`
`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’ MOTION TO STAY THE MANDATE PENDING
`FILING OF A PETITION FOR A WRIT OF CERTIORARI
`
`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
`50 California Street
`Suite 3300
`San Francisco, CA 94111
`mnoller@kslaw.com
`
`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: January 12, 2022
`
`
`
`Case: 20-16408, 01/12/2022, ID: 12338393, DktEntry: 88, Page 2 of 20
`
`TABLE OF CONTENTS
`Introduction ............................................................................................... 1
`Standard .................................................................................................... 3
`Argument ................................................................................................... 4
`I. NSO’S Petition for Certiorari Will Present a Substantial
`Question. ........................................................................................ 4
`A. This Court Resolved an Important Question That Has
`Divided the Courts of Appeals. ............................................... 4
`B. The Court’s Decision Conflicts with Samantar. ..................... 9
`II. Good Cause Exists for a Stay Because NSO Claims an
`Immunity from Suit. .................................................................... 12
`Conclusion ............................................................................................... 14
`Certificate of Compliance ........................................................................... 15
`
`
`
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`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Broidy Cap. Mgmt. LLC v. Muzin,
`12 F.4th 789 (D.C. Cir. 2021)............................................................ 8, 9
`Bryant v. Ford Motor Co.,
`886 F.2d 1526 (9th Cir. 1989) ............................................................... 3
`Butters v. Vance Int’l, Inc.,
`225 F.3d 462 (4th Cir. 2000) ......................................................... 5, 7, 8
`Cassirer v. Kingdom of Spain,
`Nos. 06-56325, 06-56406 (9th Cir. Oct. 29, 2010) .............................. 13
`Compania Mexicana de Aviacion, S.A. v. U.S. Dist. Ct.,
`859 F.2d 1354 (9th Cir. 1988) ............................................................. 12
`Doğan v. Barak,
`932 F.3d 888 (9th Cir. 2019) ............................................................... 12
`Farhang v. Indian Inst. of Tech.,
`No. 14-15601 (Aug. 30, 2016) .......................................................... 3, 13
`Haig v. Agee,
`453 U.S. 280 (1981) ............................................................................... 6
`Ivey for Carolina Golf Dev. Co. v. Lynch,
`2018 WL 3764264 (M.D.N.C. Aug. 8, 2018) ......................................... 8
`Moriah v. Bank of China Ltd.,
`107 F. Supp. 3d 272 (S.D.N.Y. 2015) .................................................... 8
`Peterson v. Islamic Rep. of Iran,
`627 F.3d 1117 (9th Cir. 2010) ......................................................... 2, 13
`Rep. of Austria v. Altmann,
`541 U.S. 677 (2004) ............................................................................... 4
`
`ii
`
`
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`
`
`Sachs v. Rep. of Austria,
`No. 11-15458 (9th Cir. Dec. 16, 2013) ................................................ 13
`Samantar v. Yousuf,
`560 U.S. 305 (2010) ............................................................. 2, 10, 11, 12
`Siderman de Blake v. Rep. of Argentina,
`965 F.2d 699 (9th Cir. 1992) ................................................................. 5
`United States v. Pete,
`525 F.3d 844 (9th Cir. 2008) ................................................................. 3
`Yousuf v. Samantar,
`699 F.3d 763 (4th Cir. 2012) ................................................................. 8
`Statutes and Rules
`28 U.S.C. § 1603 ...................................................................................... 10
`Cir. R. 41-1 ............................................................................................. 3, 4
`Fed. R. App. P. 41(d)(2) ................................................................... passim
`S. Ct. R. 10 ....................................................................................... 4, 9, 12
`Other Authorities
`Brief for United States as Amicus Curiae, CACI Premier
`Tech., Inc. v. Shimari, No. 19-648 (U.S. Aug. 26, 2020) ...................... 7
`Brief for the United States as Amicus Curiae, Mutond v.
`Lewis, No. 19-185 (U.S. May 26, 2020) ................................................ 5
`Hazel Fox & Philippa Webb, The Law of State Immunity 444
`(3d ed. 2013) .......................................................................................... 8
`Lisa L. Turner & Lynn G. Norton, Civilians at the Tip of the
`Spear, 51 A.F. L. Rev. 1, 8 (2001) ......................................................... 6
`Office of the Director of National Intelligence, The U.S.
`Intelligence Community’s Five Year Strategic Human
`Capital Plan 6 (June 2006) ................................................................... 6
`
`iii
`
`
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`
`
`Revolutionary War. Glenn J. Voelz, Contractors and
`Intelligence: The Private Sector in the Intelligence
`Community ........................................................................................ 5, 6
`Ved P. Nanda et al., 1 Litigation of International Disputes in
`U.S. Courts § 3:59 n.132 (Dec. 2020 update) ........................................ 8
`
`iv
`
`
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`
`
`INTRODUCTION
`Appellants (collectively, “NSO”) move this Court to stay the
`
`issuance of its mandate pending the filing and resolution of a petition for
`
`writ of certiorari with the Supreme Court.1
`
`In its opinion in this case, this Court became the first to hold that
`
`private entities can never invoke the common-law doctrine—known as
`
`“conduct-based immunity”—that protects agents of foreign sovereigns
`
`from suit in U.S. courts. To reach that conclusion, this Court adopted a
`
`sweeping position that no other court has adopted: that the Foreign
`
`Sovereign Immunities Act (“FSIA”) entirely supplants common-law
`
`immunity for entities. The Court denied rehearing on January 6, 2022.
`
`NSO intends to file a petition for certiorari, and this Court should
`
`stay its mandate until the Supreme Court resolves NSO’s petition. That
`
`petition will “present a substantial question” justifying a stay, Fed. R.
`
`App. P. 41(d)(2), because this Court’s resolution of an important federal
`
`question created a division among the federal Courts of Appeals. The
`
`Court’s answer to that question—that private entities can never seek
`
`
`1 Counsel for Appellees has informed counsel for NSO that Appellees
`oppose this motion.
`
`
`
`
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`
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`conduct-based immunity—is important because it undermines the
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`United States’ and other countries’ ability to employ private contractors
`
`to assist in performing sovereign activities, and it establishes a precedent
`
`that could expose the United States’ tens of thousands of contractors to
`
`lawsuits in foreign courts for conduct undertaken on behalf of the United
`
`States. The Court’s decision also departs from decisions of the Fourth and
`
`D.C. Circuits, both of which acknowledged that private entities may
`
`assert conduct-based immunity in some circumstances. And the Court’s
`
`decision conflicts with Samantar v. Yousuf, 560 U.S. 305 (2010), which is
`
`best read to hold that the FSIA does not displace common-law conduct-
`
`based immunity for defendants that are not foreign states.
`
`A stay is particularly important here because without a stay, NSO
`
`will have to litigate the case while its petition for certiorari is pending.
`
`That would effectively deprive NSO of the immunity to which it claims to
`
`be entitled by imposing the “burdens of litigation” that sovereign
`
`immunity is designed to avoid. Peterson v. Islamic Rep. of Iran, 627 F.3d
`
`1117, 1127 (9th Cir. 2010) (quoting Foremost-McKesson, Inc. v. Islamic
`
`Rep. of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990)). Preventing that result
`
`creates “good cause for a stay.” Fed. R. App. P. 41(d)(2). This Court has
`
`2
`
`
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`
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`recognized as much by staying its mandate in other cases involving
`
`claims of foreign sovereign immunity. E.g., Farhang v. Indian Inst. of
`
`Tech., No. 14-15601 (Aug. 30, 2016), Dkt. 58. It should do the same here.
`
`STANDARD
`Under Federal Rule of Appellate Procedure 41(d)(2), the Court
`
`should stay its mandate when a petition for certiorari “would present a
`
`substantial question” and “there is good cause for a stay.” The moving
`
`party “need not demonstrate that exceptional circumstances justify a
`
`stay.” Bryant v. Ford Motor Co., 886 F.2d 1526, 1528 (9th Cir. 1989). To
`
`the contrary, this Court “often” stays its mandate while a party “s[eeks]
`
`certiorari from the Supreme Court.” United States v. Pete, 525 F.3d 844,
`
`850 (9th Cir. 2008). The Court’s rules thus indicate that a stay will be
`
`denied only when the petition “would be frivolous or filed merely for
`
`delay.” Cir. R. 41-1.
`
`If this Court stays its mandate, the stay will continue until the
`
`expiration of the deadline to file a petition for certiorari or “until the
`
`Supreme Court’s final disposition” of the petition, whichever is later. Fed.
`
`R. App. P. 41(d)(2).
`
`3
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`
`
`ARGUMENT
`I. NSO’S Petition for Certiorari Will Present a Substantial
`Question.
`This Court should stay its mandate because NSO’s petition for
`
`certiorari will “present a substantial question.” Fed. R. App. P. 41(d)(2).
`
`This Court’s decision implicates several of “the reasons the [Supreme]
`
`Court considers” when granting review. S. Ct. R. 10. Specifically, the
`
`decision “decided an important federal question” that has divided the
`
`federal Courts of Appeals and that “has not been, but should be, settled
`
`by th[e] [Supreme] Court.” S. Ct. R. 10(a), (c). This Court’s decision also
`
`“conflicts with” Samantar, a “relevant decision[] of” the Supreme Court.
`
`S. Ct. R. 10(c). These factors show that NSO’s petition for certiorari will
`
`not be “frivolous or filed merely for delay.” Cir. R. 41-1.
`
`A. Whether Private Entities May Seek Conduct-Based
`Immunity Is an Important Question That Has Divided
`the Courts of Appeals.
`1. Whether private entities may seek common-law conduct-
`
`based immunity is an important federal question with significant
`
`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), “rooted in . . . the notion
`
`4
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`
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`of sovereignty and the notion of the equality of sovereigns,” Siderman de
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`Blake v. Rep. of Argentina, 965 F.2d 699, 718 (9th Cir. 1992) (cleaned up).
`
`For that reason, denying immunity to foreign agents in U.S. courts could
`
`lead foreign courts to deny immunity to the United States’ agents in
`
`similar circumstances. Elsewhere, the United States warned that
`
`“personal damages actions against foreign officials” in U.S. courts 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 the private agents of sovereigns, including
`
`private entities. “All sovereigns need flexibility to hire private agents to
`
`aid them in conducting governmental functions,” which includes hiring
`
`private entities. Butters v. Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir.
`
`2000). Indeed, the United States has relied on private contractors 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
`
`5
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`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. 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 might 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 left open the possibility that its entity “contractor[s]
`
`should be sheltered by . . . sovereign immunity in an adjudication in a
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`6
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`
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`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). This Court has taken that important argument away from
`
`the United States, potentially exposing U.S. contractors to foreign suits
`
`designed to interfere with sensitive U.S. military and intelligence
`
`operations.
`
`2.
`
`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. This Court’s decision, in contrast, is the first ever to
`
`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 from claims
`
`arising from its provision of 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
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`private agents are immune “when following the commands of a foreign
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`7
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`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.” Yousuf v. Samantar, 699 F.3d 763, 774 (4th Cir.
`
`2012); see Ivey for Carolina Golf Dev. Co. v. Lynch, 2018 WL 3764264, at
`
`*2, 6–7 (M.D.N.C. Aug. 8, 2018) (interpreting Butters as granting
`
`conduct-based immunity); Moriah v. Bank of China Ltd., 107 F. Supp. 3d
`
`272, 277 & n.34 (S.D.N.Y. 2015) (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]
`
`8
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`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 private entities as eligible for common-law immunity, id. at 802
`
`(stating that common-law immunity applies to “private entities or
`
`individuals”), and this Court acknowledged the conflict by criticizing 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.
`
`
`
`This Court’s decision takes a brand-new approach, holding that the
`
`FSIA prevents private entities from ever seeking conduct-based
`
`immunity. This “conflict” over “an important federal question” should be
`
`resolved by the Supreme Court to provide a uniform answer throughout
`
`the United States. S. Ct. R. 10(a). NSO’s petition for certiorari will thus
`
`present a “substantial question,” justifying a stay of the mandate. Fed.
`
`R. App. P. 41(d)(2).
`
`B. This Court’s Decision Conflicts with Samantar.
`This Court did not deny that, under the common law, private
`
`individuals can 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
`
`9
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`
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`incorrect and difficult to reconcile 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
`
`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.
`
`10
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`This Court’s response to these points departed from how Samantar
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`described both the FSIA and the common law. The Court 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 Court’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.
`
`Because of the FSIA’s limited focus on “foreign state[s],” Samantar,
`
`560 U.S. at 325, the Court’s invocation of the expressio unius exclusio
`
`alterius canon is mistaken, 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 Court did not and
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`11
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`could not deny that conduct-based immunity protects more than “foreign
`
`state[s] or [their] political subdivisions, agencies or instrumentalities.”
`
`Id. And Samantar stated that the FSIA 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.
`
`Samantar is in considerable tension with the Court’s holding that
`
`the FSIA supersedes conduct-based immunity under the common law for
`
`a private entity that is not a “foreign state” under the FSIA. That
`
`“conflict[] with [a] relevant decision[]” of the Supreme Court, S. Ct. R.
`
`10(c), means NSO’s petition for certiorari will present a substantial
`
`question justifying a stay of the mandate, Fed. R. App. P. 41(d)(2).
`
`II. Good Cause Exists for a Stay Because Conduct-Based
`Immunity Is an Immunity from Suit.
`The nature of NSO’s immunity defense provides “good cause” to
`
`stay this Court’s mandate. Id. As the Court acknowledged in its decision,
`
`NSO claims “an immunity from suit.” Op. 8; accord Doğan v. Barak, 932
`
`F.3d 888, 895 (9th Cir. 2019). Such an “immunity from suit . . . is
`
`effectively lost if a case is erroneously permitted to go to trial.” Compania
`
`Mexicana de Aviacion, S.A. v. U.S. Dist. Ct., 859 F.2d 1354, 1356 (9th Cir.
`
`12
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`
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`1988). Therefore, if NSO is forced to litigate this case in the district court
`
`while its petition for certiorari is pending, it will have been deprived of
`
`its immunity from suit even if the Supreme Court ultimately reverses
`
`this Court’s decision.
`
`To avoid that unjust result, the Court should stay its mandate and
`
`spare NSO from the “burdens of litigation,” Peterson, 627 F.3d at 1127,
`
`until the Supreme Court resolves its petition for certiorari. That is the
`
`approach this Court has taken in other cases involving claims of foreign
`
`sovereign immunity. See, e.g., Farhang, No. 14-15601 (Aug. 30, 2016),
`
`Dkt. 58 (order staying mandate); Sachs v. Rep. of Austria, No. 11-15458
`
`(9th Cir. Dec. 16, 2013), Dkt. 61 (same); Cassirer v. Kingdom of Spain,
`
`Nos. 06-56325, 06-56406 (9th Cir. Oct. 29, 2010), Dkt. 94 (same). And it
`
`is the approach the Court should take here.
`
`13
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`
`
`CONCLUSION
`The Court should stay its mandate pending the resolution of NSO’s
`
`petition for certiorari.
`
`
`
`January 12, 2022
`
`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.
`
`
`14
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`CERTIFICATE OF COMPLIANCE
`Pursuant to Fed. R. App. P. 27 and 9th Cir. R. 27-1, I certify that:
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`This brief complies with the length limits of Fed. R. App. P. 27(d)(2)
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`and 9th Cir. R. 27-1(1)(d) because it is 14 pages long and contains 2,562
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`words, excluding the parts of the brief exempted by Fed. R. App. P.
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`27(a)(2)(B) and 32(f).
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`This brief complies with the typeface and type style requirements
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`of Fed. R. App. P. 27(d)(1)(E), 32(a)(5) and 32(a)(6) because this brief has
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`been prepared in Microsoft Word using 14-point Century Schoolbook font.
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`Date: January 12, 2022
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`/s/ Joseph N. Akrotirianakis
`Joseph N. Akrotirianakis
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`Counsel for Appellants
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`15
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