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Peterson v. Islamic Republic of Iran

United States Court of Appeals, Second Circuit

November 21, 2017

Deborah D. Peterson, et al., Plaintiffs-Appellants,
v.
Islamic Republic of Iran, Bank Markazi, AKA Central Bank of Iran, Banca UBAE, S.p.A., Clearstream Banking, S.A., JPMorgan Chase Bank, N.A., Defendants-Appellees.

          Argued: June 8, 2016

         The plaintiffs-appellants, judgment creditors of the Islamic Republic of Iran and Iran's Ministry of Intelligence and Security, seek to enforce their underlying judgments by obtaining the turnover of $1.68 billion in bond proceeds allegedly owned by Bank Markazi, Iran's central bank. The bond proceeds are allegedly held by Clearstream Banking, S.A., a Luxembourg bank that maintains accounts on behalf of both Bank Markazi and Banca UBAE, S.p.A., an Italian bank that engaged in financial transactions on behalf of Iran. The bond proceeds were processed in New York through JPMorgan Chase Bank, N.A. The plaintiffs dispute the nature and location of the bond proceeds, arguing that they are held as United States dollars in New York City and are therefore subject to the Court's execution jurisdiction. The plaintiffs also dispute whether several related non-turnover claims, including several fraudulent-conveyance claims, brought by the plaintiffs against these banks were released pursuant to settlement agreements resolving a previous dispute between some of these parties. In a single decision, the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge) granted the banks' motions to dismiss the complaint and for partial summary judgment for the defendants on all claims in dispute. We conclude that the settlement agreements released the plaintiffs' non-turnover claims with respect to some but not all of the banks. We also conclude that the assets at issue are in fact located abroad, but that those assets may nonetheless be subject to turnover under state law pursuant to an exercise of the court's in personam jurisdiction, inasmuch as the district court has the authority under New York State law to direct a non-sovereign in possession of a foreign sovereign's extraterritorial assets to bring those assets to New York State. Those assets will not ultimately be subject to turnover, however, unless the district court concludes on remand that (1) such in personam jurisdiction exists and (2) the assets, were they to be recalled, would not be protected from turnover by execution immunity. Accordingly, the district court's judgment is:

         AFFIRMED in part, VACATED in part, and REMANDED for further proceedings.

          Liviu VOGEL (James P. Bonner, Patrick L. Rocco, and Susan M. Davies, Stone Bonner & Rocco LLP, on the brief), Salon Marrow Dyckman Newman & Broudy LLP, New York, New York, for Plaintiffs-Appellants.

          Donald F. Luke (Bension D. De Funis, on the brief), Jaffe & Asher LLP, New York, New York, for Defendant-Appellee Bank Markazi, AKA Central Bank of Iran.

          UGO Colella (John J. Zefutie, Jr., on the brief), Thompson Hine LLP, New York, New York, for Defendant-Appellee Banca UBAE, S.p.A.

          Benjamin S. Kaminetzky (Gerald M. Moody, Jr., on the brief), Davis Polk & Wardwell LLP, New York, New York, for Defendant-Appellee Clearstream Banking, S.A.

          Steven B. Feigenbaum, Levi Lubarsky Feigenbaum & Weiss LLP, New York, New York, for Defendant-Appellee JPMorgan Chase Bank, N.A.

          Before: POOLER, Sack, and LOHIER, Circuit Judges. [**]

          Sack, Circuit Judge

         In this litigation, judgment creditors of the Islamic Republic of Iran ("Iran") attempt to execute on $1.68 billion in bond proceeds allegedly owned by Iran's central bank. The Supreme Court has instructed that in an execution proceeding concerning a foreign sovereign's assets, any defense predicated on foreign sovereign immunity must rise or fall on the text of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §§ 1330, 1602 et seq. See Republic of Argentina v. NML Capital, Ltd., __U.S.__, 134 S.Ct. 2250, 2256 (2014). In the same decision, the Court explicitly abrogated decades of pre-existing sovereign immunity common law in light of its background understanding that most courts lack jurisdiction to reach extraterritorial assets in any event. See id. at 2257. But that is not so in New York.

         The plaintiffs-appellants, judgment creditors of Iran and Iran's Ministry of Intelligence and Security ("MOIS"), obtained federal-court judgments against Iran and MOIS awarding the plaintiffs billions of dollars in compensatory damages. They now seek to enforce their judgments in part by executing on $1.68 billion in bond proceeds allegedly owned by Bank Markazi ("Markazi"), Iran's central bank. The plaintiffs allege that those bond proceeds were processed by and through a global chain of banks, specifically by Clearstream Banking, S.A. ("Clearstream") through JPMorgan Chase Bank, N.A. ("JPMorgan"), in the name of Banca UBAE, S.p.A. ("UBAE"), on behalf of Markazi (collectively, "the defendants" or "the defendant banks"). The plaintiffs further allege that the bond proceeds are denominated as United States dollars ("USD") and held in cash in Clearstream's account at JPMorgan in New York City, rendering the assets subject to this Court's jurisdiction and a turnover order.[1] The plaintiffs also asserted several related non-turnover claims against the defendant banks, alleging primarily that the defendants effected the foregoing transactions by means of fraudulent conveyances in violation of state law.

         The defendant banks respond that there is no cash to turn over: The bond proceeds are in fact recorded as book entries made in Clearstream's Luxembourg offices and reflected as a positive account balance showing a right to payment owed by Clearstream to Markazi through UBAE. The defendants argue that this fact is fatal to the plaintiffs' turnover claims because federal courts lack jurisdiction to order the turnover of a foreign sovereign's extraterritorial assets. Lastly, the defendants posit that the plaintiffs released their non-turnover claims in separate settlement agreements reached between several of the plaintiffs, on the one hand, and Clearstream or UBAE, on the other.

         In a single order, the district court (Katherine B. Forrest, Judge) granted the defendants' motions to dismiss and for partial summary judgment in favor of the defendants on all claims in dispute. We affirm that decision in part, vacate it in part, and remand for further proceedings.

         BACKGROUND

         The plaintiffs-appellants are, or represent persons who have been adjudicated in a federal court to be, victims of Iranian-sponsored terrorism. They obtained judgments from the United States District Court for the District of Columbia against Iran and MOIS pursuant to §§ 1605(a)(7) and 1605A of the FSIA, and were awarded a total of approximately $3.8 billion in compensatory damages. Confidential Appendix ("C.A."[2]) at 679-81. The plaintiffs have since registered their judgments with the United States District Court for the Southern District of New York, which enables them to seek partial enforcement of their judgments by obtaining an order compelling the turnover of approximately $1.68 billion in bond proceeds allegedly owned by Iran's central bank and held as cash in New York City. The plaintiffs' claims target four banks that were allegedly involved in processing those bond proceeds: JPMorgan, a financial institution organized under the laws of New York, id. at 679; Markazi, Iran's central bank, id. at 677; UBAE, an Italian bank that engaged in transactions on behalf of Iran, id. at 678; and Clearstream, a Luxembourg bank with which Markazi and UBAE opened customer accounts, id.

          The plaintiffs contend that through a series of fraudulent transactions, these banks managed to process billions of dollars in bond proceeds ultimately owed to Markazi. According to the plaintiffs, the fruit of those transactions is a pool of cash traceable to the Markazi-owned bond proceeds and held by Clearstream at JPMorgan in New York City. Because much of this dispute turns on the nature and location of the bond proceeds, we review the processing of those assets, and previous attempts to obtain turnover of similar assets, in some detail.

         1. Processing Markazi 's Bonds

         Like many large financial institutions, Markazi invests in foreign sovereign bonds. Id. at 701. Many of the bonds purchased by Markazi were issued pursuant to prospectuses that require the purchaser to receive interest and redemption payments in New York State. Id. at 555. Markazi has long engaged Clearstream, a Luxembourg bank that specializes in "the settlement and custody of internationally traded bonds and equities, " id. at 678, to facilitate that process. Clearstream uses correspondent accounts at banks in New York State, including JPMorgan and Citibank, N.A. ("Citibank"), to receive bond proceeds on behalf of its customers, including Markazi. Id. at 690. As Clearstream receives these cash payments in New York, it credits customer accounts based in Luxembourg with an equivalent positive amount. Id. at 685.

         In 1994, Markazi opened a direct account with Clearstream in Luxembourg. Id. at 117-18. Thereafter, Clearstream received bond payments into its New York-based JPMorgan correspondent account on behalf of Markazi; Clearstream then credited Markazi's account in Luxembourg with a corresponding right to payment. In 2008, apparently because of increasing scrutiny of Iranian financial transactions, Markazi stopped processing its bond proceeds through Clearstream directly and instead began doing so through an intermediary bank: UBAE. Id. at 699-700. In January 2008, UBAE opened a customer account with Clearstream in Luxembourg-account number 13061. Id. at 118-19. Shortly thereafter, Markazi arranged for Clearstream to transfer the Markazi account balance at Clearstream in Luxembourg to the UBAE account. Id. at 118, 434.

         Clearstream continued to receive bond proceeds in New York on behalf of Markazi, but pursuant to the terms of the documentation directing the Markazi account transfer, Clearstream credited UBAE account number 13061 with a corresponding right to payment. Id. at 701. In June 2008, apparently due to increasing attention, Clearstream notified UBAE that it had blocked UBAE account number 13061 and transferred the balance of that account to a "sundry blocked account" -account number 13675. Id. at 683-84. That account, which remains blocked, is at the center of the present dispute.

         2. Peterson I

         Clearstream has previously been the focus of an attempt by judgment creditors of Iran to obtain turnover of Markazi-linked assets. See generally Peterson v. Islamic Republic of Iran, No. io-cv-4518-KBF, 2013 WL 1155576, 2013 U.S. Dist. LEXIS 40470 (S.D.N.Y. Mar. 13, 2013) ("Peterson I"), aff'd, 758 F.3d 185 (2d Cir. 2014). Many, but not all, of the plaintiffs in the case at bar attempted in an earlier litigation to enforce part of their judgments by executing against approximately $2 billion in Markazi-owned bond proceeds allegedly held by Clearstream at Citibank in New York City. See C.A. at 671. Those plaintiffs successfully obtained a judgment from the United States District Court for the Southern District of New York (Katherine B. Forrest, Judge) ordering the turnover of $1.75 billion in cash denominated in USD and held in New York City by Clearstream at Citibank on behalf of Markazi and UBAE. Peterson I, 2013 WL 1155576, at *2, *35, 2013 U.S. Dist. LEXIS 40470, at *42, *138. The district court's decision in that case did not address the plaintiffs' related fraudulent-conveyance claims concerning an additional $250 million in bond proceeds allegedly transferred by Markazi and UBAE to UBAE's customer account at Clearstream in Luxembourg. See id. at *3-4, *28 n.14, 2013 U.S. Dist. LEXIS 40470, at *46-48, *117 n.15.

         While Markazi unsuccessfully appealed the district court's turnover order in Peterson I, [3] Clearstream and UBAE reached separate settlement agreements with the plaintiffs to resolve not only the Peterson I appeal but also the plaintiffs' then-pending fraudulent-conveyance claims. C.A. at 900-45 (Clearstream settlement agreement); id. at 1646-62 (UBAE settlement agreement).

         Of relevance here, the Clearstream settlement agreement released Clearstream from "any and all past, present or future claims or causes of action . . . whether direct or indirect" relating to:

any account maintained at Clearstream ... by or in the name of or under the control of any Iranian Entity ... or any account maintained at Clearstream or at any Clearstream Affiliate by or in the name of or under the control of UBAE, including, but not limited to, accounts numbered . . . 13061 . . . [or] 13675 ... or any asset or interest held in an Account in the name of an Iranian Entity . . . or . . . any transfer or other action taken by or at the direction of any Clearstream Party, Citibank, or any Iranian Entity, including any transfer or other action in any account, including a securities account or cash account or omnibus account or correspondent account maintained in Clear stream's name or under its control, that in any way relates to any Account or any Iranian Asset.

Id. at 903.

         The Clearstream settlement agreement did, however, reserve the following claims to the Peterson /plaintiffs:

Garnishee Actions. Notwithstanding the [claim release described above], the Covenant shall not bar any action or proceeding regarding (a) the rights and obligations arising under this Agreement, or (b) efforts to recover any asset or property of any kind, including proceeds thereof, that is held by or in the name, or under the control, or for the benefit of, Bank Markazi or Iran ... in an action against a Clearstream Party solely in its capacity as a garnishee (a "Garnishee Action.") Such a Garnishee Action may include, without limitation, an action in which a Clearstream Party is named solely for the purpose of seeking an order directing that a Clearstream Party perform an act that will have the effect of reversing a transfer between other parties that is found to have been a fraudulent transfer under any legal or equitable theory, provided however that such a Garnishee Action shall not seek an award of damages against a Clearstream Party.

Id. at 905 (emphasis omitted).

         The UBAE settlement agreement similarly released UBAE and its "beneficiaries" from "any and all liability, claims, causes of action, suits, judgments, costs, expenses, attorneys' fees, or other incidental or consequential damages of any kind, whether known or unknown, arising out of or related to the Plaintiffs' Direct Claims against UBAE, " except for those specifically listed in the agreement. Id. at 1648. The agreement defined "Plaintiffs' Direct Claims" as those brought in Peterson I "for damages against UBAE with regard to certain assets transferred prior to the initiation of the [t]urnover [a]ction and valued at approximately $250, 000, 000.00 . . . including, but not limited to, claims for fraudulent conveyance, tortious interference with the collection of a money judgment, and prima facie tort." Id. at 1646.

         The UB AE settlement agreement also contained a carve-out provision by which the "[p]laintiffs agree[d] that any future claim against UBAE for the Remaining Assets shall be limited to turnover only"; the plaintiffs "waive[d] all other claims against UBAE for any damages regarding the Remaining Assets whether arising in contract, tort, equity, or otherwise." Id. at 1648. The agreement defined "Remaining Assets" as "assets [that] remain in an account at Clearstream[] [in] a UBAE customer account, that are beneficially owned by Bank Markazi." Id. at 1647.

         3. Procedural History

         On December 30, 2013, the plaintiffs filed a complaint in the United States District Court for the Southern District of New York alleging that Clearstream held an additional $2.5 billion in Markazi-owned bond proceeds not at issue in Peterson I. See id. at 3, 28. On April 25, 2014, the plaintiffs filed an amended complaint specifically alleging that UBAE's "blocked sundry account" at Clear stream reflected a balance of approximately $1.68 billion, and that Clearstream held a corresponding amount of cash at JPMorgan in New York City. Id. at 687. The amended complaint named Iran, Clearstream, JPMorgan, Markazi, and UBAE as defendants, seeking: (1) declaratory relief identifying Markazi as the beneficial owner of the assets at issue, id. at 720-21; (2) rescission of fraudulent conveyances under New York Debtor and Creditor Law ("DCL") §§ 273-a, 276(a), against Iran, Markazi, Clearstream, and UBAE, id. at 721-25; (3) turnover of the $1.68 billion in assets at issue under New York Civil Practice Law and Rules ("C.P.L.R.") §§ 5225, 5227 and § 201(a) of the Terrorism Risk Insurance Act ("TRIA"), against Clearstream, Iran, JPMorgan, Markazi, and UBAE, id. at 725-27; (4) rescission of fraudulent conveyances under DCL §§ 273-a, 276, 278 and common law, against Clearstream and Markazi, id. at 728-29; and (5) unspecified equitable relief against each defendant, id. at 729.

         On April 9, 2014, the district court (Katherine B. Forrest, Judge) granted an ex parte application for an order directing the clerk of the district court to issue a writ of execution with respect to any Markazi-owned property in the possession of JPMorgan. Id. at 104-05. The district court thereafter held a hearing to address the defendants' argument that the writ was improper because the Clearstream correspondent account at JPMorgan contains "nothing . . . except cash, and the cash turns over in billions of dollars every day, so there's no possibility the cash in the account can be identified to any defendant/' including Markazi. Id. at 792. The district court thereupon vacated the order issuing the writ. Id. at 793, 800.

         The plaintiffs moved to reinstate the order and the defendants responded with various motions seeking dismissal of the amended complaint. Clearstream moved to dismiss on the ground that the assets were located in Luxembourg, and therefore immune from execution under the FSIA. Clearstream also argued that the plaintiffs released all non-turnover claims against Clearstream under their settlement agreement. Markazi moved to dismiss on similar jurisdictional grounds. JPMorgan moved for partial summary judgment on the plaintiffs' turnover claims on the ground that it possessed no assets owned by Markazi. Finally, UBAE moved to dismiss for want of subject-matter jurisdiction, and for partial summary judgment on the plaintiffs' non-turnover claims on the ground that those claims had been released by the UBAE settlement agreement.

         The parties' motions were accompanied by a voluminous record.[4]Among the documents before the district court was a chart depicting a "Recap of Total Debits [and] Credits" in Clearstream's correspondent account at JPMorgan for each month over the four-year period that Clearstream processed the bond proceeds at issue. Id. at 1959. The chart indicates that the Clearstream account at JPMorgan was both debited and credited many hundreds of billions of dollars each month. Moreover, the Clearstream correspondent account at JPMorgan frequently posted a negative balance. Id. JPMorgan submitted, inter alia, two declarations prepared by Gauthier Jonckheere, id. at 1862-68, 2533-43, a JPMorgan vice president and "relationship manager []" for the Clearstream account, id. at 1862. Jonckheere stated that Clearstream's correspondent account at JPMorgan is an "operating account" that processes "hundreds of bond-related payments each day." Id. at 1863. Because this is a general operating account, indeed Clearstream's only account at JPMorgan, "the account's balance at both the beginning and the end of a given business day would . . . be, if not $0, usually very low .... During the day, the account balance would frequently be negative . . . ." Id. at 1864. Jonckheere also asserted that "Clearstream's operating account at [JPMorgan] . . . holds no funds that are the property of Markazi" because all bond "proceeds have long since left Clearstream's operating account and are no longer maintained at [JPMorgan]." Id. at 1865. Jonckheere added that Clearstream never segregated Markazi's bond proceeds from or within its general operating account. Id. at 2537-39.

         Clearstream also submitted evidence concerning its JPMorgan correspondent account. For example, it produced a chart documenting its account balance at JPMorgan for each day in October 2012, during which the Clearstream correspondent account balance did not exceed $817, 959, 813.65, and was frequently negative. Id. at 1957. Clearstream also submitted a declaration executed by Mathias PapenfuB, then Head of Operations for Clearstream, id. at 1972, who stated: "Each business day Clearstream uses U.S. dollars deposited in the JPMorgan [a]ccount to pay its current U.S. dollar obligations. Each business day, approximately $7-9 billion flows into the JPMorgan [a]ccount, and each business day a roughly equivalent sum flows out." Id. at 1973. PapenfuB explained that "[t]he obligations credited to Clearstream by JPMorgan are booked as assets of Clearstream on Clearstream's balance sheet pursuant to applicable Luxembourg banking law and accounting rules." Id. "When Clearstream receives a payment in the JPMorgan [a]ccount on its own security entitlements, Clearstream credits the account of any customers in Luxembourg holding security entitlements against Clearstream relating to a security with the same [identification number]." Id. at 1974. PapenfuB corroborated Jonckheere's statement that "[n]o transfer of cash [was] made, " adding that "Clearstream does not hold funds in the JPMorgan [a]ccount in relation to specific U.S. dollar obligations to specific customers." Id. PapenfuB concluded that "Clearstream never issued instructions to JPMorgan to transfer any funds received in the JPMorgan [a]ccount to the [Clearstream account in Luxembourg], and no such transfers occurred." Id. at 1976.

         The plaintiffs proffered the opinions of a putative financial-services expert, Peter U. Vinella, Id. at 2385-440, who asserted that "the customary practice in international banking ... is for a securities intermediary (such as Clearstream) to segregate its assets from customer assets generally. Thus, the [assets at issue] should [not be] included as part of Clearstream's general operating funds and should remain in the USD JPMorgan [a]ccount, " id. at 2389. Vinella also stated that "even if Clearstream had failed and continues to fail to properly segregate the funds at issue in this matter in the [Clearstream account at JPMorgan] . . ., the Markazi USD [b]alance . . . still remains in the USD JPMorgan [a]ccount." Id. Vinella attributed evidence that the Clearstream correspondent account often reflected a near-zero or negative end-of-day balance, see, e.g., id. at 1957, 1959, 2568-698, to industry-standard "[s]weeps, " whereby the account's funds were "invested [by JPMorgan] in very short-dated USD investments and subsequently redeposited in the . . . JPMorgan [a]ccount the next day, " id. at 2422.

         On September 19, 2014, the district court heard arguments on the defendants' motions, focusing in particular on the nature and location of the assets at issue. See Joint Appendix ("J.A."[5]) at 83-151. Although the district court appeared to harbor some doubt about the validity of Vinella's expert report, id. at 88, it stopped short of holding a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), see J.A. at 105-06 (considering whether a Daubert hearing would be appropriate). Following oral argument, the district court issued an order declining to hold an evidentiary hearing on the nature and location of the assets at issue. See id. at 153.

         On February 20, 2015, the district court issued a single opinion and order granting the defendants' various motions to dismiss and for partial summary judgment on all claims in dispute. Peterson v. Islamic Republic of Iran, No. 13-cv-9195-KBF, 2015 WL 731221, 2015 U.S. Dist. LEXIS 20640 (S.D.N.Y. Feb. 20, 2015) ("Peterson IF) (construing each motion as one "for dismissal"). The district court first dismissed the plaintiffs' non-turnover claims against Clearstream, UBAE, and Markazi on the ground that those claims had been released by the Clearstream and UBAE settlement agreements. Id. at *6, 2015 U.S. Dist. LEXIS 20640, at *18-19 (dismissing the non-turnover claims against Clearstream); id. at *9, 2015 U.S. Dist. LEXIS 20640, at *28-30 (dismissing the non-turnover claims against UBAE); id. at *10, 2015 U.S. Dist. LEXIS 20640, at *3o-3i (dismissing the non-turnover claims against Markazi as a "beneficiary" of UBAE under the UBAE settlement).

         The district court also dismissed the plaintiffs' turnover claims on jurisdictional grounds, having found that the assets at issue are not in the United States:

[JPMorgan] received proceeds relating to the [assets], which it credited to a Clearstream account at [JPMorgan]. Whether it should have or should not have, Clearstream in turn credited amounts attributable to the [assets] to the UBAE/Bank Markazi account in Luxembourg. The [JPMorgan] records are clear that whatever happened to the proceeds, they are gone.

Id. at *6, 2015 U.S. Dist. LEXIS 20640, at *20. That finding sufficed to require dismissal of JPMorgan from the lawsuit because JPMorgan "does not have an account for UBAE or Bank Markazi." Id. at *10 n.17, 2015 U.S. Dist. LEXIS 20640, at *33 n.17. Turning to the remaining defendants, the district court concluded that Markazi's interest in book entries that Clear stream held in Luxembourg was not subject to turnover because the "FSIA does not allow for attachment of property outside of the United States." Id. at *10, 2015 U.S. Dist. LEXIS 20640, at *3i. Therefore, because Markazi "d[id] not maintain the assets that plaintiffs seek in the United States, " the district court held that it "lack[ed] subject-matter jurisdiction." Id.

         The plaintiffs appealed. With respect to the non-turnover claims, they argue that the Clearstream and UBAE settlement agreements: (1) do not apply to many of the plaintiffs, including several who were not party to Peterson I, Pis.' Br. at 23; and, in any event, (2) did not release the non-turnover claims against Clearstream, UBAE, or Markazi, id. at 24-33. With respect to the turnover claims, the plaintiffs argue that the court has subject-matter jurisdiction because the assets at issue are (1) cash holdings located in New York, id. at 47-51; and (2) therefore subject to turnover under the TRIA, id. at 35-36, and the FSIA, id. at 61-66. The plaintiffs argue in the alternative that even assets "located abroad" may be subject to turnover pursuant to the court's exercise of in personam jurisdiction over the holder of the assets. Id. at 55.

         DISCUSSION

         A. Standard of Review

         With respect to the non-turnover claims, the district court granted Clearstream's motion to dismiss and UBAE's motion for partial summary judgment on the ground that the Clearstream and UBAE settlement agreements released those claims. "We review a district court's interpretation of a contract de novo." Seabury Constr. Corp. v. Jeffrey Chain Corp., 289 F.3d 63, 67 (2d Cir. 2002).

         As to the turnover claims, "[w]e accord deferential review to a district court ruling on a petition for an order of attachment or execution under the FSIA." Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 285 (2d Cir. 2011). "We review de novo legal conclusions denying [or granting] FSIA immunity to a foreign sovereign or its property, " and factual findings for "abuse of discretion." NML Capital, Ltd. v. Republic of Argentina,680 F.3d 254, 256-57 (2d Cir. 2012). "A district court is said to have abused its discretion if it has, " inter alia, ...


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