Dada v. NSO Group Technologies Limited

Background

The plaintiffs are journalists and others who write, produce, and publish El Faro, a digital newspaper based in El Salvador. They alleged that NSO Group Technologies Limited and Q Cyber Technologies Limited—together, NSO—supplied Pegasus and other software that hackers used to take remote control of smartphones and access information such as texts, calls, location data, and stored files.

The plaintiffs alleged that their devices were attacked in 2020 and 2021 as part of an effort to undermine independent journalism in El Salvador. Most of the alleged attacks occurred in El Salvador while plaintiffs covered Salvadoran news. One attack involved an El Faro correspondent in Washington, D.C. The plaintiffs sued under the Computer Fraud and Abuse Act, the California Comprehensive Computer Data Access and Fraud Act, and California tort theories involving interference with personal property and private affairs.

Motion and Legal Standard

NSO moved to dismiss under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), raising personal-jurisdiction and pleading arguments. Its main argument was forum non conveniens, a doctrine that allows a court to dismiss when another adequate forum is available and the private and public interests favor litigating there.

The court explained that NSO had to show both an adequate alternative forum and that the relevant private and public-interest factors favored dismissal. Private-interest factors include access to evidence, witness availability, and the cost and efficiency of trial. Public-interest factors include local interest, jury burden, court congestion, and the court’s familiarity with the governing law.

Court’s Analysis

The court found Israel to be an adequate alternative forum because NSO stated that, as an Israeli citizen, it was subject to legal process there. NSO also raised El Salvador as another possible forum, but the parties gave that possibility little attention.

The private-interest factors favored Israel or elsewhere. NSO and its relevant witnesses and evidence were in Israel, while the plaintiffs lived and worked in El Salvador during the relevant period, except for one plaintiff in Washington, D.C. The plaintiffs did not show that significant witnesses or evidence were located in the Northern District of California. The court also rejected reliance on the location of possible Apple servers and on other lawsuits against NSO as reasons to keep this case in California.

The public-interest factors also favored dismissal. The court found that the plaintiffs had not shown a local California interest in the alleged events, which involved foreign plaintiffs, a defendant in Israel, and conduct occurring primarily in El Salvador. The court also concluded that imposing a lengthy trial about foreign events on a local jury would make little sense and that plaintiffs had not shown that trial in California would be faster or less expensive.

The court distinguished an earlier decision involving Apple, where California was Apple’s home forum and the claims concerned alleged hacking of Apple servers and devices located there. The court found this case materially different because neither side had ties to the Northern District of California connected to the alleged conduct.

Ruling

Judge Donato granted dismissal on forum non conveniens grounds, dismissed the case, and ordered it closed. The court did not decide NSO’s personal-jurisdiction or other dismissal arguments, and it did not reach the merits of the plaintiffs’ statutory or tort claims. The court stated that nothing in the record showed that amendment could overcome forum non conveniens, and the plaintiffs had not requested permission to amend. The opinion does not state that the dismissal was with or without prejudice.