Case Brought by Jamal Khashoggi’s Widow Dismissed
October 30, 2023
Hanan Elatr Khashoggi sued Israeli spyware companies in connection with the death of her husband, journalist Jamal Khashoggi. A critic of the Saudi government, Khashoggi was killed in Istanbul, Turkey at the Saudi Arabian consulate. Last year, Judge John Bates (D.D.C.) dismissed a civil suit against Saudi Crown Prince Mohammed bin Salman on grounds of head of state immunity.
In her complaint, Ms. Khashoggi alleged that her phones were infiltrated by products designed, sold, and maintained by NSO Group Technologies Limited (“NSO Group”) and Q Cyber Technologies Limited (“Q Cyber”) (together “defendants” or “NSO Group”). Saudi Arabia and the United Arab Emirates (“UAE”) allegedly used defendants’ spyware to get information from the plaintiff’s phones. That information was used to track and eventually kill her husband. NSO group moved to dismiss based on foreign sovereign immunity, lack of personal jurisdiction, the act of state doctrine, forum non conveniens, extraterritorial application of state law, and failure to state a claim. Judge Leonie Brinkema (E.D. Va.) rejected NSO’s immunity argument, dismissed the case for lack of personal jurisdiction, and did not reach NSO’s other arguments.
NSO argued it enjoyed “derivative foreign sovereign immunity” because it was engaged in work on behalf of Saudi Arabia and the UAE. Those foreign states would be immune from suit under the Foreign Sovereign Immunities Act (FSIA), NSO argued, so it too should be entitled to immunity when it performed work on their behalf. The argument is based on a case from the Fourth Circuit holding that private U.S. contractor could claim immunity from suit for work on behalf of a foreign government. Whatever the merits of the reasoning with respect to a U.S. company – and it does not seem very convincing – Judge Brinkema concluded that the holding should not be extended to protect foreign private companies working on behalf of foreign governments. As the court correctly reasoned, the FSIA governs all foreign sovereign immunity claims raised by private entities, and NSO does not qualify as an organ (or an agency or instrumentality) of Saudi Arabia under the FSIA.
NSO’s argument may sound familiar. As covered on TLB, it advanced a very similar argument before the Ninth Circuit in WhatsApp Inc. v. NSO Group Techs. Ltd., a case cited by Judge Brinkema. NSO argued in What’s App that it was entitled to common law immunity as a foreign official. The Ninth Circuit reasoned convincingly that corporations are not entitled to foreign official immunity. The Supreme Court denied cert in What’s App earlier this year.
The court applied a three-part test to decide whether it had personal jurisdiction over the defendants: “(1) the extent to which the defendant purposefully availed itself of the privilege of conducting activities in the State; (2) whether the plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” The complaint alleged that the NSO Group “intentionally target[ed]” the plaintiff’s “devices in Virginia.” The intentional targeting of the plaintiff and her property in the forum state should satisfy this part of the test (in my view), but the factual allegations in this case had two problems. First, they did not include specific allegations about “how long and where plaintiff had been living in the district.” Thus the district court reasoned that the wrongful conduct by the defendants might have occurred when the plaintiff was overseas.
Second, the allegations did not sufficiently link NSO Group to the surveillance, especially considering NSO’s argument that it was the UAE and Saudi Arabia that actually used the spyware against the plaintiff. The district court noted that the “only direct contact alleged between NSO Group and Saudi Arabia and the UAE” was that NSO Group “licensed its technology to those sovereign nations” with the approval of the Israeli government. The court cited cases reasoning that even a defendant engaged in “aiding and abetting” the conduct of someone else that is purposefully directed at the forum state is not necessarily sufficient for personal jurisdiction purposes. For similar reasons, the court concluded that whatever conduct was purposefully directed at the forum state was not sufficiently related to the causes of action in the case.
The court also found that the exercise of jurisdiction would not be reasonable. Plaintiffs argued that Virginia has a strong interest in protecting its residents from foreign hackers and that the plaintiff would be unduly burdened if forced to bring her claims in Israel. The court disagreed. It emphasized the lack of connections between NSO and Virginia. NSO has no property, employees, or agents in Virginia; there are no witnesses or evidence in Virginia; and litigating in Virginia would make it difficult to conduct discovery.
The case underscores the fact-specific nature of the purposeful availment inquiry. The district court carefully parsed the specific allegations that might have linked NSO to the forum state and did not allow the plaintiffs to succeed based on general allegations.
It is also interesting for two additional reasons. First, the court did not need to address a question left open by both Daimler v. Bauman and OBB Personenverkehr v. Sachs: whether the contacts of a subsidiary (or an agent) can be imputed to the parent (or the principal) for the purposes of personal jurisdiction. The court did not mention this issue, but it did not need to because the alleged contacts were too minimal to support jurisdiction in any event.
Second, the case is interesting because the court reasoned that “the United States Supreme Court has also cautioned against extending state long arm statutes in an international context,” citing Asahi Metal Industry Co. v. Superior Court (1987). This reasoning is questionable. To the extent that personal jurisdiction is animated by interstate federalism, the doctrine has less purchase – not more – when the defendant is foreign. To the extent that the reasoning is animated by a special concern for the interests of Israel in this case, those concerns are at least arguably addressed through statutes like the FSIA and common law doctrines such as forum non conveniens and the act of state doctrine. There was no need for the court to incorporate this concern into the reasonableness analysis.