throbber
Case: 20-16408, 11/22/2021, ID: 12294725, DktEntry: 82-1, Page 1 of 23
`
`No. 20-16408
`
`IN THE
`United States Court of Appeals
`for the Ninth Circuit
`
`
`
`
`
`NSO GROUP TECHNOLOGIES LTD. ET AL.,
`Defendants-Appellants,
`
`v.
`WHATSAPP INC. ET AL.,
`Plaintiffs-Appellees.
`
`
`
`
`
`
`
`
`
`On Appeal from the United States District Court
`for the Northern District of California,
`No. 4:19-cv-07123-PJH
`
`
`
`
`
`
`
`
`
`
`
`APPELLANTS’ PETITION FOR REHEARING OR
`REHEARING EN BANC
`
`
`Joseph N. Akrotirianakis
`KING & SPALDING LLP
`633 W. 5th Street
`Suite 1600
`Los Angeles, CA 90071
`jakro@kslaw.com
`
`
`Counsel for Appellants
`NSO Group Tech. Ltd. et al.
`
`Dated: November 22, 2021
`
`
`
`
`
`
`Jeffrey S. Bucholtz
`KING & SPALDING LLP
`1700 Pennsylvania Ave., NW
`2nd Floor
`Washington, DC 20006
`jbucholtz@kslaw.com
`
`Matthew V.H. Noller
`KING & SPALDING LLP
`621 Capitol Mall, Suite 1500
`Sacramento, CA 95814
`mnoller@kslaw.com
`
`

`

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`TABLE OF CONTENTS
`Table of Authorities .................................................................................... ii
`Introduction and Rule 35 Statement ......................................................... 1
`Statement of the Case ................................................................................ 3
`Argument .................................................................................................... 8
`I. This Case Presents an Issue of Exceptional Importance That
`Has Divided the Courts of Appeals ................................................ 8
`II. The Panel’s Decision Conflicts with the Supreme Court’s
`Decision in Samantar ................................................................... 14
`Conclusion ................................................................................................. 17
`Certificate of Compliance ............................................................................ i
`Certificate of Service .................................................................................. ii
`
`
`
`
`
`
`
`
`

`

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`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Alicog v. Kingdom of Saudi Arabia,
`79 F.3d 1145 (5th Cir. 1996) .................................................................. 8
`Alicog v. Kingdom of Saudi Arabia,
`860 F. Supp. 379 (S.D. Tex. 1994) ......................................................... 8
`Belhas v. Ya’alon,
`515 F.3d 1279 (D.C. Cir. 2008) ............................................................ 10
`Broidy Cap. Mgmt. LLC v. Muzin,
`12 F.4th 789 (D.C. Cir. 2021) .............................................................. 13
`Butters v. Vance Int’l, Inc.,
`225 F.3d 462 (4th Cir. 2000) ................................................ 8, 10, 12, 13
`Ivey ex rel. Carolina Golf Dev. Co. v. Lynch,
`2018 WL 3764264 (M.D.N.C. Aug. 8, 2018) .................................... 9, 13
`Chuidian v. Philippine Nat’l Bank,
`912 F.2d 1095 (9th Cir. 1990) ................................................................ 8
`Doğan v. Barak,
`932 F.3d 888 (9th Cir. 2019) .................................................................. 8
`In re Estate of Ferdinand Marcos,
`25 F.3d 1467 (9th Cir. 1994) .................................................................. 8
`Haig v. Agee,
`453 U.S. 280 (1981) .............................................................................. 11
`Matar v. Dichter,
`563 F.3d 9 (2d Cir. 2009) ....................................................................... 8
`Mireskandari v. Mayne,
`800 F. App’x 519 (9th Cir. 2020) ........................................................... 8
`
`ii
`
`

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`
`
`Moriah v. Bank of China,
`107 F. Supp. 3d 272 (S.D.N.Y. 2015) ............................................... 9, 13
`Rep. of Austria v. Altmann,
`541 U.S. 677 (2004) ................................................................................ 9
`Samantar v. Yousuf,
`560 U.S. 305 (2010) .............................................................. 3, 14, 15, 16
`Siderman de Blake v. Rep. of Argentina,
`965 F.2d 699 (9th Cir. 1992) .................................................................. 9
`Underhill v. Hernandez,
`168 U.S. 250 (1897) ................................................................................ 8
`Yousuf v. Samantar,
`699 F.3d 763 (4th Cir. 2012) ................................................................ 13
`Statutes and Rules
`28 U.S.C. § 1603(a)–(b) ............................................................................. 14
`Cir. R. 35-1 ................................................................................................ 14
`Fed. R. App. P. 35(a)(2) .............................................................................. 3
`Fed. R. App. P. 35(b)(1)(A) ................................................................... 3, 16
`Fed. R. Civ. P. 35(b)(1)(B) ........................................................................ 14
`Other Authorities
`Brief for the United States as Amicus Curiae, CACI Premier
`Tech., Inc. v. Shimari, No. 19-648 (U.S. Aug. 26, 2020) ..................... 11
`Brief for the United States as Amicus Curiae, Mutond v.
`Lewis, No. 19-185 (U.S. May 26, 2020) ............................................... 10
`Dan Sabbagh, Call for Backdoor Access to WhatsApp as Five
`Eyes Nations Meet, The Guardian (July 30, 2019, 3:32
`p.m.) ........................................................................................................ 5
`
`iii
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`

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`
`
`Dipesh Gadher, London Bridge Terror Attack Planned on
`WhatsApp, Sunday Times (May 12, 2019, 12:01 a.m.) ......................... 5
`Glenn J. Voelz, Contractors and Intelligence: The Private
`Sector in the Intelligence Community, 22 Int’l J.
`Intelligence & CounterIntelligence 586, 588–91 (2009) ............... 10, 11
`Gordon Rayner, WhatsApp Accused of Giving Terrorists “A
`Secret Place to Hide” as It Refuses to Hand Over London
`Attacker’s Messages, Telegraph (Mar. 27, 2017, 1:54 p.m.) ................. 5
`Hazel Fox & Philippa Webb, The Law of State Immunity (3d
`ed. 2013) ............................................................................................... 13
`Hazel Fox, The Law of State Immunity (2d ed. 2008)............................... 9
`Lisa L. Turner & Lynn G. Norton, Civilians at the Tip of the
`Spear, 51 A.F. L. Rev. 1, 8 (2001) ........................................................ 11
`National Intelligence, The U.S. Intelligence Community’s
`Five Year Strategic Human Capital Plan (June 2006) ...................... 10
`Ryan Sabey, Tool of Terror: Social Media Giants Will Be
`Made to Hand over Encrypted WhatsApp Messages in
`Fight Against Terrorism, The Sun (Sept. 29, 2019, 7:45
`a.m.) ........................................................................................................ 6
`Statement of Interest of the United States of America, Matar
`v. Dichter, No. 05-cv-10270 (S.D.N.Y. Nov. 17, 2006) .......................... 8
`Ved P. Nanda et al., 1 Litigation of International Disputes in
`U.S. (Dec. 2020 update) ....................................................................... 13
`
`
`
`
`iv
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`

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`
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`INTRODUCTION AND RULE 35 STATEMENT
`Appellees Facebook and WhatsApp (collectively “WhatsApp”)
`
`brought this lawsuit to restrict how foreign countries may conduct their
`
`law-enforcement,
`
`intelligence, and national-security operations.
`
`Appellant NSO Group Technologies Ltd. designs technology and licenses
`
`it to foreign nations for use to investigate criminals who rely on encrypted
`
`messaging to plan acts of terrorism, child exploitation, bank robbery,
`
`weapons trafficking, and other serious crimes. WhatsApp does not like
`
`that. It has told this Court that governments should not be allowed to use
`
`surveillance software developed by private companies.
`
`That is why WhatsApp brought this lawsuit against NSO.
`
`WhatsApp knows it cannot directly sue the foreign states and officials
`
`who conduct investigations using NSO’s technology. So it chose to sue the
`
`foreign states’ agents, NSO and its parent company Q Cyber
`
`Technologies Limited (collectively, “NSO”). NSO designs and markets its
`
`technology for the exclusive use of foreign states in lawful investigations.
`
`Foreign states, not NSO, operate the technology and choose how and
`
`when to use it. NSO provides limited support, entirely at the direction of
`
`its foreign-state customers. And NSO’s home state, Israel, oversees and
`
`
`
`

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`
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`regulates NSO’s business. These undisputed facts establish that NSO
`
`acts entirely in an “official capacity” as an “agent[] of foreign
`
`governments.” ER 11.
`
`NSO therefore moved to dismiss WhatsApp’s complaint, arguing
`
`that it is immune from suit under the common-law doctrine—known as
`
`“conduct-based immunity”—that protects foreign agents from suit. It is
`
`undisputed that conduct-based immunity protects the private agents of
`
`foreign states for actions they take in their official capacity as agents.
`
`The question in this appeal is whether conduct-based immunity protects
`
`only private individuals, or whether, under appropriate circumstances,
`
`it also protects private entities.
`
`The correct answer to that question is that conduct-based immunity
`
`covers private entities. But the district court denied NSO immunity, and
`
`a three-judge panel of this Court affirmed in a published opinion. In doing
`
`so, however, the panel endorsed none of the district court’s reasoning. Op.
`
`5. Instead, the panel adopted a novel and sweeping position that no other
`
`court has adopted: that private entities are categorically ineligible for
`
`conduct-based immunity because the Foreign Sovereign Immunities Act
`
`(“FSIA”) entirely supplants common-law immunity for entities. Op. 14.
`
`2
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`

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`If the panel does not grant rehearing, the full Court should grant
`
`rehearing en banc and review the panel’s decision. First, whether private
`
`entities may receive conduct-based immunity is “a question of
`
`exceptional importance” that affects the ability of sovereign nations—
`
`including the United States—to conduct core sovereign activities without
`
`interference from foreign courts. Fed. R. App. P. 35(a)(2). The question
`
`has divided the federal Courts of Appeals, with three Circuits (including
`
`this one) taking different approaches. Second, the panel’s novel holding—
`
`that the FSIA entirely displaces the common law as applied to entities—
`
`“conflicts with” the Supreme Court’s decision in Samantar v. Yousuf, 560
`
`U.S. 305 (2010). Fed. R. App. P. 35(b)(1)(A). Rehearing en banc is
`
`warranted for these reasons.
`
`STATEMENT OF THE CASE
`1. NSO is an Israeli company that designs a highly regulated
`
`technology for use by governments to investigate terrorism, child
`
`exploitation, and other serious crimes. ER 52–53 ¶¶ 5–9, 63 ¶ 5. One of
`
`NSO’s products—a program called “Pegasus”—“enables law enforcement
`
`and intelligence agencies to remotely and covertly extract valuable
`
`intelligence from virtually any mobile device.” ER 107. Governments can
`
`3
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`

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`use Pegasus to intercept messages, take screenshots, or exfiltrate a
`
`device’s contacts or history. ER 67 ¶ 27, 70 ¶ 41.
`
`Pegasus is marketed only to and used only by sovereign
`
`governments. ER 53 ¶ 9, 96. NSO licenses Pegasus to law enforcement
`
`and intelligence agencies, and those government agencies choose
`
`whether and how to use Pegasus. ER 54–55 ¶ 14. NSO’s foreign-state
`
`customers—not NSO—determine whether to install Pegasus on a mobile
`
`device, and then the government customers install Pegasus and monitor
`
`the device. See ER 55 ¶ 15.
`
`Because of Pegasus’s abilities, it is subject to strict regulation.
`
`Export of Pegasus is regulated under Israel’s Defense Export Control
`
`Law, which authorizes Israel’s Ministry of Defense to grant or deny any
`
`license between NSO and its foreign-sovereign customers. ER 52 ¶¶ 5, 6.
`
`In addition, the Ministry of Defense mandates that NSO require its users
`
`to certify that Pegasus “will be used only for prevention and investigation
`
`of terrorism and criminal activity.” ER 53 ¶ 8. And the Ministry of
`
`Defense may deny or revoke export licenses if it determines that a foreign
`
`country has used Pegasus for an unauthorized reason, such as to violate
`
`human rights. ER 54 ¶ 12. Pegasus is also designed with technical
`
`4
`
`

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`safeguards,
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`including general and customer-specific geographic
`
`restrictions that prevent it from accessing any device with a U.S. phone
`
`number or any device within the geographic bounds of the United States.
`
`ER 54 ¶ 13.
`
`WhatsApp, owned by Facebook, is a popular communication
`
`service. See ER 65 ¶ 17. Some WhatsApp users are violent criminals and
`
`terrorists who exploit WhatsApp’s encryption to avoid detection. For
`
`instance, the Islamic State terrorist who attacked London’s Westminster
`
`Bridge in 2017 used WhatsApp two minutes before killing five innocent
`
`civilians. Three months later, terrorists used WhatsApp to plan a knife
`
`rampage on London Bridge. Following both attacks, WhatsApp refused
`
`to turn over the terrorists’ messages or to assist in apprehending them.
`
`E.g., Dipesh Gadher, London Bridge Terror Attack Planned on
`
`WhatsApp, Sunday Times
`
`(May
`
`12,
`
`2019,
`
`12:01
`
`a.m.),
`
`https://bit.ly/38xG2Uy; Gordon Rayner, WhatsApp Accused of Giving
`
`Terrorists “A Secret Place to Hide” as It Refuses to Hand Over London
`
`Attacker’s Messages, Telegraph
`
`(Mar. 27, 2017, 1:54 p.m.),
`
`https://bit.ly/38uHkjl; Dan Sabbagh, Call for Backdoor Access to
`
`WhatsApp as Five Eyes Nations Meet, The Guardian (July 30, 2019, 3:32
`
`5
`
`

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`
`
`p.m.), https://bit.ly/2InSNpZ; Ryan Sabey, Tool of Terror: Social Media
`
`Giants Will Be Made to Hand over Encrypted WhatsApp Messages in
`
`Fight Against Terrorism, The Sun (Sept. 29, 2019, 7:45 a.m.),
`
`https://bit.ly/2TuLNhK. Technology like Pegasus thus enables sovereign
`
`governments to prevent terrorism and violent crime when WhatsApp is
`
`unwilling to do so itself.
`
`2. WhatsApp filed this suit in October 2019, claiming that its
`
`servers were used in the process of installing Pegasus on the devices of
`
`1,400 users in violation of WhatsApp’s terms of service. ER 63 ¶ 1. It
`
`sought injunctive relief and damages for violations of the Computer
`
`Fraud and Abuse Act and state law.
`
`NSO moved to dismiss. ER 1. Among other defenses, NSO
`
`challenged the district court’s subject-matter jurisdiction on the ground
`
`that it was immune from this suit as an agent of foreign sovereigns. ER
`
`11. In support, NSO submitted evidence—including a declaration from
`
`its CEO—proving that its “sovereign customers . . . operate the
`
`technology themselves, to advance their own sovereign interests,” while
`
`NSO provides only limited “advice and technical support,” “entirely at
`
`6
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`

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`
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`the direction of [its] government customers.” ER 54–55 ¶ 14. WhatsApp
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`did not submit any contrary evidence. ER 11.
`
`The district court nonetheless rejected NSO’s immunity defense.
`
`The district court found, based on NSO’s undisputed evidence, that NSO
`
`was an agent of foreign governments and that NSO’s alleged conduct fell
`
`within its “official capacity” as a foreign agent. ER 11. The court ruled,
`
`however, that NSO did not qualify for conduct-based foreign official
`
`immunity because a judgment against NSO would not bind any foreign
`
`sovereign. ER 12. The district court also held that so-called “derivative
`
`sovereign immunity,” which it treated as a separate theory of immunity,
`
`protects only American companies. ER 13–14.
`
`3. NSO timely appealed, ER 46, and a panel of this Court
`
`affirmed. The panel did not, however, endorse either of the grounds relied
`
`on by the district court. Op. 5. Instead, it adopted a novel argument that
`
`WhatsApp raised for the first time on appeal: that private entities are
`
`categorically ineligible for conduct-based immunity because the FSIA
`
`entirely displaces the common law as applied to entities. Op. 14–18.
`
`7
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`

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`
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`I.
`
`ARGUMENT
`This Case Presents an Issue of Exceptional Importance That
`Has Divided the Courts of Appeals.
`It is undisputed that, for more than 200 years, the common
`A.
`
`law has afforded conduct-based immunity to foreign officials and other
`
`agents acting on a foreign state’s behalf. Statement of Interest of the
`
`United States of America at 6–10, Matar v. Dichter, No. 05-cv-10270
`
`(S.D.N.Y. Nov. 17, 2006) (“Matar Statement”); see, e.g., Underhill v.
`
`Hernandez, 168 U.S. 250, 252 (1897); Mireskandari v. Mayne, 800 F.
`
`App’x 519, 519 (9th Cir. 2020); Doğan v. Barak, 932 F.3d 888, 893–94 (9th
`
`Cir. 2019); Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009); In re Estate of
`
`Ferdinand Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994); Chuidian v.
`
`Philippine Nat’l Bank, 912 F.2d 1095, 1106 (9th Cir. 1990).
`
`It is similarly undisputed that conduct-based immunity extends to
`
`private individuals when they act in their capacity as foreign agents.
`
`Although private agents seek immunity somewhat less often than foreign
`
`officials, courts have uniformly held that private individuals may assert
`
`conduct-based immunity. See Butters v. Vance Int’l, Inc., 225 F.3d 462,
`
`466 (4th Cir. 2000); Alicog v. Kingdom of Saudi Arabia, 79 F.3d 1145 (5th
`
`Cir. 1996) (table), affirming Alicog v. Kingdom of Saudi Arabia, 860 F.
`
`8
`
`

`

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`
`
`Supp. 379, 384–85 (S.D. Tex. 1994); Ivey ex rel. Carolina Golf Dev. Co. v.
`
`Lynch, 2018 WL 3764264, at *6–7 (M.D.N.C. Aug. 8, 2018); Moriah v.
`
`Bank of China, 107 F. Supp. 3d 272, 277–78 (S.D.N.Y. 2015). Whether
`
`the agent is public or private, “any act performed by the individual as an
`
`act of the State enjoys the immunity which the State enjoys.” Hazel Fox,
`
`The Law of State Immunity 455 (2d ed. 2008).
`
`B. The question in this appeal is whether the conduct-based
`
`immunity that undisputedly protects private individuals can also protect
`
`private entities. The panel held that private entities can never, under any
`
`circumstances, claim conduct-based immunity under the common law.
`
`Op. 18. That sweeping holding has exceptionally important implications
`
`for how the United States and other nations conduct core sovereign
`
`activities.
`
`Common-law immunity is “a matter of comity.” Rep. of Austria v.
`
`Altmann, 541 U.S. 677, 688 (2004); Siderman de Blake v. Rep. of
`
`Argentina, 965 F.2d 699, 718 (9th Cir. 1992) (“[F]oreign sovereign
`
`immunity ‘is rooted in two bases of international law, the notion of
`
`sovereignty and the notion of the equality of sovereigns.’”). For one
`
`nation’s courts to exercise jurisdiction over the official acts of another
`
`9
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`
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`nation’s agents “would destroy, not enhance that comity.” Belhas v.
`
`Ya’alon, 515 F.3d 1279, 1286 (D.C. Cir. 2008). The United States has thus
`
`warned that “personal damages actions against foreign officials could . . .
`
`trigger concerns about the treatment of United States officials abroad,
`
`and interfere with the Executive’s conduct of foreign affairs.” Brief for the
`
`United States as Amicus Curiae at 16, Mutond v. Lewis, No. 19-185 (U.S.
`
`May 26, 2020).
`
`This concern extends to private entities. “All sovereigns need
`
`flexibility to hire private agents to aid them in conducting governmental
`
`functions,” which includes hiring private entities when appropriate.
`
`Butters, 225 F.3d at 466. Indeed, the United States has relied on private
`
`agents to support its intelligence and military operations since the
`
`Revolutionary War. Glenn J. Voelz, Contractors and Intelligence: The
`
`Private Sector in the Intelligence Community, 22 Int’l J. Intelligence &
`
`CounterIntelligence 586, 588–91 (2009). Today, the United States often
`
`has “no choice but to use contractors for work that may be borderline
`
`‘inherently governmental.’” Office of the Director of National Intelligence,
`
`The U.S. Intelligence Community’s Five Year Strategic Human Capital
`
`Plan 6 (June 2006). Some 70,000 private contractors support U.S.
`
`10
`
`

`

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`
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`intelligence operations, with a quarter of those contractors “directly
`
`involved in core intelligence mission functions.” Voelz, supra, at 587. And
`
`“as many as sixty private firms provide[d] various security and
`
`intelligence-related services in Iraq and Afghanistan,” id. at 588,
`
`performing “tasks once performed only by military members” in locations
`
`“closer to the battlespace than ever before,” Lisa L. Turner & Lynn G.
`
`Norton, Civilians at the Tip of the Spear, 51 A.F. L. Rev. 1, 8 (2001).
`
`If U.S. courts categorically deny immunity to foreign states’ private
`
`entity agents, then those states can retaliate by exercising jurisdiction
`
`over lawsuits against the United States’ many contractors. Such lawsuits
`
`would implicate “[m]atters intimately related to foreign policy and
`
`national security,” which “are rarely proper subjects for judicial
`
`intervention.” Haig v. Agee, 453 U.S. 280, 292 (1981). That is why the
`
`United States has reserved the right to argue that its entity
`
`“contractor[s] should be sheltered by . . . sovereign immunity in an
`
`adjudication in a foreign or international court.” Brief for the United
`
`States as Amicus Curiae at 10 n.1, CACI Premier Tech., Inc. v. Shimari,
`
`No. 19-648 (U.S. Aug. 26, 2020). The panel decision takes that important
`
`argument away from the United States, exposing U.S. contractors to
`
`11
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`

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`
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`foreign suits designed to interfere with sovereign U.S. military and
`
`intelligence operations.
`
`C. The important question of whether conduct-based immunity
`
`can protect private entities has divided the federal Courts of Appeals.
`
`The Fourth Circuit has granted conduct-based immunity to a private
`
`entity, and the D.C. Circuit has allowed private entities to seek conduct-
`
`based immunity. The panel decision here is the only one to ever hold that
`
`private entities are categorically excluded from conduct-based immunity.
`
`First, the Fourth Circuit held in Butters v. Vance Int’l, Inc., 225 F.3d
`
`462, 466 (4th Cir. 2000), that a private entity was immune for providing
`
`security services to Saudi Arabia. Although the Fourth Circuit arguably
`
`described that immunity as deriving from the FSIA, it applied the test
`
`for conduct-based immunity, holding that private agents are immune
`
`“when following the commands of a foreign sovereign employer.” Id. And
`
`it held that private entities could receive that immunity because “courts
`
`define the scope of sovereign immunity by the nature of the function
`
`being performed—not by the office or the position of the particular
`
`employee involved.” Id. This holding, even if phrased in terms of FSIA
`
`immunity, is “instructive for . . . questions of common law immunity.”
`
`12
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`

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`
`
`Yousuf v. Samantar, 699 F.3d 763, 774 (4th Cir. 2012); see Ivey, 2018 WL
`
`3764264, at *2, 6–7 (interpreting Butters as granting conduct-based
`
`immunity); Moriah, 107 F. Supp. 3d at 277 & n.34 (same); Ved P. Nanda
`
`et al., 1 Litigation of International Disputes in U.S. Courts § 3:59 n.132
`
`(Dec. 2020 update) (same); Hazel Fox & Philippa Webb, The Law of State
`
`Immunity 444, 453 (3d ed. 2013) (same).
`
`More recently, the D.C. Circuit treated conduct-based immunity as
`
`available to private entities. Broidy Cap. Mgmt. LLC v. Muzin, 12 F.4th
`
`789 (D.C. Cir. 2021). In that case, private entities sought immunity for
`
`work they allegedly performed for Qatar. The D.C. Circuit rejected
`
`immunity for factual reasons, holding that the entities had not
`
`introduced the necessary evidence to show that they “act[ed] as [Qatar’s]
`
`agents to carry out any sovereign functions” or that “Qatar requested,
`
`approved, or even knew of the unlawful conduct.” Id. at 800. But the court
`
`treated entities as eligible for common-law immunity, id. at 802 (stating
`
`that common-law immunity applies to “private entities or individuals”),
`
`and the panel here criticized the D.C. Circuit for its “summary assertion
`
`that a private entity can seek immunity under the common law despite
`
`the FSIA.” Op. 16 n.5.
`
`13
`
`

`

`Case: 20-16408, 11/22/2021, ID: 12294725, DktEntry: 82-1, Page 19 of 23
`
`
`
`
`
`The panel decision here took a completely different approach,
`
`holding that private entities can never seek conduct-based immunity.
`
`These conflicting approaches to an exceptionally important question of
`
`law justify en banc review. Fed. R. Civ. P. 35(b)(1)(B); Cir. R. 35-1.
`
`II. The Panel’s Decision Conflicts with the Supreme Court’s
`Decision in Samantar.
`The panel here did not deny that, under the common law, private
`
`individuals could claim conduct-based immunity. But it held that the
`
`FSIA entirely displaces that common law with respect to entities,
`
`categorically excluding entities from conduct-based immunity. That
`
`holding is incorrect and inconsistent with the Supreme Court’s decision
`
`in Samantar.
`
`Congress passed the FSIA to codify only some aspects of common-
`
`law foreign sovereign immunity. It is a specific and narrow statute that
`
`governs only “whether a foreign state is entitled to sovereign immunity.”
`
`Samantar, 560 U.S. at 313 (emphasis added). Its definition of “foreign
`
`state” thus incorporates entities that, because they are state-owned
`
`“agenc[ies] or instrumentalit[ies],” are equivalent to foreign states. Id. at
`
`314; 28 U.S.C. § 1603(a)–(b). But that definition limits only which entities
`
`possess immunity as foreign states under the FSIA. Samantar held that
`
`14
`
`

`

`Case: 20-16408, 11/22/2021, ID: 12294725, DktEntry: 82-1, Page 20 of 23
`
`
`
`when a plaintiff sues a defendant that is not “a foreign state as the [FSIA]
`
`defines that term,” the FSIA has no force. Samantar, 560 U.S. at 325.
`
`Those suits are “governed by the common law.” Id.
`
`Private entities are not “foreign state[s] as the [FSIA] defines that
`
`term.” Id. Under Samantar, therefore, the FSIA has nothing to say about
`
`whether private entities may receive conduct-based immunity. That
`
`depends entirely on the common law, which Congress did not “intend[]
`
`the FSIA to supersede.” Id. at 320.
`
`The panel’s response to these points departed from how Samantar
`
`described both the FSIA and the common law. The panel reasoned that
`
`the FSIA does not extend foreign sovereign immunity to “actors that are
`
`neither sovereigns themselves nor . . . acting on behalf of a sovereign.”
`
`Op. 15. True enough, but that does not support the panel’s conclusion.
`
`Under Samantar, the FSIA addresses only entities that, because of their
`
`relationship to a foreign state, are “sovereigns themselves.” Id.; see
`
`Samantar, 560 U.S. at 314. The FSIA does not address entities or
`
`individuals that seek immunity because they “act[ed] on behalf of a
`
`sovereign.” Op. 15. Those claims for immunity are covered by the common
`
`law, which the FSIA did not disturb. Samantar, 560 U.S. at 320.
`
`15
`
`

`

`Case: 20-16408, 11/22/2021, ID: 12294725, DktEntry: 82-1, Page 21 of 23
`
`
`
`Because of the FSIA’s limited focus on “foreign state[s],” Samantar,
`
`560 U.S. at 325, the panel’s invocation of the expressio unius exclusio
`
`alterius canon is beside the point, Op. 15. It is no doubt correct that the
`
`FSIA “create[ed] a ‘comprehensive set of legal standards governing
`
`claims of immunity . . . against a foreign state or its political subdivisions,
`
`agencies or instrumentalities.’” Op. 15–16 (quoting Verlinden B.V. v. Cent.
`
`Bank of Nigeria, 461 U.S. 480, 487 (1983)) (emphasis added). That is why
`
`NSO has never claimed immunity under the FSIA. But the panel did not
`
`and could not deny that conduct-based immunity protects more than
`
`“foreign state[s] or [their] political subdivisions.” Id. And Samantar could
`
`not have been clearer that the FSIA simply does not apply to defendants
`
`that are not “foreign state[s] as the [FSIA] defines that term.” Samantar,
`
`560 U.S. at 325. If the FSIA does not apply, it cannot bar NSO’s claim of
`
`immunity.
`
`Because NSO is not a “foreign state” under the FSIA, Samantar
`
`forecloses the panel’s holding that the FSIA supersedes conduct-based
`
`immunity under the common law. That “conflict[] with a decision of the
`
`United States Supreme Court” supports en banc review. Fed. R. App. P.
`
`35(b)(1)(A).
`
`16
`
`

`

`Case: 20-16408, 11/22/2021, ID: 12294725, DktEntry: 82-1, Page 22 of 23
`
`
`
`CONCLUSION
`The Court should grant rehearing or rehearing en banc.
`
`
`
`November 22, 2021
`
`Respectfully submitted,
`/s/ Joseph N. Akrotirianakis
`Joseph N. Akrotirianakis
`KING & SPALDING LLP
`633 W. 5th Street
`Suite 1600
`Los Angeles, CA 90071
`jakro@kslaw.com
`Counsel for Appellants NSO
`Group Tech. Ltd. et al.
`
`
`17
`
`

`

`Case: 20-16408, 11/22/2021, ID: 12294725, DktEntry: 82-1, Page 23 of 23
`
`
`
`CERTIFICATE OF COMPLIANCE
`Pursuant to Fed. R. App. P. 32(g) and Cir. R. 40-1(a), I certify that:
`
`1. This document complies with the type-volume limitation of
`
`Circuit Rule 40-1(a) because it contains 3,160 words.
`
`2. This document complies with the typeface and type-style
`
`requirements of Fed. R. App. P. 32(a)(5) because it has been prepared in
`
`a proportionally spaced typeface using Century Schoolbook size 14-point
`
`font with Microsoft Word.
`
`Date: November 22, 2021
`
`/s/ Joseph N. Akrotirianakis
`Joseph N. Akrotirianakis
`
`Counsel for Appellants
`
`
`
`
`
`
`
`

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