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United States Court of Appeals Second Circuit Case 15-3151, Document 119, 01/29/2016, 1694669, Page1 of 147 15-3135(L) 15-3151(Con) United States Court of Appeals FOR THE Second Circuit EVA WALDMAN, REVITAL BAUER, individually and as natural guardian of plaintiffs YEHONATHON BAUER, BINYAMIN BAUER, DANIEL BAUER AND YEHUDA BAUER, SHAUL MANDELKORN, NURIT MANDELKORN, OZ JOSEPH GUETTA, minor, by his next friend and guardian VARDA GUETTA, VARDA GUETTA, individually and as natural guardian of plaintiff OZ JOSEPH GUETTA, NORMAN GRITZ, individually and as personal representative of THE ESTATE OF DAVID GRITZ, MARK I. SOKOLOW, individually and as a natural guardian of plaintiff JAMIE A. SOKOLOW, RENA M. SOKOLOW, individually and as a natural guardian of plaintiff JAIME A. SOKOLOW, JAMIE A. SOKOLOW, minor, by her next friends and guardian MARK I. SOKOLOW and (Additional Caption on the Reverse) On Appeal From The United States District Court for the Southern District of New York, Case No. 04-cv-0397 (GBD) CORRECTED BRIEF AND SPECIAL APPENDIX FOR DEFENDANTS-APPELLANTS Gassan A. Baloul Mitchell R. Berger SQUIRE PATTON BOGGS (US) LLP Pierre H. Bergeron 30 Rockefeller Plaza John A. Burlingame New York, New York 10112 Alexandra E. Chopin Telephone: (212) 872-9800 SQUIRE PATTON BOGGS (US) LLP 2550 M Street, NW Washington, DC 20037 Telephone: (202) 457-6000 Facsimile: (202) 457-6315 Attorneys for Defendants-Appellants Case 15-3151, Document 119, 01/29/2016, 1694669, Page2 of 147 RENA M. SOKOLOW, LAUREN M. SOKOLOW, ELANA R. SOKOLOW, SHAYNA EILEEN GOULD, RONALD ALLAN GOULD, ELISE JANET GOULD, JESSICA RINE, SHMUEL WALDMAN, HENNA NOVACK WALDMAN, MORRIS WALDMAN, ALAN J. BAUER, individually and as natural guardian of plaintiffs YEHONATHON BAUER, BINYAMIN BAUER, DANIEL BAUER AND YEHUDA BAUER, YEHONATHON BAUER, minor, by his next friend and guardians DR. ALAN J. BAUER AND REVITAL BAUER, BINYAMIN BAUER, minor, by his next friend and guardians DR. ALAN J. BAUER AND REVITAL BAUER, DANIEL BAUER, minor, by his next friend and guardians DR. ALAN J. BAUER AND REVITAL BAUER, YEHUDA BAUER, minor, by his next friend and guardians DR. ALAN J. BAUER AND REVITAL BAUER, RABBI LEONARD MANDELKORN, KATHERINE BAKER, individually and as personal representative of THE ESTATE OF BENJAMIN BLUTSTEIN, REBEKAH BLUTSTEIN, RICHARD BLUTSTEIN, individually and as personal representative of THE ESTATE OF BENJAMIN BLUTSTEIN, LARRY CARTER, individually and as personal representative of THE ESTATE OF DIANE ("DINA") CARTER, SHAUN COFFEL, DIANNE COULTER MILLER, ROBERT L COULTER, JR., ROBERT L. COULTER, SR., individually and as personal representative of THE ESTATE OF JANIS RUTH COULTER, CHANA BRACHA GOLDBERG, minor, by her next friend and guardian KAREN GOLDBERG, ELIEZER SIMCHA GOLDBERG, minor, by her next friend and guardian KAREN GOLDBERG, ESTHER ZAHAVA GOLDBERG, minor, by her next friend and guardian KAREN GOLDBERG, KAREN GOLDBERG, individually, as personal representative of THE ESTATE OF STUART SCOTT GOLDBERG/natural guardian of plaintiffs CHANA BRACHA GOLDBERG, ESTHER ZAHAVA GOLDBERG, YITZHAK SHALOM GOLDBERG, SHOSHANA MALKA GOLDBERG, ELIEZER SIMCHA GOLDBERG, YAAKOV MOSHE GOLDBERG,TZVI YEHOSHUA GOLDBERG, SHOSHANA MALKA GOLDBERG, minor, by her next friend and guardian KAREN GOLDBERG, TZVI YEHOSHUA GOLDBERG, minor, by her next friend and guardian KAREN GOLDBERG, YAAKOV MOSHE GOLDBERG, minor, by her next friend and guardian KAREN GOLDBERG, YITZHAK SHALOM GOLDBERG, minor, by her next friend and guardian KAREN GOLDBERG, NEVENKA GRITZ, sole heir of NORMAN GRITZ, deceased, Plaintiffs - Appellees - Cross - Appellants, v. PALESTINE LIBERATION ORGANIZATION, PALESTINIAN AUTHORITY, AKA PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY AND OR PALESTINIAN COUNCIL AND OR PALESTINIAN NATIONAL AUTHORITY, Defendants - Appellants - Cross - Appellees, YASSER ARAFAT, MARWIN BIN KHATIB BARGHOUTI, AHMED TALEB MUSTAPHA BARGHOUTI, AKA AL-FARANSI, NASSER MAHMOUD AHMED AWEIS, MAJID AL-MASRI, AKA ABU MOJAHED, MAHMOUD AL-TITI, MOHAMMED ABDEL RAHMAN SALAM MASALAH, AKA ABU SATKHAH, FARAS SADAK MOHAMMED GHANEM, AKA HITAWI, MOHAMMED SAMI IBRAHIM ABDULLAH, ESATATE OF SAID RAMADAN, DECEASED, ABDEL KARIM RATAB YUNIS AWEIS, NASSER JAMAL MOUSA SHAWISH, TOUFIK TIRAWI, HUSSEIN AL-SHAYKH, SANA'A MUHAMMED SHEHADEH, KAIRA SAID ALI SADI, ESTATE OF MOHAMMED HASHAIKA, DECEASED, MUNZAR MAHMOUD KHALIL NOOR, ESTATE OF WAFA IDRIS, DECEASED, ESTATE OF MAZAN FARITACH, deceased, ESTATE OF MUHANAD ABU HALAWA, deceased, JOHN DOES, 1-99, HASSAN ABDEL RAHMAN, Defendants. Case 15-3151, Document 119, 01/29/2016, 1694669, Page3 of 147 CORPORATE DISCLOSURE STATEMENT Pursuant to Circuit Rule 26.1, Counsel for Appellants the Palestinian Authority (“PA”) and the Palestine Liberation Organization (“PLO”) hereby certify the following: the PA and the PLO are not corporations and thus have no parent companies and no publicly held corporation that owns 10% or more of stock. Dated: November 10, 2015 /s/Gassan A. Baloul Gassan A. Baloul Attorney for Defendants-Appellants, The Palestinian Authority and The Palestine Liberation Organization -i- Case 15-3151, Document 119, 01/29/2016, 1694669, Page4 of 147 TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT ......................................................... i PRELIMINARY STATEMENT .............................................................................. 1 JURISDICTIONAL STATEMENT ......................................................................... 5 STATEMENT OF THE ISSUES PRESENTED ...................................................... 6 STATEMENT OF THE CASE ................................................................................. 7 I. THE PLO AND THE PA FUNCTION AS PALESTINE’S GOVERNMENT. ........................................................................................... 7 A. The PA and PLO Are Non-Sovereign, Foreign Entities Headquartered In Ramallah, Palestine. ................................................ 7 B. The PA Is the Governing Authority In Palestine. ................................ 8 C. The PLO Engages In Diplomacy Around The World On Behalf Of The Palestinian People; Defendants’ Only Relevant U.S. Contacts Stem From A Single, Small PLO Diplomatic Office. ........ 10 D. The Terrorist Attacks at Issue. ........................................................... 13 E. Defendants Timely Moved To Dismiss For Lack of Personal Jurisdiction Nine Separate Times. ...................................................... 14 F. The District Court Allowed Plaintiffs’ Experts To Summarize The Facts For The Jury, And Give Opinions On Intent, State Of Mind, And The Ultimate Issue. .......................................................... 19 G. The Verdict And Post-Trial Motions. ................................................ 21 SUMMARY OF THE ARGUMENT ..................................................................... 24 STANDARDS OF REVIEW .................................................................................. 27 ARGUMENT .......................................................................................................... 28 I. DAIMLER’S “AT HOME” TEST MANDATES DISMISSAL FOR LACK OF GENERAL JURISDICTION. ................................................... 28 -ii- Case 15-3151, Document 119, 01/29/2016, 1694669, Page5 of 147 A. The “Singular” Principle: There Is No Fact Dispute That Defendants’ Are “At Home” Only In Palestine. ................................ 29 B. The Proportionality Principle: The District Court Misapplied Daimler By Refusing to Examine Defendants’ Global Contacts. ..... 32 C. The Universality Principle: Daimler’s “At Home” Test Applies Equally To All Defendants. ................................................................ 34 D. The “Exceptional” Principle: The District Court Misapplied Daimler In Holding That Defendants Are The “Exceptional” Case. ................................................................................................... 39 E. The District Court Misapplied Daimler By Shifting the Burden of Proof to Defendants And Changing The Test. ............................... 42 II. THERE IS NO SPECIFIC JURISDICTION BECAUSE THERE IS NO SUBSTANTIAL CONNECTION BETWEEN THE ATTACKS AND THE UNITED STATES GIVING RISE TO PLAINTIFFS’ CLAIMS; THE D.C. COURTS HAVE ALREADY REJECTED PLAINTIFFS’ THEORY OF SPECIFIC JURISDICTION. ........................ 45 A. Defendants Engaged In No Claim-Related Activity In or Directed At the United States. ............................................................ 46 B. Three Federal Courts Rejected In Parallel Cases The Same Specific Jurisdiction Theory Advanced By Plaintiffs Here. .............. 48 III. THE TRIAL COURT ALLOWED ULTIMATE-ISSUE EXPERTS TO SUMMARIZE THE EVIDENCE AND CONJECTURE AS TO MENTAL STATES. ..................................................................................... 50 A. The District Court Is Charged With Stopping Experts From Summarizing The Evidence And Offering Improper Opinions. ........ 52 B. The District Court Allowed Plaintiffs’ Experts To Narrate Speculative Stories To The Jury That Blamed The PA For The Attacks. ............................................................................................... 54 C. The District Court Improperly Allowed Plaintiffs’ Experts To Testify That The PA’s Social Welfare Programs Cause Terrorism, Despite The Lack Of Any Data or Methodology. ............ 62 -iii- Case 15-3151, Document 119, 01/29/2016, 1694669, Page6 of 147 D. Plaintiffs’ Heavy Reliance On The Improper Expert Testimony In Closing Arguments Demonstrates The Need For A New Trial. ..................................................................................................
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