Marlene,
In preparation for setting up a call with Gil and David, please find below a summary of the proceedings and the current procedural posture in
Hirshfeld v. Bank of China.
I've attached the transcript of the pre-motion hearing, in case you'd like to review it. The transcript sets out the parties' preliminary arguments in the case and previews their intentions moving forward quite well. It also makes clear the Court's skepticism
of BoC's pending motion for judgment on the pleadings.
I'll have Miri check Gil and David's availability for a call early this week.
CURRENT PROCEDURAL POSTURE
BoC's motion for judgment on the pleadings is fully briefed as of 22 February 2019. John assumed that oral argument would be scheduled for sometime in March, but the Court has yet to schedule oral argument on the motion (and may, theoretically at least, choose
not to: "A party may in a motion or opposition request an oral hearing, but its allowance shall be within the discretion of the Court." Local Rule 7(f)).
Recall that discovery has been stayed during the pendency of BoC's motion. If BoC loses the motion—which is not unlikely, given the skepticism the court expressed regarding BoC's motion at the outset—the court will likely permit discovery to begin, as the denial
of a motion for judgment on the pleadings is considered interlocutory and is generally not immediately appealable. BoC could move for permission to file an interlocutory appeal, but such motions are rarely granted.
Once the discovery phase begins, the sides will issue requests for production and other discovery requests, each side will provide written responses to the requests, and the sides will then likely litigate the appropriate scope of discovery.
SUMMARY OF PROCEEDINGS
Complaint
The Hirshfelds unsuccessfully attempted to intervene in the Wultz/Moriah litigation after a settlement had already been reached in that case. Following the dismissal of the Wultz/Moriah case, the Hirshfelds filed their own suit on 5 March 2018.
Answer
Rather than moving to dismiss, on 16 July 2018 Bank of China filed an 180 page Answer. In its Answer, Bank of China denied the allegations in the complaint, set forth its legal defenses, and asked the court for judgment in BoC’s favor.
The Answer made no reference to the Washington statement, but attached numerous other exhibits.
Pre-Motion Conference and Stay of Discovery
On 22 August 2018 Judge Katherine Polk Failla held a pre-motion conference in which the parties discussed a number of issues, including 1) plaintiffs' intention to file an amended complaint, 2) BoC's intention to move for judgment on the pleadings (a Rule 12(c)
motion), and 3) whether Plaintiffs should receive all of the discovery from the previous litigation, or whether discovery should be stayed pending a decision on BoC's motion.
During the hearing, it was agreed that Plaintiffs would file their amended complaint by September 21, and BoC would then file an amended answer and move for judgment on the pleadings. Judge Failla also held that, in accordance with her general practice,
discovery would be stayed pending a decision on the Rule 12(c) motion (Trans. Of Pre-Motion Hearing, 28:25-29:5), however she expressed skepticism that BoC's motion would succeed:
"I'm not deciding anything, but Mr. Saperstein, you can understand from the discussion we've had, that
I am skeptical that this motion for judgment on the pleadings will succeed. We'll see. I will certainly listen to every argument that you make, but I do want you to understand the concerns that I have and that I believe I have outlined in this
conference." (Trans. Of Pre-Motion Hearing, 29:6-12).
Amended Complaint and Amended Answer
Plaintiffs filed an amended complaint on 21 September 2018, and BoC filed an amended answer on 2 November 2018. In its amended answer, BoC still made no mention of the Washington Statement.
Motion for Judgment on the Pleadings
On 18 December 2018 BoC filed its Rule 12(c) motion for judgment on the pleadings, asking the court to dismiss the case on four separate grounds, arguing:
First, that the political question doctrine (PQD) bars Plaintiffs’ claims.
Second, that the Totten rule (regarding state secrets) bars Plaintiffs’ claims.
Third, that the Court lacks personal jurisdiction over BoC. Fourth, that Plaintiffs fail to state cognizable claims under the Anti-Terrorism Act.
With respect to the PQD in particular, Boc argues that "in order for Plaintiffs to establish their allegations—to the extent they even can—they will
require evidentiary cooperation from the Israeli and PRC governments. However, both governments made it clear that they will not produce documents or
allow government officials to testify about matters concerning national security, international relations or international terrorism." In support of this this contention,
BoC cited the policy articulated on the Ministry of Justice's webpage entitled "Requesting Evidence of Israeli Officials in Connection with Civil Litigation Abroad". (Note that John Bellinger is of the view that BoC's argument is not a proper invocation of
the PQD, and he would be "very surprised" if the judge dismissed on this basis.)
On 29 January 2019 Plaintiffs filed their opposition to BoC's motion, raising numerous arguments including refuting the applicability of the Political Question Doctrine and the
Totten Rule, disputing BOC's assertion that the Court lacks personal jurisdiction over it, and contending that the Amended Complaint sufficiently alleges both BOC's primary liability under the Antiterrorism Act ("ATA"), and BOC's secondary liability
under the ATA (as amended by JASTA) for conspiracy and aiding and abetting Hamas in the murder of Yonadav Hirshfeld.
Plaintiffs' central contentions relating specifically to Israel and issues of discovery were as follows: 1) the "stipulations of fact" signed by plaintiffs in prior lawsuits against BOC—wherein the plaintiffs conceded that they lacked proof of BOC's liability—were
executed in connection with settlement agreements, and are not binding on the current plaintiffs; 2) the fact that Israel and China resisted producing discovery in prior lawsuits does not mean that they will similarly resist producing materials in the current
lawsuit; 3) the previous decision to quash the subpoenas to take discovery from Israeli officials is not binding on the current plaintiffs; and 4) even if Israel and China fail to change their positions with respect to providing discovery materials, the discovery
materials BOC has already produced in prior litigations—much of which is currently under seal, but which should be made available to the plaintiffs in discovery—will support plaintiffs' claims.
With respect to BoC's reliance on the policy articulated on the MoJ webpage, Plaintiffs argued that the webpage was outside the pleadings and therefore anything on such webpage was inadmissible hearsay, and in any event the "so-called 'policy,' if it exists
at all, is not absolute."
BoC filed its reply brief on 22 February 2019, disputing each of Plaintiffs' counterarguments. With respect to the MoJ webpage in particular, BoC argued that "[c]ontrary to Plaintiffs’ assertion . . . the Court can take judicial notice of Israel’s MOJ Policy
posted on the government’s website. See United States v. Broxmeyer, 699 F.3d 265, 296 n.32 (2d Cir. 2012) (judicial notice may be taken of the websites of foreign governments)."
The motion is now fully briefed, and the next step is either oral argument, or a decision by the court.
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Arie Peled
Foreign& Counter-Terrorism Litigation Department |
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Department of the Deputy Attorney General (international Law) |
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Ministry of Justice |
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Office: + 972 (0)3 763 4611 |
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Fax: +972 (0)2 646 7799 |