Havlish v. Bin-Laden

Background

The Havlish plaintiffs obtained a final judgment against the Taliban on October 16, 2012, and the opinion states that a large part of that judgment remains unpaid. The Doe plaintiffs obtained a 2020 judgment against the Taliban in the Northern District of Texas and registered it in the Southern District of New York; that judgment also remains unpaid. Both groups allege that Da Afghanistan Bank is an agent or instrumentality of the Taliban and have filed motions seeking to reach Da Afghanistan Bank assets held at the Federal Reserve Bank of New York.

The Havlish plaintiffs asked for court-authorized substitute service on the Taliban and additional service on Da Afghanistan Bank. The Doe plaintiffs initially sought additional service but later asked the court to approve, after the fact, service they had attempted through Twitter. The parties agreed that alternative service was appropriate but disagreed about the proper methods.

Service on the Taliban

Federal Rule of Civil Procedure 4(f)(3) permits a court to order service on a foreign defendant by means not prohibited by an international agreement. The court concluded that this was the only workable option because Afghanistan was not part of a relevant international convention, certified mail services were not operating there, and there was no government recognized by the United States that could assist with other service methods.

The court found that the Taliban had actual notice of the litigation. Its representatives had issued public statements showing awareness that Da Afghanistan Bank funds were being held and targeted in the case. Because publication was reasonably calculated to provide notice and was not barred by an international agreement, the court authorized the Havlish and Doe plaintiffs to publish notice in Al Quds Al-Arabi and The New York Times once a week for at least four weeks. The notices must comply with New York Civil Practice Law and Rules section 316. The parties may include a web address or QR code leading to the motion papers instead of publishing the full papers, and they may publish one combined notice covering both actions.

The court also authorized supplemental Twitter communications to accounts associated with Taliban spokespersons, including the accounts identified as @Abdullah_azzam7 and @IeaOffice, or other Twitter accounts reported to belong to Taliban spokespersons. The court denied the Doe plaintiffs’ request for retroactive approval of their earlier Twitter communications. It explained that courts generally do not permit court-authorized alternative service to be approved after it has already occurred. The court also found that Twitter alone, without prior service efforts or evidence that the Taliban used Twitter to receive communications, was not reasonably calculated to provide notice under the circumstances.

Supplemental service on Da Afghanistan Bank

The opinion does not decide whether Da Afghanistan Bank is an agent or instrumentality of a foreign state. The court concluded that the same practical service methods were available whether service was governed by Federal Rule of Civil Procedure 4 or by the Foreign Sovereign Immunities Act’s service provisions.

The court found that service by court order was the only workable method because Afghanistan lacked relevant service agreements, certified mail, and a recognized government able to assist with letters rogatory. The Havlish plaintiffs reported that they had personally served Dr. Shah Mehrabi, but the court did not decide whether that service was effective.

The court authorized the Havlish plaintiffs to provide supplemental notice to Da Afghanistan Bank through four methods: publication in Al Quds Al-Arabi and The New York Times once a week for four weeks; email to info@dab.gov.af; Twitter communication to @AFGCentralbank; and personal service at Da Afghanistan Bank’s offices in Ibni-Sina Watt, Kabul, if it could be carried out safely. The court stated that failure to complete personal service would not invalidate service achieved through the other authorized methods.

The relevant documents must generally include a translation into the foreign state’s official language. Because the court noted that Afghanistan might not have an official language, it allowed the Havlish plaintiffs to provide a translation in any language spoken by a substantial percentage of Afghanistan’s population. The Doe plaintiffs could use the same supplemental-service methods for Da Afghanistan Bank without filing another application if they later chose to do so.

Disposition

Judge Sarah Netburn granted in part the Doe and Havlish plaintiffs’ motion for alternative service on the Taliban and the Havlish plaintiffs’ motion for supplemental service on Da Afghanistan Bank. The Doe plaintiffs’ motion for nunc pro tunc, or retroactive, approval of their Twitter service was denied. The court directed the parties to serve the Taliban and Da Afghanistan Bank according to the procedures described in the order.