`No. 21-1338
`
`In the
`Supreme Court of the United States
`________________
`NSO GROUP TECHNOLOGIES LIMITED AND
`Q CYBER TECHNOLOGIES LIMITED,
`Petitioners,
`
`v.
`WHATSAPP INC. AND META PLATFORMS, INC.,
`Respondents.
`________________
`On Petition for Writ of Certiorari to
`the United States Court of Appeals
`for the Ninth Circuit
`________________
`SUPPLEMENTAL BRIEF OF PETITIONERS
`________________
`Joseph N. Akrotirianakis
`Jeffrey S. Bucholtz
`Aaron Craig
` Counsel of Record
`KING & SPALDING LLP
`KING & SPALDING LLP
`633 W. 5th Street
`1700 Pennsylvania Ave. NW
`Washington, DC 20006
`Suite 1600
`Los Angeles, CA 90071
`(202) 737-0500
`jbucholtz@kslaw.com
`Matthew V.H. Noller
`KING & SPALDING LLP
`50 California Street
`Suite 3300
`San Francisco, CA 94105
`Counsel for Petitioners
`December 2, 2022
`
`
`
`
`TABLE OF CONTENTS
`Table of Authorities .................................................... ii
`Supplemental Brief of Petitioners ............................. 1
`Argument .................................................................... 1
`I. The government agrees that the Ninth
`Circuit incorrectly decided an important
`question of law ..................................................... 1
`II. Whether NSO should ultimately receive
`common-law immunity is irrelevant to the
`question presented .............................................. 3
`III. The
`decision
`below
`conflicts with
`Samantar and decisions of the D.C. and
`Fourth Circuits .................................................... 8
`Conclusion ................................................................. 10
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Cases
`Broidy Cap. Mgmt. LLC v. Muzin,
`12 F.4th 789 (D.C. Cir. 2021) .................................. 9
`Broidy Cap. Mgmt., LLC v. Qatar,
`982 F.3d 582 (9th Cir. 2020),
`cert. denied, 141 S. Ct. 2704 (2021) ......................... 6
`Butters v. Vance Int’l, Inc.,
`225 F.3d 462 (4th Cir. 2000) .................................... 9
`Herbage v. Meese,
`747 F. Supp. 60 (D.D.C. 1990) ................................. 6
`Ivey ex rel. Carolina Golf Dev. Co. v. Lynch,
`No. 17CV439, 2018 WL 3764264
`(M.D.N.C. Aug. 8, 2018) .......................................... 9
`Moriah v. Bank of China Ltd.,
`107 F. Supp. 3d 272 (S.D.N.Y. 2015) ...................... 9
`Rishikof v. Mortada,
`70 F. Supp. 3d 8 (D.D.C. 2014) ................................ 6
`Samantar v. Yousuf,
`560 U.S. 305 (2010) ........................................ passim
`Other Authorities
`BIO,
`Samantar v. Yousuf,
`560 U.S. 305 (2010)
`(No. 08-1555), 2009 WL 2776860 ............................ 4
`DOJ Letter (Ex. A),
`Cengiz v. bin Salman,
`No. 20-cv-3009 (D.D.C. Nov. 17, 2022),
`ECF No. 53-1 ............................................................ 8
`
`
`
`iii
`
`Pet. for Cert.,
`Samantar v. Yousuf,
`560 U.S. 305 (2010)
`(No. 08-1555), 2009 WL 1759041 ............................ 3
`Restatement (Second) of Foreign Relations
`Law of the United States § 66 (1965) ...................... 5
`
`
`
`
`
`
`SUPPLEMENTAL BRIEF OF PETITIONERS
`Petitioners (“NSO”) submit this supplemental
`brief to address the Solicitor General’s brief. The
`Solicitor General endorses several of NSO’s key
`arguments and identifies no valid basis for denying
`review. The Court should grant the petition for
`certiorari.
`
`ARGUMENT
`I. The government agrees that the Ninth
`Circuit incorrectly decided an important
`question of law.
`Although this Court asked the government to
`provide its views on the question presented by NSO’s
`petition,
`the government conspicuously avoids
`providing a straight answer to that question: Whether
`the FSIA “entirely displaces common-law immunity
`for entities.” Pet. i. But despite being unwilling to
`come right out and say it, the Solicitor General’s brief
`makes clear that the Ninth Circuit was wrong to hold
`that the FSIA categorically prohibits entities from
`seeking common-law conduct-based immunity even
`when, like NSO, they act as agents of foreign
`governments.
`The government states it cannot “endorse” the
`Ninth Circuit’s “categorical holding,” SG Br. 7, and for
`good reason. Immunity under the FSIA is “status-
`based”: it “address[es] only entities that Congress
`determined should be covered by a foreign state’s
`sovereign immunity because they are so closely
`connected with the foreign state that they are deemed
`to be part of the state itself.” Id. at 9. That is “distinct
`from the question whether a more limited form of
`
`
`
`2
`
`conduct-based immunity could be recognized for
`specific acts undertaken on behalf of a foreign state by
`an entity.” Id. Contrary to the Ninth Circuit’s decision,
`the FSIA “does not necessarily resolve” that question
`of “conduct-based immunity.” Id. at 10.
`The government thus endorses one of NSO’s
`central arguments. NSO has explained that “[t]he
`FSIA’s definition of ‘foreign state’ incorporates entities
`that, because they are state-owned ‘agenc[ies] or
`instrumentalit[ies],’ are equivalent to foreign states.”
`Pet. Reply 11. As a result, the FSIA “limits … which
`entities possess immunity as foreign states,” but not
`which entities can seek conduct-based immunity as
`foreign agents. Id. The government plainly agrees
`with these points, even if it cannot bring itself to say so.
`The government also agrees with NSO that the
`question presented is “important.” SG Br. 14. The
`Ninth Circuit’s decision improperly “foreclose[s] the
`Executive Branch from recognizing the propriety of
`[conduct-based] immunity in a particular context in
`the future even if such a recognition were found to be
`warranted.” Id. at 7; see also id. at 11, 13. Based on
`that consequence, the government seemingly agrees
`that the question presented would be worthy of this
`Court’s review in what the government deems an
`appropriate case. See
`id. at 14
`(identifying
`circumstances in which “the Court should take up that
`important and difficult question”).
`
`
`
`3
`
`II. Whether NSO should ultimately receive
`common-law immunity is irrelevant to the
`question presented.
`1. Despite agreeing with NSO that the Ninth
`Circuit
`incorrectly decided an
`important
`legal
`question in a way that negatively affects the United
`States’ interests, the government opposes review. It
`claims to do so because, it argues, NSO is not entitled
`to conduct-based
`immunity—even though other
`entities could be “in a particular context or
`circumstance.” SG Br. 13. But as NSO has already
`explained, whether it will receive conduct-based
`immunity on remand is irrelevant to whether the
`Court should grant the petition for certiorari. Pet.
`Reply 7-8. The question presented is not whether
`NSO’s conduct-based
`immunity defense should
`ultimately succeed. The question is what law governs
`NSO’s defense—the FSIA or the common law. That
`“important” question, SG Br. 16-17, is worthy of
`review even if NSO’s defense ultimately fails.
`This Court faced a similar situation in Samantar
`v. Yousuf, 560 U.S. 305 (2010). There, the court of
`appeals had held that the defendant was not entitled
`to FSIA immunity because “the FSIA does not apply
`to individual foreign government agents.” Id. at 310.
`The defendant’s petition asked the Court to decide
`“[w]hether a foreign state’s immunity from suit under
`the [FSIA] extends to an individual acting in his
`official capacity on behalf of a foreign state.” Pet. for
`Cert. i, Samantar, 560 U.S. 305 (No. 08-1555), 2009
`WL 1759041. The plaintiffs opposed review, in part, by
`arguing that “the unique circumstances presented”
`made the case “a poor vehicle for determining the rules
`
`
`
`4
`
`of sovereign immunity that will apply to nations
`worldwide.” BIO 11, Samantar, 560 U.S. 305 (No. 08-
`1555), 2009 WL 2776860. Among those circumstances
`was the fact that the State Department had not issued
`a “statement of immunity” for the defendant. Id. at 12.
`This Court granted review nonetheless. And it
`decided the question presented solely as an abstract
`matter of statutory interpretation. See 560 U.S. at 313
`(“We begin with the statute’s text and then consider …
`its history and purpose.”); id. 326-29 (concurring
`opinions)
`(relying exclusively on FSIA’s
`text).
`Nowhere did the Court consider the defendant’s
`particular circumstances or suggest that they were
`relevant to the FSIA’s meaning. To the contrary, the
`Court expressly avoided addressing
`“[w]hether
`petitioner may be entitled to immunity under the
`common law.” Id. at 325. It left that question “to be
`addressed in the first instance by the District Court on
`remand.” Id. at 326.
`The Court should take the same approach here.
`As the government admits, the Ninth Circuit
`interpreted the FSIA in a way that does not depend on
`the “particular context” of this or any case. SG Br. 7,
`13; see App. 18-19 (“The proper analysis begins and
`ends with the FSIA”). This Court can do the same. The
`FSIA either displaces common-law immunity for all
`entities or none of them—whether or not they are
`similarly situated to NSO. See App. 12 (“If an entity
`does not fall within the [FSIA’s] definition of ‘foreign
`state,’ it cannot claim foreign sovereign immunity.
`Period.”). The government thus cannot explain how
`NSO’s particular circumstances bear on “whether the
`
`
`
`5
`
`FSIA should be read to categorically displace …
`common-law immunity” for entities. SG Br. 15.
`2. In any event, NSO’s circumstances do not
`support the government’s conclusion that it cannot
`receive
`common-law
`immunity. Although
`the
`government at times insinuates otherwise, conduct-
`based immunity does not depend on an ad-hoc,
`standardless assessment of whether the State
`Department
`chooses
`to
`support a particular
`defendant. While the State Department may grant
`common-law immunity by issuing a “suggestion of
`immunity,” it does not follow that a defendant cannot
`receive common-law immunity without a suggestion of
`immunity. Samantar, 560 U.S. at 311-12. “[I]n the
`absence of recognition of the immunity by the
`Department of State,” courts have the “authority” to
`decide “whether the ground of immunity is one which
`it is the established policy of the State Department to
`recognize.” Id. (cleaned up).
`Here, the relevant “ground of immunity,” id., is
`the well-established conduct-based immunity that an
`“agent of the state” enjoys “with respect to acts
`performed in his official capacity.” Id. at 321 (quoting
`Restatement (Second) of Foreign Relations Law of the
`United States § 66 (1965)). By focusing specifically on
`whether the State Department has “recogniz[ed] a
`conduct-based immunity for a private entity acting as
`an agent,” the government defines the test too
`narrowly. SG Br. 13-14 (emphasis added). Conduct-
`based immunity “does not depend on the identity of the
`person or entity [seeking immunity] so much as the
`nature of the act for which the person or entity is
`claiming immunity.” Herbage v. Meese, 747 F. Supp.
`
`
`
`6
`
`60, 66 (D.D.C. 1990). The agent’s “status” is thus
`irrelevant if “the act was performed on behalf of the
`foreign state.” Rishikof v. Mortada, 70 F. Supp. 3d 8,
`12-13 (D.D.C. 2014). That is no doubt why the
`government agrees that it could suggest conduct-
`based immunity for entities as well as individuals.
`E.g., SG Br. 13.1 And the “factors” the State
`Department claims it “could consider” for an entity are
`no different than the
`factors
`it considers
`for
`individuals. Id. at 11.
`There is, therefore, no reason to treat conduct-
`based immunity for entities as a distinct “ground of
`immunity” separate from “conduct-based immunity
`for individual foreign officials.” SG Br. 10.2 And so it
`does not matter whether “the United States []or any
`foreign sovereign has supported NSO’s claim to
`immunity” or whether NSO has “identified the foreign
`sovereigns for which it claims to have acted as an
`
`1 The government also acknowledges, albeit begrudgingly, that
`international law has recognized conduct-based immunity for
`entities. SG Br. 10-11 n.3.
`2 The government worries that a private entity might seek
`conduct-based immunity for commercial activity that the FSIA
`would not protect if performed by a state-owned entity. SG Br. 12.
`That would surely be a factor the State Department or a court
`could consider when appropriate, but this case presents no such
`concern. The conduct alleged in respondents’ complaint—the
`“collect[ion] [of] foreign
`intelligence” through surveillance
`technology—is “peculiarly sovereign conduct” for which a state-
`owned entity would be immune under the FSIA. Broidy Cap.
`Mgmt., LLC v. Qatar, 982 F.3d 582, 595 (9th Cir. 2020), cert.
`denied, 141 S. Ct. 2704 (2021). That is precisely why respondents
`sued NSO as an end-run around the FSIA immunity of NSO’s
`government clients.
`
`
`
`7
`
`agent.” Id. at 15. All that matters is whether NSO, like
`the many individual agents for whom the State
`Department has suggested conduct-based immunity,
`carried out the alleged conduct at issue in this case as
`an agent of foreign governments. SG Br. 10. The
`district court found, as a matter of fact, that NSO did
`exactly that. App. 35.3
`Nor is it relevant that “the United States added
`NSO to the ‘Entity List.’” SG Br. 15.4 The government
`identifies no previous instance—and NSO is not aware
`of any—in which the State Department has rejected a
`claim of common-law
`immunity based on
`its
`assessment that the defendant’s alleged activities are
`“contrary to the national security or foreign policy
`interests of the United States.” Id. The State
`Department routinely recommends common-law
`immunity for defendants accused of extrajudicial
`killings, terrorism, war crimes, torture, and the like—
`conduct of an entirely different order than anything
`respondents allege NSO did—while emphasizing that
`it condemns those actions as a foreign-policy matter.
`See Pet. Reply 9. Just a few weeks ago, in fact, the
`government told a federal court that Saudi Arabia’s
`
`3 The government is thus wrong to argue that the record is
`inadequate to support NSO’s defense. SG Br. 15; see Pet. Reply 8.
`But if more facts were required to assess whether NSO is entitled
`to conduct-based immunity, NSO could develop those facts in the
`district court after remand. The Ninth Circuit’s decision deprives
`NSO of that opportunity because it “foreclose[s]” conduct-based
`immunity for all entities in all circumstances. SG Br. 7, 11, 13.
`4 NSO has appealed the Treasury Department’s decision to
`place it on the Entity List, which NSO believes is legally and
`factually unsupported. That appeal remains in progress.
`
`
`
`8
`
`prime minister is entitled to common-law head-of-
`state immunity for his alleged role in the “heinous
`murder of Jamal Khashoggi,” despite the State
`Department’s “unequivocal condemnation” of that act.
`DOJ Letter at 1 (Ex. A), Cengiz v. bin Salman, No. 20-
`cv-3009 (D.D.C. Nov. 17, 2022), ECF No. 53-1. In light
`of the State Department’s established practice of
`recommending common-law immunity for defendants
`accused of murder, terrorism, war crimes, and torture,
`the government cannot credibly claim that NSO—
`which provides governments technology to prevent
`terrorism—cannot receive common-law immunity due
`to its presence on the Entity List.
`III. The decision below conflicts with Samantar
`and decisions of the D.C. and Fourth
`Circuits.
`The government’s argument that the Ninth
`Circuit’s decision is consistent with Samantar rests on
`an unjustifiably narrow interpretation of Samantar’s
`reasoning. While it is true that “Samantar did not
`address the specific issue presented here,” SG Br. 17,
`its rationale still controls. The Court recognized that
`the FSIA “governs the determination of whether a
`foreign state is entitled to sovereign immunity,” so it
`reached its conclusion that the FSIA does not apply to
`individual government agents based
`on
`its
`interpretation of the FSIA’s definition of “foreign
`state.” 560 U.S. at 313-14 (emphasis added). And it
`concluded that when a plaintiff’s claim “is not a claim
`against a foreign state as the Act defines that term,”
`it “is properly governed by the common law.” Id. at
`325. The Ninth Circuit’s decision conflicts with that
`rationale because it held that the FSIA governs claims
`
`
`
`9
`
`against entities that everyone agrees are not “foreign
`state[s] as the Act defines that term.” Id.; see App. 3, 12.
`The government’s attempts to distinguish Broidy
`Capital Management LLC v. Muzin, 12 F.4th 789
`(D.C. Cir. 2021), and Butters v. Vance International,
`Inc., 225 F.3d 462 (4th Cir. 2000), fare no better.
`Unlike respondents, BIO 12-13, the government at
`least admits that Broidy involved an entity defendant
`and that the D.C. Circuit analyzed the entity’s
`conduct-based immunity defense under the common
`law, SG Br. 18-19. But the government does not
`acknowledge, let alone address, the D.C. Circuit’s
`holding that “claims of immunity” by “private entities”
`must “rise or fall not under the FSIA, but the residual
`law and practice that the FSIA did not displace.” 12
`F.4th at 802. The Ninth Circuit held the exact
`opposite, creating a conflict—as the Ninth Circuit
`itself recognized. App. 15 n.5.
`Nor does the government address NSO’s showing
`that Butters—although decided before Samantar,
`when some courts analyzed conduct-based immunity
`under the FSIA—has been understood as granting
`conduct-based immunity to an entity. Pet. 12;
`Pet. Reply 4. The government denies that “Butters is
`‘instructive’ in considering questions of common-law
`immunity,” SG Br. 21, but it ignores the post-
`Samantar cases that have relied on Butters to grant
`conduct-based immunity to private agents. Ivey ex rel.
`Carolina Golf Dev. Co. v. Lynch, No. 17CV439, 2018
`WL 3764264, at *2, *6-7 (M.D.N.C. Aug. 8, 2018);
`Moriah v. Bank of China Ltd., 107 F. Supp. 3d 272,
`277 & n.34 (S.D.N.Y. 2015). Those cases confirm that
`
`
`
`10
`
`Butters is inconsistent with the decision below. See
`App. 17 n.6 (criticizing Butters).
`CONCLUSION
`This Court should grant the petition for certiorari.
`Respectfully submitted,
`Jeffrey S. Bucholtz
` Counsel of Record
`KING & SPALDING LLP
`1700 Pennsylvania Ave. NW
`Washington, DC 20006
`(202) 737-0500
`jbucholtz@kslaw.com
`
`Joseph N. Akrotirianakis
`Aaron Craig
`KING & SPALDING LLP
`633 W. 5th Street
`Suite 1600
`Los Angeles, CA 90071
`(213) 443-4355
`Matthew V.H. Noller
`KING & SPALDING LLP
`50 California Street
`Suite 3300
`San Francisco, CA 94105
`(415) 318-1200
`
`Counsel for Petitioners
`December 2, 2022
`
`
`
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