Foley v. Union De Banques Arabes Et Francaises

Background

On July 20, 2023, the court granted in part and denied in part Union de Banques Arabes et Françaises’ ("UBAF") motion to dismiss the plaintiffs’ claims. The court later stayed the case while awaiting developments in a Second Circuit appeal that might have affected the continuing viability of the legal authority relevant to the plaintiffs’ surviving turnover claims. That appeal was dismissed by stipulation without a decision changing that legal authority.

UBAF filed a notice of appeal from the earlier order and asked the court to reconsider that order, or alternatively to certify issues for an immediate appeal. The court also asked the parties whether the stay should continue. The plaintiffs argued that the earlier order was not appealable and that discovery could proceed even if some issues were on appeal. UBAF argued that the order was immediately appealable, that its appeal required a stay, and that the court should decide reconsideration before the appeal became effective.

Court’s Analysis

The court concluded that the earlier order was not immediately appealable. It explained that the Second Circuit does not generally recognize an immediate appeal from a denial of attachment immunity. The court distinguished the authority cited by UBAF because that case involved immunity from discovery in aid of execution, rather than immunity from attachment and execution. The court also rejected UBAF’s argument that the earlier order was an immediately appealable injunction, noting that the earlier order had not itself attached property or completed the required traditional analysis under the Foreign Sovereign Immunities Act.

The court declined to certify the issues for an interlocutory appeal under 28 U.S.C. § 1292(b). It therefore concluded that, to the extent UBAF’s appeal was improper, the appeal did not remove the court’s authority to allow discovery. The court further stated that execution immunity does not automatically include immunity from discovery in aid of execution, particularly discovery concerning assets outside the country. Even if the order were immediately appealable, the court said, the appeal would affect only the issues being appealed and would not eliminate jurisdiction over discovery related to execution.

The court accepted UBAF’s request to decide its reconsideration motion based on the parties’ premotion letters. It denied reconsideration because such a motion cannot be used simply to repeat arguments already decided. UBAF had repeated its arguments about the continued viability of the prior Second Circuit decision, international comity, and the separate-entity doctrine, but had not identified controlling decisions or facts that the court had overlooked and that could reasonably change its conclusion.

Disposition

The court lifted the stay, denied UBAF’s motion for reconsideration, declined to certify the case for appeal, directed UBAF to answer the complaint, and ordered the parties to proceed to discovery. The clerk was directed to terminate the motions identified as Documents 27 and 31. This order did not itself decide the ultimate merits of the plaintiffs’ turnover claims.