Supreme Court Grants Cert in Holocaust Expropriation Case

The Supreme Court granted cert this morning in Republic of Hungary v. Simon to consider further questions under the expropriation exception of the Foreign Sovereign Immunities Act. In Republic of Germany v. Philipp(2021), the Supreme  Court held that the expropriation exception does not apply to a government’s taking of the property of its own nationals. The Court remanded the Simon case for reconsideration in light of Philipp.

On remand, the DC Circuit held that some of the plaintiffs had adequately alleged that they were citizens of Czechoslovakia (rather than Hungary) and that plaintiffs were not required to trace funds directly to the expropriation of their property in order to satisfy the exceptions commercial nexus requirement. There are three questions presented by the petition:

(1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act.

(2) Whether a plaintiff must make out a valid claim that an exception to the Foreign Sovereign Immunities Act applies at the pleading stage, rather than merely raising a plausible inference.

(3) Whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act.