Supreme Court Petitions to Watch: November 2026

 

“Supreme Court” by Mark Fischer

is licensed under CC BY-SA 2.0

Petitions for writs of certiorari have been filed  in four cases previously covered by TLB.  The cases involve personal and in rem jurisdiction, as well as the application of the Foreign Sovereign Immunities Act (FSIA) and the Terrorism Risk Insurance Act (TRIA).

Havlish v. Taliban (and related cases) (FSIA and TRIA)

Judgment creditors in various cases against the Taliban have sought to enforce default judgments against $3.5 billion of frozen assets belonging to the Afghan central bank (Da Afghanistan Bank, or “DAB”).  Pre-judgment, plaintiffs also sought an attachment order for the same funds, which are held at the Federal Reserve Bank of New York.  The consolidated cases ask whether the DAB is entitled to foreign state immunity under the FSIA and, if so, whether the TRIA applies to blocked assets held in DAB’s name. A divided panel of the Second Circuit held that the funds are immune under the FSIA and that the TRIA does not apply. The court denied rehearing en banc in March 2026, over dissents by Judges Sullivan and Menashi.

The petition in Havlish v. Taliban (No. 26-292) challenges the Second Circuit’s holding that the TRIA only applies if the owner of the assets was an agency or instrumentality of a terrorist party at the time the assets were blocked. The petition in Owens v. Taliban (No. 26-294) asks whether courts should defer to the State Department in determining whether an entity is a foreign state entitled to immunity under the FSIA. They are listed for the Court’s November 13 conference. I previously wrote about the panel opinion and the denial of rehearing en banc.

Petersen v. Argentine Republic (FSIA)

Private investors in an Argentinian oil company (YPF) sued in the Southern District of New York following Argentina’s nationalization of part of the ownership in YPF.  Years of litigation ensued. The Second Circuit held in 2018 that the defendants were not immune from suit under the FSIA because the commercial activity exception applied.  The plaintiffs then won a $16.1 billion breach-of-contract judgment against Argentina in the district court.  The Second Circuit reversed in 2026, reasoning that expropriation – not breach of contract – was the appropriate framework for considering the merits of the claim under Argentine law. I have written about the tension between the FSIA and the merits decisions.  The cert petition (No. 26-442) questions whether a foreign state can avoid application of the FSIA by using its own law to channel expropriation claims into its own courts. Bill Dodge has filed an amicus brief supporting the petition.

Rodriguez v. Imperial Brands PLC (Helms-Burton and Personal Jurisdiction)

Two British companies that were sued under the Helms-Burton Act moved to dismiss on the grounds that the federal court in Florida lacked personal jurisdiction over them. The Eleventh Circuit reasoned that after Fuld v. Palestine Liberation Organization (2025), the Fifth Amendment does not require a “minimum contacts” analysis but held that there was no personal jurisdiction because it would impose an unreasonable burden on defendants. The cert petition (No. 26-416) asks whether the “burden-centered” Fourteenth Amendment reasonableness factors apply under the Fifth Amendment inquiry. Bill Dodge and Maggie Gardner have both critiqued the Eleventh Circuit’s decision.

Webuild S.p.A. v. Sociedad Concesionaria Metropolitana de Salud S.A.  (Quasi in rem jurisdiction)

A creditor seeking to enforce a $140 million Chilean arbitral award against the Italian contractor Astaldi sought to attach Webuild’s shares in a Delaware subsidiary, alleging that Webuild is Astaldi’s successor. The Third Circuit held that the district court could exercise quasi in rem jurisdiction to enforce the award without requiring “minimum contacts” with the forum state. I discussed the Court of Appeals decision here. In its application for an extension of time to file, Webuild argued that the decision conflicts with Shaffer v. Heitner (1977) and precedent from other circuits. Webuild’s cert petition is here.  Due process and in rem jurisdiction are kind of having a moment.

TLB will continue to cover these cases and the issues that they raise.