Case: 20-16408, 11/04/2021, ID: 12278506, DktEntry: 74, Page 1 of 2
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`O’Melveny & Myers LLP
`1625 Eye Street, NW
`Washington, DC 20006-4061
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`November 4, 2021
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`T: +1 202 383 5300
`F: +1 202 383 5414
`omm.com
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`Michael R. Dreeben
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`D: +1 202 383 5400
`mdreeben@omm.com
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`Molly Dwyer, Clerk of Court
`Office of the Clerk
`U.S. Court of Appeals for the Ninth Circuit
`P.O. Box 193939
`San Francisco, CA 94119-3939
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`Re: NSO Group Technologies Ltd. et al. v. WhatsApp Inc., et al., No. 20-
`16408
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`Dear Ms. Dwyer:
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`Pursuant to Federal Rule of Appellate Procedure 28(j) and 44 U.S.C. § 1507 (“The
`contents of the Federal Register shall be judicially noticed.”), appellees advise the court
`that the Department of Commerce published a final rule in the Federal Register today
`adding appellee NSO Group to the federal government’s Entity List. 86 Fed. Reg. 60759
`(Nov. 4, 2021), https://www.federalregister.gov/documents/2021/11/04/2021-
`24123/addition-of-certain-entities-to-the-entity-list.
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`The Entity List identifies entities reasonably believed to be involved in activities
`contrary to the national security or foreign policy interests of the United States and
`subjects those entities to strict export licensing requirements. Id. The End-User Review
`Committee (ERC), composed of representatives of the Departments of Commerce, State,
`Defense, Energy, and, where appropriate, Treasury, makes all decisions about additions
`to the Entity List. Id. The ERC added NSO to the Entity List because “investigative
`information has shown” that NSO “developed and supplied spyware to foreign
`governments that used this tool to maliciously target government officials, journalists,
`businesspeople, activists, academics, and embassy workers.” Id.
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`Appellees have argued that no established government practice accords foreign-
`official conduct-based immunity to entities like NSO and that, in any event, NSO cannot
`qualify for conduct-based immunity. Appellee Br. 23-66. NSO’s Entity List designation
`confirms that NSO’s immunity claim has no support in established U.S. law. Under the
`“two-step procedure” applicable “when a foreign official assert[s] immunity,” the
`defendant must show either that the State Department issued it a suggestion of
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`Century City • Los Angeles • Newport Beach • New York • San Francisco • Silicon Valley • Washington, DC
`Beijing • Brussels • Hong Kong • London • Seoul • Shanghai • Singapore • Tokyo
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`Case: 20-16408, 11/04/2021, ID: 12278506, DktEntry: 74, Page 2 of 2
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`immunity or that the asserted “ground of immunity” reflects “the established policy of
`the [State Department] to recognize.” Samantar v. Yousuf, 560 U.S. 305, 311-12 (2010).
`Nothing supports a finding that the State Department has accorded immunity to an
`entity that has appeared on a designated list reflecting the federal government’s
`determination that such entity engaged in activities contrary to the national security or
`foreign policy interests of the United States.
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`Sincerely,
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`/s/ Michael R. Dreeben
`Michael R. Dreeben
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`Counsel for Plaintiffs-Appellees
`WhatsApp Inc. et al.
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