pandemic and cite only the general statement on the PAHO website that “[f]rom its
`Washington, D.C., headquarters, 27 country offices and three specialized centers in the region,
`
`
`11
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 12 of 20
`
`Instead, Plaintiffs point to actions taken by the WHO in China, the WHO Western Pacific
`
`Regional Office in the Philippines,4 and the WHO world headquarters in Geneva, Switzerland.
`
`(Id. ¶¶ 57, 58, 81, 83, 84.) Plaintiffs also refer to actions taken by the WHO in unspecified
`
`countries, stating that the WHO negligently disseminated information online, (see id. ¶¶ 61, 71,
`
`78), “ignored warnings from Taiwan and Hong Kong,” (id. ¶ 64), and “did not intervene” after
`
`the Chinese Government barred the CDC from studying COVID-19 within China, (id. ¶ 72).
`
`There is no information provided, however, to indicate that WHO personnel in the United States
`
`were responsible for these actions or inactions.
`
`In their Opposition to Defendant’s Motion to Dismiss, Plaintiffs argue that the WHO’s
`
`online COVID-19 information “emanated from and was facilitated by the digital based media on
`
`the internet in the United States.” (Doc. 37 at 15.) To support the claim that such information
`
`“emanated from” the United States, Plaintiffs argue that the “internet information campaign
`
`could not have originated in China” because that country blocks social media. (Id.) This alone,
`
`however, does not plausibly show that the information originated from the United States, given
`
`that the WHO has offices in countries other than the United States and China.5 Plaintiffs allege
`
`
`PAHO promotes evidence-based decision-making to improve and promote health as a driver of
`sustainable development.” (Id. at 13.) And that WHO guidelines applicable worldwide appear
`on that website hardly supports the conclusion that the challenged decisions were made in the
`United States. These website statements are far too vague and general to constitute even an
`allegation, let alone evidence, of conduct in the United States injurious to Plaintiffs.
`
`
`4 The website of the Western Pacific Regional Office states that it is based in the
`Philippines. See World Health Org., Western Pacific, About WHO in the Western Pacific,
`https://www.who.int/westernpacific/about (last visited Apr. 1, 2021) (“[W]e are located in the
`Philippines, where we have been since 1951.”)
`5 This allegation is also puzzling, as one of Plaintiffs’ main accusations is that the WHO
`unquestioningly accepted false information provided by China, (see, e.g., SAC ¶¶ 63-64, 78, 84,
`96, 134, 140-45), so it is not clear why it could not have done so from China.
`
`12
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 13 of 20
`
`no facts from which this Court could reasonably infer that the WHO disseminated these
`
`statements from within the United States, as opposed to, say, its headquarters in Geneva,
`
`Switzerland or any other country besides China.
`
`Plaintiffs also argue that the negligent conduct occurred in the United States because the
`
`WHO’s dissemination of information was “facilitated by digital based media on the internet in
`
`the United States.” (Id.) Plaintiffs argue that the “WHO heavily utilized Twitter and other
`
`American microblogging and social networking services . . . to publish and communicate
`
`[COVID-19] notices, guidance, warnings and medical advice top [sic] plaintiffs and putative
`
`Class members.” (Id.) That a statement may have been disseminated using the internet or a
`
`platform created by an American company does not suffice to show that the entire tort occurred
`
`in the United States. The internet is everywhere, and courts have consistently held that an entire
`
`tort is not committed in the United States simply because it involved use of technology
`
`accessible in the United States. See Doe v. Fed. Democratic Republic of Eth., 851 F.3d 7, 11
`
`(D.C. Cir. March 14, 2017) (entire tort was not committed in United States when plaintiff opened
`
`in United States a computer virus emailed from Ethiopia); Democratic Nat’l Comm., 392 F.
`
`Supp. 3d at 427-28 (entire tort was not committed in United States when computers in United
`
`States were hacked by person in Russia); Park v. Korean Broad. Sys., No. 07-CV-2233, 2008
`
`WL 4724374, at *3 (C.D. Ill. Oct. 24, 2008) (entire tort not committed in United States when
`
`South Korean company prepared and broadcast inadequate information to U.S. viewers through
`
`internet); cf. HB Prods., Inc. v. Faizan, No. 19-CV-487, 2020 WL 6784347, at *6 (D. Haw. Nov.
`
`18, 2020) (“Defendant’s use of United States companies with global reach” insufficient for
`
`personal jurisdiction). Thus, in the absence of facts plausibly showing that the statements were
`
`published by the WHO from within the United States, the WHO’s use of the internet and media
`
`13
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 14 of 20
`
`platforms based in the United States cannot constitute an “entire tort” committed by the
`
`organization in the United States.6
`
`b.
`
`The “Discretionary Acts” Exception
`
`Even if Plaintiffs could satisfy the entire tort rule, the WHO nevertheless retains its
`
`immunity if “the acts alleged to be negligent [are] discretionary, in that they involve an element
`
`of judgment or choice and are not compelled by statute or regulation,” and “the judgment or
`
`choice in question [is] grounded in considerations of public policy or susceptible to policy
`
`analysis.” USAA Cas. Ins. Co. v. Permanent Mission of Republic of Namib., 681 F.3d 103, 111-
`
`12 (2d Cir. 2012).
`
`Plaintiffs state in their complaint that “[t]he discretionary function exception does not
`
`apply . . . because [the] WHO negligently failed to perform its clear duty or to act in accord with
`
`specific mandatory directives contained in the [IHR].” (SAC ¶ 28.) Even if the IHR creates
`
`mandatory directives for the WHO, however, these regulations do not support Plaintiffs’
`
`contention. While Plaintiffs cite to Articles 6 through 8 of the IHR in their Memorandum in
`
`Opposition, (Doc. 37 at 25), the only relevant provisions in these articles specify obligations of
`
`State Parties, not the WHO. See Int’l Health Regulations (3d ed. 2005) (“IHR 2005”), arts. 6-8.
`
`Articles 7 and 8 do not specify any obligation of the WHO, and the only directive given to the
`
`
`6 Further, even if it could be said that the WHO’s dissemination of information occurred
`in the United States, that dissemination is not the “entire tort.” Rather, to the extent Plaintiffs
`specify a location for the failings between December 2019 and March 2020 that they challenge,
`they occurred mostly in China. At best Plaintiffs allege “a transnational tort over which [the
`Court] lack[s] subject matter jurisdiction.” Doe, 851 F.3d at 11.
`
`
`
`
`14
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 15 of 20
`
`WHO under Article 6 is to “immediately notify the [International Atomic Energy Agency]” if
`
`notification received by WHO involves this agency. Id.7
`
`Plaintiffs also allege that the “WHO had the duty to request, in accordance with Article 9
`
`[of the IHR], verification from China, of sources” of COVID-19 information. (SAC ¶ 140.)8
`
`But the SAC does not allege that the WHO failed to make such a request, but instead makes only
`
`the general and vague assertion that the “WHO negligently failed to provide effective leadership
`
`and implementation of its core global functions under IHR.” (Id.) And in any event, this
`
`function does not pertain to the WHO’s dissemination of information in the United States. IHR
`
`2005 art. 9. Article 10 of the IHR, a portion of which does pertain to the WHO’s dissemination
`
`of information in the United States, makes plain that this function is discretionary, stating that if
`
`the relevant country declines to collaborate with the WHO, the “WHO may, when justified by the
`
`magnitude of the public health risk, share with other States Parties the information available to
`
`it.” Id. art. 10 (emphasis added). A judgment grounded in assessment of public health risk is a
`
`consideration of public policy. USAA Cas Ins. Co., 681 F.3d at 111-12; see Mahon v. United
`
`States, 742 F.3d 11, 15-16 (1st Cir. 2014) (decision involving choice as to how to manage risk is
`
`product of discretion, and determining what precautions to take based on competing values is
`
`“the stuff of policy analysis,” so discretionary function exception applied).
`
`
`7 Plaintiffs allege that the “WHO was negligent and recklessly failed to enforce these IHR
`core capacity requirements against China,” (SAC ¶ 134), but they do not identify any
`enforcement mechanism in the IHR or elsewhere, or otherwise suggest how the WHO might
`have done so.
`8 Article 9 provides that when the WHO takes into account reports from sources other
`than notifications and consultations from or with member countries, it shall – after assessing
`them “according to established epidemiological principles” and “communicat[ing] information
`on the event to the State Party in whose territory the event is allegedly occurring” – “consult with
`and attempt to obtain verification from the State Party in whose territory the event is allegedly
`occurring in accordance with the procedure set forth in Article 10.” IHR 2005 art. 9.
`
`15
`
`

`

`Case 7:20-cv-03124-CS Document 40 Filed 04/05/21 Page 16 of 20
`
`Finally, Plaintiffs allege that the IHR “outline the criteria to determine whether or not a
`
`particular event constitutes a ‘public health emergency of international concern,’” (SAC ¶ 130
`
`(referring to IHR 2005 art. 12)), and allege that the WHO waited too long to make such a
`
`declaration regarding COVID-19, (id. ¶¶ 1, 89, 92, 144). The factors set forth in Article 12
`
`include, among other things, committee advice, available scientific evidence and an “assessment
`
`of the risk to human health, of the risk of international spread of the disease and of the risk of
`
`interference with international traffic.” IHR 2005 art. 12. These criteria, f