Sokolow v. Palestine Liberation Organization

Background

The plaintiffs brought the action in 2004 against the Palestine Liberation Organization and the Palestinian Authority, asserting claims under the Anti-Terrorism Act and various state laws. The defendants repeatedly moved to dismiss for lack of personal jurisdiction. An earlier decision finding general personal jurisdiction was later vacated by the Second Circuit, which held that exercising jurisdiction violated the Fifth Amendment’s Due Process Clause because neither defendant was “at home” in the United States and the terrorist attacks at issue were not sufficiently connected to the United States to support specific personal jurisdiction.

Congress later enacted the Promoting Security and Justice for Victims of Terrorism Act of 2019, or PSJVTA. The law provides that a defendant is considered to have consented to personal jurisdiction based on certain payments or on maintaining premises or conducting activities in the United States on behalf of the Palestinian Authority or Palestine Liberation Organization. In a March 10, 2022 decision, the court found that the factual requirements for the statute’s payments provision were met but held that exercising jurisdiction under that provision would be unconstitutional. The plaintiffs then sought reconsideration and asked the court to address the statute’s United States-activities provision.

Arguments and Analysis

The plaintiffs identified three categories of conduct that they said satisfied the United States-activities provision: providing consular services, communicating with prominent media and using social media, and maintaining an office in New York. The defendants did not dispute engaging in those types of activities, but argued that they fell within exclusions for official United Nations or United Nations-related activities. They also argued that the activities could not constitutionally establish personal jurisdiction.

The court did not decide whether the activities actually satisfied the statute’s factual requirements because it concluded that the provision was unconstitutional even if it applied. The court reasoned that the activities did not show an intention by the defendants to submit to lawsuits in the United States. In the court’s view, Congress could not make conduct legally count as consent merely by declaring that it did so. The court found that the activities—primarily document notarization and some media interactions—were insufficient to constitute meaningful consent to jurisdiction.

The court also rejected the plaintiffs’ alternative theories. It stated that “tag jurisdiction,” which is jurisdiction based on serving an individual while physically present in the forum, applies only to individuals. It found that the plaintiffs’ reliance on older cases about a defendant’s presence or business in the United States did not support jurisdiction here. The court also concluded that receiving benefits from United States activities did not establish consent to jurisdiction and noted that the Second Circuit had already held that the conduct underlying the plaintiffs’ claims was not sufficiently connected to the defendants’ later United States activities.

Ruling

The court held that exercising jurisdiction under either of the PSJVTA’s two jurisdiction-triggering provisions would violate due process and therefore determined that the statute was unconstitutional. Judge George B. Daniels denied the plaintiffs’ motion for reconsideration. The court also granted the defendants’ request to consider their sur-reply and directed the Clerk of Court to close the motions at ECF Nos. 1056 and 1068.